          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                         Technical Sergeant DAVID J.A. GUTIERREZ
                                    United States Air Force

                                           ACM 37913 (rem)

                                           23 November 2015

         Sentence adjudged 19 January 2011 by GCM convened at McConnell Air
         Force Base, Kansas. Military Judge: William C. Muldoon (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 8 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for Appellant: Captain Michael A. Schrama (argued);
         Colonel Patrick J. Wells; and Kevin B. McDermott, Esquire.

         Appellate Counsel for the United States: Major Meredith L. Steer (argued);
         Colonel Katherine E. Oler; Major Mary Ellen Payne; and Gerald R. Bruce,
         Esquire.

                                                  Before

                             ALLRED, MITCHELL, and DUBRISKE
                                  Appellate Military Judges

                                     OPINION OF THE COURT
                                         UPON REMAND

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



MITCHELL, Senior Judge:

      A general court-martial composed of a military judge sitting alone convicted
Appellant, contrary to his pleas, of failing to obey a lawful order, indecent acts,
aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134, UCMJ,
10 U.S.C. §§ 892, 920, 928, 934. The military judge sentenced Appellant to a
dishonorable discharge, eight years of confinement, forfeiture of all pay and allowances,
and reduction to E-1. The convening authority approved the sentence as adjudged.

                                                 Background

       Appellant’s convictions stem from his failure to disclose that he had human
immunodeficiency virus (HIV) prior to engaging in otherwise consensual sexual activity
with multiple partners while he and his wife participated in “the swingers’ lifestyle.”
United States v. Gutierrez, 74 M.J. 61, 63 (C.A.A.F. 2015) (Gutierrez IV) (brackets and
internal quotation marks omitted).

        In 2007, Appellant tested positive for HIV. In 2009, Appellant was ordered by his
commanding officer to “inform sexual partners that [he was] HIV positive and use proper
methods to prevent the transfer of body fluids during sexual relations, including the use
of condoms providing an adequate barrier for HIV (e.g. latex).” Id. (internal quotation
marks omitted). Appellant refused to obey the order. Appellant engaged in sexual
intercourse and oral sodomy with at least seven partners without first informing them that
he was HIV positive. He further violated the order by engaging in unprotected sexual
activity with three of these partners.

       In March 2013, this court affirmed the findings and sentence. United States v.
Gutierrez, ACM 37913 (A.F. Ct. Crim. App. 21 March 2013) (unpub. op.) (Gutierrez I).
That decision was set aside by our superior court because of the improper appointment of
a civilian judge. United States v. Gutierrez, 73 M.J. 128 (C.A.A.F. 2013) (mem.)
(Gutierrez II). This court issued a second opinion, with a properly constituted panel,
again affirming Appellant’s convictions. United States v. Gutierrez, ACM 37913 (A.F.
Ct. Crim. App. 25 February 2014) (unpub. op.) (Gutierrez III). Upon review, our
superior court determined that the evidence was legally insufficient to support the
convictions for aggravated assault, but affirmed convictions for the lesser included
offense (LIO) of assault consummated by a battery as well as the convictions for failure
to obey a lawful order, indecent acts, and adultery. Gutierrez IV, 74 M.J. at 68. Our
superior court reversed our decision as to the sentence and remanded the case to this
court to either reassess the sentence or set it aside and order a rehearing. Id. Our superior
court also directed us to consider whether Appellant’s due process rights were violated by
the appellate delay that occurred in this case. Id.

       On remand, Appellant argues that the sentence should be set aside and remanded
for a new hearing and that his due process rights were violated by the appellate delay.1



1
    Oral argument was held on 20 October 2015.




                                                     2                        ACM 37913 (rem)
                                  Sentence Reassessment or Rehearing

       This court has “broad discretion when reassessing sentences.” United States v.
Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). If we “can determine to [our] satisfaction
that, absent any error, the sentence adjudged would have been of at least a certain
severity, then a sentence of that severity or less will be free of the prejudicial effects of
error.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In determining whether
to reassess a sentence or order a rehearing, we consider the totality of the circumstances
with the following as illustrative factors: (1) dramatic changes in the penalty landscape
and exposure, (2) the forum, (3) whether the remaining offenses capture the gravamen of
the criminal conduct, (4) whether significant or aggravating circumstances remain
admissible and relevant, and (5) whether the remaining offenses are the type with which
we as appellate judges have the experience and familiarity to reliably determine what
sentence would have been imposed at trial. Winckelmann, 73 M.J. at 15–16. Applying
these factors to this case, we are confident that reassessment is appropriate.

1. Change in the Penalty Landscape and Exposure

       There has been a change in the penalty landscape and exposure;2 however, this
change is not so drastic as to require a sentence rehearing. As the Winckelman court
noted, each factor is “illustrative, but not dispositive.” 73 M.J. at 15. Thus, a change in
the maximum punishment does not automatically require a sentence rehearing. See
Winckelman, 73 M.J. at 13, 16 (holding that it was not an abuse of discretion to reassess
the sentence where the maximum amount of confinement decreased from 115 years to 51
years); United States v. Jones, ACM 38434, unpub. op. at 20–22 (A.F. Ct. Crim. App. 13
March 2015), rev. denied __ M.J. __ No. 15-0564/AF (Daily Journal 6 July 2015)
(imposing the same sentence as adjudged and approved despite a decrease in the
maximum amount of confinement from 32 years and 6 months to 7 years and 6 months);
see also United States v. Burkhardt, ACM 38625, unpub. op. at 10 (A.F. Ct. Crim. App.
12 June 2015), rev. denied __ M.J. __ No. 15-0745/AF (Daily Journal 9 September 2015)
(reassessing the sentence after setting aside aggravated assault convictions related to the
sexual activity of an HIV-positive appellant); United States v. Atchak, ACM 38526,
unpub. op. at 17 (A.F. Ct. Crim. App. 10 August 2015) (reassessing the sentence after
setting aside aggravated assault convictions related to the sexual activity of an HIV-
positive appellant); United States v. McGruder, Army 20130294 (Army Ct. Crim. App.
30 October 2015) (unpub. op.) (reassessing the sentence after affirming an LIO of assault
consummated by a battery for sexual intercourse while not revealing HIV-positive status
and setting aside other offenses). Additionally, the adjudged sentence of confinement in

2
  At trial, Appellant faced a maximum sentence of a dishonorable discharge, confinement for 33 years and 6 months,
total forfeiture of pay and allowances, and reduction to E-1. After our superior court set aside the aggravated assault
convictions and found Appellant guilty of the lesser included offense of assault consummated by a battery, the
maximum amount of confinement was reduced to 16 years.




                                                          3                                        ACM 37913 (rem)
this case is only half of the maximum that could have been imposed even under the new
penalty landscape.

       Therefore, the change in the penalty landscape does not make a sentence rehearing
“the only fair course of action” in this case. See United States v. Buber, 62 M.J. 476, 480
(C.A.A.F. 2006). While there has been a change, an analysis of the totality of the
circumstances and of the remaining Winckelman factors lead us to the conclusion that
sentence reassessment is appropriate.

2. Forum

       Appellant was sentenced by a military judge. This factor weighs in favor of
reassessment because we can be more confident what a military judge would have done
as opposed to members. Winckelman, 73 M.J. at 16.

3. Gravamen of the Criminal Conduct

       The remaining offenses capture the gravamen of the criminal conduct. Appellant
was found guilty of the LIO of assault consummated by a battery for each aggravated
assault specification. Appellant also remains convicted of multiple specifications of
failure to obey a lawful order, indecent acts, and adultery. In sum, Appellant remains
convicted of committing the same acts, on the same dates, in the same locations, and
harming the same individuals. Absent extraordinary circumstances, we believe
appellants are sentenced based on their actions, not the name of the offense they are
charged with committing. United States v. Davis, 48 M.J. 494, 495–96 (C.A.A.F. 1998);
Jones, unpub. op. at 21. We are even more convinced of this when, as here, an appellant
has been sentenced by a military judge.

4. Admissibility of Aggravating Circumstances

       The aggravating circumstances remain relevant and admissible. Appellant is still
guilty of violating a lawful order just days after receiving this order from his commander.
Moreover, the facts and circumstances admitted in the original proceeding as evidence of
the aggravated assault offenses would still be relevant and admissible either in findings or
in sentencing regarding the LIO of assault consummated by battery. Appellant is guilty
of this LIO because his “conduct included an offensive touching to which his sexual
partners did not provide meaningful informed consent.” Gutierrez IV, 74 M.J. at 68. The
testimony by the victims that they asked him about his HIV status, that he falsely claimed
he was HIV negative, their personal experiences with family members who had
contracted the HIV virus and resulting complications (to include the death of a brother),
and the reasons why they would not have consented to sexual activity had he been
truthful is all evidence that would have continued to be admissible. The potentially
mitigating evidence regarding the low statistical likelihood that Appellant’s conduct


                                             4                               ACM 37913 (rem)
would transmit the virus to his partners and that none of his partners had tested positive
for HIV as of the date of the court-martial would also be admissible. In sum, a new
sentencing hearing would not present new evidence or limit the evidence admitted during
Appellant’s original sentencing hearing.

5. Ability to Determine What Sentence Would Have Been Imposed

       We have the experience and familiarity to determine a proper sentence in this case.
Appellant has been convicted of failure to obey a lawful order, committing indecent acts,
assault consummated by battery, and adultery. These are not novel charges. We interpret
Appellant’s position at oral argument to be that our superior court judicially created a
new offense to which this court has no experience in determining an appropriate
sentence. We disagree. Our superior court overruled United States v. Joseph, 37 M.J.
392 (C.M.A. 1993), and reversed 22 years of stare decisis; however, as explained above,
the evidence in aggravation (and in mitigation) would still be admissible. We have
experience and familiarity with determining a proper sentence in cases involving
“offensive touching to which . . . sexual partners did not provide meaningful informed
consent.” Gutierrez IV, 74 M.J. at 68. Under these circumstances, we are confident that
we have the collective knowledge and experience to reliably determine what sentence
would have been imposed.

                                 Sentence Reassessment

        After a thorough review of the Winckelman factors, we are convinced that
reassessing Appellant’s sentence is “more expeditious[], more intelligent[], and more
fair[]” than returning the case for a sentence rehearing. Winckelman, 73 M.J. at 14
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). Under the totality of the
circumstances, we are confident that we can reliably determine that the military judge,
absent any error, would have imposed a sentence of at least a bad-conduct discharge, six
years of confinement, total forfeiture of pay and allowances, and reduction to E-1.

                                    Post-Trial Delay

       We review de novo whether an appellant has been denied the due process right to
speedy post-trial review and whether any constitutional error is harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). In United
States v. Moreno, the Court of Appeals for the Armed Forces established certain post-trial
processing time standards. 63 M.J. 129, 142 (C.A.A.F. 2006). A presumption of
unreasonable delay arises when an appellate decision is not rendered within 18 months of
the case being docketed with this court. Id. The Moreno standards continue to apply as a
case moves through the appellate process; however, the Moreno standard is not violated
when each period of time used for the resolution of legal issues between this court and
our superior court is within the 18-month standard. United States v. Mackie, 72 M.J. 135,


                                            5                              ACM 37913 (rem)
135–36 (C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F.
2010). However, when a stage of appellate review is not completed within 18 months, it
is a presumptively unreasonable delay and triggers an analysis of the four factors
elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972). Those factors are “(1) the
length of the delay; (2) the reasons for the delay; (3) whether the appellant made a
demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala,
61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530. If we are able to
conclude that any error was harmless beyond a reasonable doubt, we do not need to
engage in a separate analysis of each factor. See Allison, 63 M.J. at 370.

       The 22 months between docketing and the opinion in Gutierrez I is presumptively
unreasonable; thus, we move to the Barker factors, focusing our attention on prejudice to
Appellant. Appellant argues that he has been prejudiced by the delay because (1) he was
subject to oppressive incarceration and (2) he has suffered particularized anxiety and
concern.

       In arguing that the incarceration was oppressive, Appellant compares his situation
to Moreno and concludes that, because the appellant in Moreno suffered oppressive
incarceration when the charges were set aside, Appellant was also prejudiced when the
aggravated assault charges were set aside. Appellant’s reliance on Moreno is misplaced
because the oppressive incarceration sub-factor is “directly related to the success or
failure of an appellant’s substantive appeal.” Moreno, 63 M.J. at 139. Unlike Moreno,
Appellant’s conviction was not set aside; instead, he remains convicted of numerous
crimes, including an LIO of the charge which has been set aside. Appellant’s
incarceration has not been oppressive.

       Appellant also argues that he has suffered prejudice because he was subjected to
anxiety and concern during the appellate process. In an attempt to demonstrate that his
anxiety and concern were more than that normally experienced by prisoners awaiting
appellate review, Appellant compares the “media scrutiny” of his case to the appellant in
Moreno who had to register as a sex offender. We are not persuaded by this comparison.
Unlike Moreno where the appellant was no longer required to register as a sex offender
when his convictions were set aside, our superior court’s decision does not entitle
Appellant to relief from “media scrutiny.” Appellant remains convicted of crimes that
arose from his failure to obey a lawful order, refusal to inform his sexual partners of his
HIV status, indecent acts, and adultery. Whatever “media scrutiny” occurred under the
original facts of this case would have been present if Appellant had been charged with
assault consummated by battery instead of aggravated assault. Therefore, we are not
convinced that Appellant suffered any anxiety or concern not normally experienced by
prisoners awaiting appellate review.

       When there is no showing of prejudice under the fourth Barker factor, “we will
find a due process violation only when, in balancing the other three factors, the delay is


                                             6                              ACM 37913 (rem)
so egregious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J.
353, 362 (C.A.A.F. 2006). Having considered the totality of the circumstances and the
entire record, when we balance the other three factors, we find the post-trial delay in the
initial processing of this case to not be so egregious as to adversely affect the public’s
perception of the fairness and integrity of the military justice system. We are convinced
that even if there is error, it is harmless beyond a reasonable doubt.

        A finding of harmless error does not end the inquiry. Under Article 66, UCMJ, 10
U.S.C. § 866(c), we have the unique authority to grant sentence relief for excessive post-
trial delay without the showing of actual prejudice required by Article 59(a), UCMJ, 10
U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 25 (C.A.A.F. 2006). In United States v. Gay, 74
M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we identified a list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Those factors include how long the delay exceeded appellate review standards, the
reasons for the delay, whether the government acted with bad faith or gross indifference,
evidence of institutional neglect, harm to Appellant or to the institution, if relief is
consistent with the goals of both justice and good order and discipline, and whether this
court can provide meaningful relief. Id. No single factor is dispositive and we may
consider other factors as appropriate. Id. After examining the appropriate factors, we
determine that no relief is warranted.

        Although the initial delay exceeded the Moreno standard by four months, no other
time period has exceeded the standards. Even analyzing the entire period from the time
the case was first docketed until today, we find there was no bad faith or gross negligence
in the post-trial processing. The reason for the delay after our initial decision was to
allow this court and our superior court to consider a constitutional issue of first
impression concerning whether the Secretary of Defense had the authority to appoint a
civilian employee to the courts of criminal appeals. Subsequent delays were the result of
appellate review of the issue concerning the statistical probabilities of transmitting an
infectious disease through sexual contact and the legal standard of whether those
probabilities were likely to result in death or grievous bodily harm. Our superior court’s
decision overturned more than two decades of military precedent regarding how this legal
standard applied to HIV cases. Based on these facts, we find no evidence of harm to the
integrity of the military justice system.

      After our review of the entire record, we conclude that additional sentence relief
under Article 66, UCMJ, is not warranted.




                                             7                              ACM 37913 (rem)
                                        Conclusion

       We have reassessed the sentence to a bad-conduct discharge, six years of
confinement, total forfeiture of pay and allowances, and reduction to E-1. The findings,
as modified by our superior court, and sentence, as reassessed, are correct in law and fact,
and no error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ. Accordingly, the findings, as modified, and the
sentence, as reassessed, are AFFIRMED.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                             8                               ACM 37913 (rem)
