                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                 UNITED STATES

                                                            v.

                                 Airman First Class BRANDUR G. JENSEN
                                          United States Air Force

                                                     ACM 38669

                                                  3 September 2015

               Sentence adjudged 27 May 2014 by GCM convened at Sheppard Air Force
               Base, Texas. Military Judge: Matthew S. Ward (sitting alone).

               Approved Sentence: Bad-conduct discharge, confinement for 6 months,
               forfeiture of all pay and allowances, and reduction to E-1.

               Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

               Appellate Counsel for the United States: Gerald R. Bruce, Esquire.

                                                         Before

                                      MITCHELL, WEBER, and TELLER
                                          Appellate Military Judges

                                            OPINION OF THE COURT

                This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.




Senior Judge TELLER delivered the opinion of the court, in which Judge WEBER
joined.1 Senior Judge MITCHELL filed a separate opinion, concurring in part.

        Appellant was convicted, in accordance with his pleas, by a military judge sitting
alone, of sexual assault of a child and attempting to persuade a minor to engage in sexual
activity of a criminal nature, in violation of Articles 120b and 134, UCMJ, 10 U.S.C. §§
920b, 934. The court sentenced him to a bad-conduct discharge, confinement for 6
months, total forfeitures, and reduction to E-1. The sentence was approved as adjudged.

1
    Judge Weber participated in this decision prior to his reassignment.
       The case was submitted for our review under Article 66(c), UCMJ, 10 U.S.C. §
866(c), on its merits. This court then specified the issue of whether, in light of United
States v. Schell, 72 M.J. 339 (C.A.A.F. 2013), there is a substantial basis in law for
questioning Appellant’s plea of guilty to the specifications alleging that Appellant
attempted to persuade a minor to engage in sexual activity of a criminal nature.

       We find that the military judge erred in advising Appellant of the elements of
those specifications, raising a substantial basis in law for questioning the providence of
the plea. We set aside the finding of guilt to those specifications and affirm the
remaining finding. A rehearing or other action under Rule for Courts-Martial (R.C.M.)
1107(e)(1)(B) is authorized.

                                        Background

        By the time of the court-martial, Appellant was a 19-year-old Airman in technical
training with less than two years’ time in service. During late 2012 and early 2013,
Appellant engaged in sexually explicit discussions over Facebook, Skype, and sometimes
by telephone with three girls he knew to be under the age of sixteen, to include trying to
persuade them to have sexual intercourse with him. The girls lived in or near Appellant’s
hometown in Nevada and he knew them either directly or indirectly. At least one of the
girls he had known for several years and he was friends with her prior to joining the Air
Force. Appellant told one of the girls that they should have their first sexual intercourse
with each other since they had professed their love for each other. For this conduct,
Appellant was charged with attempting to persuade two of the girls to engage in sexual
activity of a criminal nature. He also pled guilty to sexual assault of a child for engaging
in sexual intercourse with one of the girls in December 2012 when she was 14 years old.

      His conduct came to light after the mother of one of the girls confronted Appellant
over her daughter’s Facebook account and later reported it to civilian police. The Air
Force Office of Special Investigations (AFOSI) took over the investigation soon after the
Air Force became aware of the complaint. Appellant cooperated with AFOSI once
confronted and made a full confession.

                              Providence of Appellant’s Plea

       A military judge must determine whether an adequate basis in law and fact exists
to support a guilty plea by establishing on the record that the “acts or the omissions of the
accused constitute the offense or offenses to which he is pleading guilty.” United States
v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Acceptance of a guilty plea is reviewed for
an abuse of discretion, “and questions of law arising from the guilty plea [are reviewed]
de novo.” United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “For [an
appellate court] to find a plea of guilty to be knowing and voluntary, the record of trial
‘must reflect’ that the elements of ‘each offense charged have been explained to the

                                              2                                    ACM 38669
accused’ by the military judge.” United States v. Redlinski, 58 M.J. 117, 119
(C.A.A.F. 2003) (quoting United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969)); see
also Article 45, UCMJ, 10 U.S.C. § 845; R.C.M. 910(c)(1).

        The two Article 134, UCMJ, specifications charged Appellant with attempting to
persuade the two minors, using a means of interstate commerce, to engage in sexual
activity of a criminal nature, in violation of 18 U.S.C. § 2422(b).2 The requirements for
the plea inquiry in cases alleging violations of 18 U.S.C. § 2422(b) under Article 134,
UCMJ, were addressed by the Court of Appeals for the Armed Forces in United States v.
Schell on 8 July 2013, about 12 months prior to the trial in this case. 72 M.J. at 346.
That opinion held the plea inquiry must cover the legal requirement that Appellant took a
substantial step towards carrying out his intent, even if there is evidence of such a step in
the plea inquiry and stipulation of fact.

       The government distinguishes Schell on the basis that the opinion affirmatively
states Schell was prosecuted under Clause 3 of Article 134, UCMJ, for a violation of a
“crime and offense not capital,” in contrast to the present case where the military judge
explicitly limited the prosecution to Clause 2.3 Based on that distinction, the government
contends “[b]ecause the military judge concluded that [this case] was a clause 2
prosecution, the military judge determined that the prosecution had to prove two
elements, namely that Appellant committed an act and that the act was of a nature to
bring discredit upon the armed forces.” The government further asserts “the military
judge’s description of the elements was perhaps more robust than was required for a
clause 2 prosecution, but the expanded elements provided [inured] to Appellant’s benefit
and caused him no harm.”4

       Although a specification may properly state an offense by alleging merely that the
accused did or failed to do certain acts, and that under the circumstances the accused’s
conduct was of a nature to bring discredit upon the armed forces, the government may not
avoid otherwise applicable legal concepts simply by charging in that fashion. This is
particularly true when the alleged act is an attempt to engage in other specified conduct.

2
  This statute states “Whoever, using the mail or any facility or means of interstate or foreign commerce, or within
the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or
coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and
imprisoned not less than 10 years or for life.” 18 U.S.C. §2422(b).
3
  The military judge’s finding to that effect is not before us on appeal.
4
  This argument may have been more convincing had the trial court not applied the maximum punishment derived
from 18 U.S.C. § 2422(b), which may be applied only “when every element of the federal crime, except the
jurisdictional element, was included in the specification.” United States v. Leonard, 64 M.J. 381, 384
(C.A.A.F. 2007). If the government intended to avail itself of the maximum punishment from § 2422(b), it must
have ensured the court covered all the elements applicable to § 2422(b) in establishing that Appellant freely and
voluntarily subjected himself to that maximum punishment through his plea. See United States v. Beaty, 70 M.J. 39,
45 (C.A.A.F. 2011) (holding that an Article 134, UCMJ, offense for child pornography that was not directly
analogous to federal criminal statute was a simple disorder).


                                                          3                                              ACM 38669
“Unlike some simple military offenses, attempt is a more complex, inchoate offense that
includes two specific elements designed to distinguish it from mere preparation.”
Redlinski, 58 M.J. at 119 (emphasis added). Although the requirement that a criminal
attempt constitute more than mere preparation is incorporated in Article 80, UCMJ,
10 U.S.C. § 880, which was specifically at issue in Redlinski, its genesis lies in previous
court decisions. See Drafter’s Analysis, MCM, A23-2. As Justice Holmes articulated in
Swift & Co. v. United States, “Not every act that may be done with intent to produce an
unlawful result is unlawful, or constitutes an attempt. It is a question of proximity and
degree. The distinction between mere preparation and attempt is well known in the
criminal law.” 196 U.S. 375, 402 (1905). The Schell court echoed this longstanding
distinction, holding that the substantial step element “ensures that mere thought crimes
are not prosecuted.” Schell, 72 M.J. at 344.

       Based on this analysis, we find that the holding in Schell was not predicated on
18 U.S.C. § 2422(b) alone, but rather on the nature of the act alleged—an attempt to
engage in certain behavior. We are convinced that ensuring the providence of a guilty
plea in these circumstances includes showing that the accused understood the legal
requirement that he took a substantial step, whether the charge is framed under Clause 3
as a violation of an attempt statute such as 18 U.S.C. § 2422(b) or it is framed under
Clause 2 alleging an attempt to commit some other act. What sets the case apart is the
inchoate nature of the conduct alleged, not which clause of Article 134, UCMJ, the
government has charged.

        Our conclusion is reinforced by the facts of Schell, in which the government
alleged and the colloquy established that Schell’s conduct was service discrediting.
Schell, 72 M.J. 339. If the plea inquiry there would have been sufficient to support a
finding of guilt under a Clause 2 theory of liability, we are confident the Schell court
would have addressed that possibility. See Article 59(b), UCMJ, 10 U.S.C. § 859(b)
(stating that an appellate court may affirm so much of a finding as includes a lesser
included offense); United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (stating that
Clause 2 may be a lesser included offense of offenses alleged under Clause 3 depending
on the drafting of the specification).

       The government further argues that Appellant’s signed confession in his
stipulation of fact convincingly proves he was aware of the substantial step element and
that he confessed to meeting that element. The government goes on to cite two specific
paragraphs in the stipulation in which Appellant admits that certain conduct constituted
“substantial steps” toward accomplishing an offense. Indeed, as the government
contends, the record is replete with admissions that Appellant engaged in conduct that
under any reasonable interpretation would constitute more than mere preparation. In
light of these admissions, the government’s argument has substantial facial appeal. The
Schell court, however, explicitly disclaimed this argument.



                                             4                                   ACM 38669
                  That Schell admitted facts during his plea colloquy that are
                  likely sufficient to prove that he took a substantial step
                  towards enticing “Taylor,”5 does not answer the altogether
                  different question whether he understood that a substantial
                  step was necessary to make his conduct criminal. Even
                  though Schell agreed that the military judge correctly
                  described his crime, and admitted that he took “steps” to
                  attempt to persuade “Taylor,” the record before us does not
                  demonstrate that Schell understood how the law related to the
                  facts.

Schell, 72 M.J. at 346.

       Neither the inquiry nor the stipulation of fact in this case established that
Appellant understood the government must show, as a legal matter, that Appellant made
a substantial step towards enticing the girls. Because the plea inquiry failed to meet the
unambiguous requirements under Schell, we find a substantial basis in law for
questioning the providence of the plea to that offense. 6

                                                    Conclusion

       Appellant’s conviction of Charge I and its Specification, alleging a violation of
Article 120b, UCMJ, is affirmed. His pleas to Charge II and its Specifications, alleging a
violation of Article 134, UCMJ, were improvident. Accordingly, his conviction of
Charge II and its Specifications and the sentence are set aside.

       The record is returned to The Judge Advocate General for remand to the
convening authority who may order a rehearing on Charge II and the sentence or take
other discretionary action under R.C.M. 1107(e)(1)(B). Upon completion of the
convening authority’s subsequent action, the case shall be returned to this court for
further review. United States v. Johnson, 45 M.J. 88, 89 (C.A.A.F. 1996).

MITCHELL, Senior Judge, concurring in part:

       I concur with the majority’s reasoning and the result in setting aside Charge II and
its Specifications. I do not join them in their corrective action authorizing a rehearing,
instead I would reassess the sentence to the approved sentence.


5
  “Taylor” was the fictitious persona of an underage girl assumed by the undercover agent.
6
   We also note that the military judge apparently misstated another element by suggesting Appellant had to
specifically intend to engage in the sexual activity rather than simply intend to persuade or entice the child to engage
in the act. Because we find our superior court’s holding on the granted issue in Schell controlling, we do not reach
that issue and trust that any error will be rectified if a rehearing is ordered.


                                                           5                                               ACM 38669
        In reaching this conclusion, I recognize the convening authority has lost some of
the benefit of the pretrial agreement bargain in that a charge and two specifications have
now been dismissed on appeal. Appellant fulfilled his obligations under the pretrial
agreement at the trial level and he did not raise any issues on appeal. However, the right
to full appellate review under Article 66, UCMJ, cannot be waived by the submission of a
case to this court on its merits. Accordingly, we fulfilled our obligations under Article
66, UCMJ, to determine if the findings are both factually and legally correct.

       This court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly held
that 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.A.A.F. 1986). This analysis is based on a totality of the circumstances with the
following as illustrative factors: dramatic changes in the penalty landscape and exposure,
the forum, whether the remaining offenses capture the gravamen of the criminal conduct,
whether significant or aggravating circumstances remain admissible and relevant, and
whether the remaining offenses are the type that we as appellate judges have experience
and familiarity with to reliably determine what sentence would have been imposed at
trial. Winckelmann, 73 M.J. at 15–16.

       The forum was military judge alone and thus we are “more likely to be certain of
what a military judge would have done.” Winckelmann, 73 M.J. at 16. Even though the
50-year maximum sentence announced by the military judge would be reduced to 30
years, that maximum is still well in excess of the adjudged sentence. Therefore, I would
conclude that there was not a proportionally dramatic change in the penalty exposure.
The remaining offense of having sexual intercourse with a 14-year-old girl captures the
gravamen of his criminal conduct. The evidence of his interaction with at least one of the
other girls would likely still have been admissible. This court has experience and
familiarity with determining fair and appropriate sentences for this type of offense. Even
after a rehearing on these charges and specifications, the convening authority cannot
approve a sentence greater than the one originally approved. After evaluating all the
relevant factors, I would reassess the sentence to the adjudged and approved sentence of a
bad-conduct discharge, confinement for 6 months, forfeiture of all pay and allowances,
and a reduction to E-1.



              FOR THE COURT



              STEVEN LUCAS
              Clerk of the Court


                                              6                                   ACM 38669
