              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       BRIAN K. PARKER
            GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

                           NMCCA 201400066
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 1 October 2013.
Military Judge: LtCol David Jones, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: LtCol R.G. Palmer,
USMC.
For Appellant: LT Jonathan Hawkins, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                            22 January 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of three
specifications of attempting to violate a lawful general order,
willful disobedience of a lawful order, seven specifications of
violation a lawful general order, two specifications of sodomy,
four specifications of adultery, and one specification of
solicitation of indecent conduct, in violation of Articles 80,
90, 92, 125, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 880, 890, 892, 925, and 934. The military judge
sentenced the appellant to confinement for 60 months, reduction
to pay grade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged and,
“[s]ubject, to the limitations contained in the [UCMJ], the
Manual for Courts-Martial, applicable regulations, and this
action,” ordered it executed. 1
     The appellant asserts three assignments of error: (1) that
the difference in maximum punishments applicable to consensual
sexual intercourse prosecuted under Articles 92 and 134, UCMJ,
and the maximum punishment applicable to consensual sodomy
prosecuted under Article 125, UCMJ, lacks a rational basis and
is, therefore, unconstitutional; (2) that the charging scheme
unreasonably multiplied the charges for sentencing purposes;
and, (3) that his sentence was inappropriately severe.
     After carefully considering the record of trial, the
submissions of the parties, and their excellent oral arguments,
we conclude that the findings and sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
                                  Background

     While on recruiting duty, the appellant tried,
unsuccessfully, to establish unduly familiar relationships with
three recently recruited Marines in violation of Article 1165,
U.S. Navy Regulations (1990). He also sought or engaged in
nonprofessional personal relationships with seven potential
recruits, or “poolees,” in violation of a lawful general order
governing recruiter conduct. 2 These relationships involved
making inappropriate comments and sending vulgar text messages
to poolees, often regarding incest and child sexual abuse. The
relationships also involved engaging in consensual sodomy with
two poolees (Ms. SMH and Ms. MLH), committing adultery with
these two and one other poolee (Ms. LJY), and soliciting one of
these poolees (Ms. SMH) to covertly photograph or videotape her
mother and sister (a recent recruit) in a state of undress.
1
   “Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered
executed until, after the completion of direct appellate review, there is a
final judgment as to the legality of the proceedings.” United States v.
Bailey, 68 M.J. 409, 409 (C.A.A.F. 2009) (summary disposition). However, “to
the extent that the convening authority's action purport[s] to execute the
[dishonorable] discharge, it [is] a nullity.” Id.
2
    Depot Order 1100.5A, ¶4 (24 Mar 2005).
                                       2
Although unsuccessful in his attempts to seduce Ms. SMH’s
sister, the appellant did commit adultery with Ms. SMH’s mother.
     During his conversations with several of the potential
recruits involved, the appellant repeatedly claimed he had had
sex with his ten-year-old son, had engaged in sex with his ex-
wife while their son watched or participated, had sex with his
minor niece, and had engaged in bestiality. He repeatedly
expressed to Ms. SMH his desire to engage in group sex with Ms.
SMH and her sister and mother. Texts between the appellant and
Ms. SMH discussed how they could rape Ms. SMH’s sister after
getting the sister drunk. The appellant also shared with Ms.
SMH compromising photos that other poolees and a former
recruiter in his office had sent him, and discussed in detail
with Ms. SMH his sexual activity with other poolees and the
fellow recruiter.
     After the investigation into his misconduct had begun, the
appellant received a military protective order (MPO) to have no
contact with those involved in the investigation. He
subsequently violated that order by marrying a Marine
specifically named in the MPO, with whom he was suspected of
having committed adultery. 3
     Additional facts necessary to address the assignments of
error will be provided below.
                  Maximum Punishment under Article 125
     The appellant does not claim the offense of sodomy, as
proscribed by Article 125, UCMJ, and limited by United States v.
Marcum, 60 M.J. 198 (C.A.A.F. 2004), is unconstitutional.
Rather, he claims the Don’t Ask, Don’t Tell Repeal Act of 2010 4
removed any rational basis for treating consensual sodomy
differently from consensual sexual intercourse for sentencing
purposes, and that this present lack of rational basis renders
the Article 125, UCMJ, maximum punishment unconstitutional. He
bases his claim on the fact that an act of consensual sodomy,
potentially punishable under Articles 92, 125, and 134, UCMJ,
carries a maximum sentence including five years’ confinement,
while consensual sexual intercourse, potentially punishable



3
   The appellant divorced his first wife the day before he married the Marine
and violated the MPO. He was married to his first wife throughout the period
in which he committed the balance of the charged misconduct.
4
    Pub. L. No. 111-321, 124 Stat. 3515 (2010).


                                       3
under Articles 92 and 134, UCMJ, has a maximum punishment
including only two years’ confinement.
     As a threshold matter, we must address whether the
appellant waived review of the issue by not raising it at trial.
Here, the appellant’s trial defense counsel (TDC) concurred with
the military judge’s charge-by-charge calculation of the
applicable maximum punishment. In doing so, he agreed with the
military judge’s statement that each Article 125, UCMJ,
specification carried a maximum punishment of five years.
Record at 22. While the military judge and TDC did not
specifically discuss the equal protection claim now raised on
appeal, they did walk through how they arrived at the 44-year
maximum confinement. The appellant proceeded to plead guilty,
with the only open issue being a motion for appropriate relief
based upon an unreasonable multiplication of charges. 5 The
appellant in no way indicated that he intended his plea to be
conditional.
     “‘An unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the
proceedings.’” United States v. Lee, 73 M.J. 166, 167 (C.A.A.F.
2014) (quoting United States v. Bradley, 68 M.J. 279, 281
(C.A.A.F. 2010)). The limitations on this broad rule apply only
in situations “‘where on the face of the record the court had no
power to enter the conviction or impose the sentence.’” Id. at
170 (citing United States v. Broce, 488 U.S. 563, 569 (1989)).
There is, however, a presumption against the waiver of a
constitutional right absent a clear relinquishment of the right
by the appellant. United States v. Goings, 72 M.J. 202, 205
(C.A.A.F. 2013). Also, incorrect advice regarding the maximum
punishment can, under certain circumstances, render a plea
improvident. See United States v. Castrillon-Moreno, 7 M.J.
414, 414-15 (C.M.A. 1979). Accordingly, we will assume, for the
sake of this analysis, the issue was forfeited, not waived.
     We review whether a statute is unconstitutional as applied
de novo, conducting a fact-specific inquiry; when such a claim
is raised for the first time on appeal, we review for plain
error. Goings, 72 M.J. at 205. We may grant relief “only
where: (1) there was error, (2) the error was plain and obvious,
and, (3) that error materially prejudiced a substantial right of
the [appellant].” United States v. Sweeney, 70 M.J. 296, 304
(C.A.A.F. 2011) (citation omitted).


5
   The military judge ruled on this motion immediately before announcing his
findings.
                                      4
1. Error
     The appellant claims the military judge violated the
appellant’s right to equal protection when he applied Article
125’s maximum punishment of five years for each sodomy
specification. We disagree.
     An equal protection claim necessarily requires an appellant
demonstrate how he is being treated differently than someone
else who is similarly situated. Here, the appellant has not
done so. He has not shown how the Government, in choosing to
charge him with sodomy (with its attendant five-year maximum
punishment) treated him any differently than other
servicemembers in similar circumstances. Instead, he points
only to the disparity in maximum punishment applicable to the
various acts of misconduct he alone committed. This is no more
an equal protection issue than is any decision to charge an
accused with the most serious charge supported by his actions.
Absent any evidence that the Government is, without a rational
basis, treating that accused differently than another, this is a
matter within the prosecutor’s prerogative. See United States
v. Armstrong, 517 U.S. 456, 465 (1996) (discussing “[j]udicial
deference to the decisions of these executive officers”). The
Supreme Court “has long recognized that when an act violates
more than one criminal statute, the Government may prosecute
under either so long as it does not discriminate against any
class of defendants.” United States v. Batchelder, 442 U.S.
114, 123-24 (1979) (addressing two criminal statutes applying
different punishments to identical criminal acts). “The
prosecutor may be influenced by the penalties available upon
conviction, but this fact, standing alone, does not give rise to
a violation of the Equal Protection or Due Process Clause.” Id.
at 125 (citations omitted).
     Furthermore, even assuming this issue is properly
characterized as a question of equal protection, we find no
error. Article 125, UCMJ, lists four possible maximum sentences
whose applicability depends on whether the sodomy was: (1)
performed by force or without consent; (2) with a child at least
twelve, but less than sixteen years of age; (3) with a child
under the age of twelve; or (4) “Other cases.” This last
category encompasses a broad range of unnatural carnal
copulation, to include both bestiality and, in some instances,
consensual sodomy.
     In Marcum, the Court of Appeals for the Armed Forces (CAAF)
created a three-part test to determine whether an act of
consensual sodomy falls outside the protected liberty interest

                                5
recognized by the Supreme Court in Lawrence v. Texas, 539 U.S.
558 (2003). This test asks: (1) did the conduct involve
private, consensual sexual activity between adults; (2) did the
conduct involve any of the behavior or factors identified by the
Supreme Court as not involved in Lawrence; and (3) are there
“factors relevant solely in the military environment” that
affect the applicability of the Lawrence liberty interest?
Marcum, 60 M.J. at 206-07. These behaviors and factors
themselves can involve a broad range of activity, some certainly
more egregious than others.
     The maximum sentence provided by the President for any
punitive article in the UCMJ necessarily covers the entire range
of criminal activity encompassed by that offense. Even where
aggravating factors are identified as deserving of higher
maximum punishments, the specified limitations are just that -
an upper limit on the range of permissible punishments, not an
indication of an appropriate sentence for a given offense. The
appellant’s argument that his exposure to a higher maximum
punishment for consensual sodomy when compared to consensual
sexual intercourse misses the point that Article 125, UCMJ, (and
its maximum punishment for “Other cases”) covers a range of
unlawful activity that includes far more than a private,
consensual sexual act between two adults. That the appellant’s
acts of sodomy fall under a punitive article that provides for a
broader range of punishment applicable to a broader range of
misconduct, does not establish that Congress or the President is
treating similar consensual sexual acts in a constitutionally
impermissible dissimilar manner.
2. Plain Error
     Assuming, arguendo, that the military judge erred, we look
to see whether that error was plain and obvious. “In
determining whether [an] error was clear or obvious, we look to
law at the time of the appeal.” United States v. Knapp, 73 M.J.
33, 37 (C.A.A.F. 2014) (citations omitted). The specific
question raised by the appellant is far from well-settled; as
the appellant correctly states, “[t]his is an issue of first
impression.” Appellant’s Brief of 14 Jul 2014 at 7. The only
previous indication that this issue may be worthy of examination
is in a footnote in a 2013 CAAF opinion. 6 Such dicta, even from
our superior court, is insufficient to meet the high burden of

6
   The CAAF identified, but did not address, a potential issue related to the
“rational basis for the disparate sentencing scheme in the wake of The Don’t
Ask, Don’t Tell Repeal Act of 2010 . . . between sodomy and other offenses
implicating sexual acts under the UCMJ.” United States v. Castellano, 72
M.J. 217, 220 n.7 (C.A.A.F. 2013).
                                      6
demonstrating plain error. Regardless, even if we further
assume the military judge committed plain error, the appellant
has failed to establish that any alleged error on this matter,
plain or otherwise, materially prejudiced a substantial right.
3.   Material Prejudice
     The maximum punishment in this case, as calculated by the
military judge and agreed to by all parties at trial, was
confinement for 44 years, reduction to pay grade E-1, total
forfeitures, a fine, and a dishonorable discharge. Assuming the
appellant is correct that the maximum punishment for each sodomy
specification should have included only two years’ confinement,
the total maximum confinement possible would have been 38 years.
The military judge sentenced the appellant to 60 months. Given
the great disparity between the potential and adjudged sentence,
we do not believe the six-year reduction argued by the appellant
would have affected the ultimate sentence. The consensual
sodomy did not stand out from the appellant’s other criminal
acts. All of the sexual offenses charged were consensual in
nature, and, other than adultery with the mother of a recent
recruit and a poolee, took place in the context of inappropriate
personal relationships with potential recruits. There is
nothing in the record to indicate the consensual acts of sodomy
were treated any differently than the acts involving sexual
intercourse. Neither the military judge (during the Care
inquiry) nor trial counsel (in argument) appear to consider them
as being any more egregious than the appellant’s other sexual
misconduct.
     Accordingly, despite making numerous assumptions in the
appellant’s favor, we find this assignment of error to be
without merit.
              Unreasonable Multiplication of Charges
     We review a military judge’s decision to deny relief for an
unreasonable multiplication of charges using an abuse of
discretion standard. United States v. Campbell, 71 M.J. 19, 22
(C.A.A.F. 2012). A military judge abuses his discretion “when
he is incorrect about the applicable law, or when he improperly
applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004). The framework for analyzing unreasonable
multiplication of charges was explained in United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001): (1) did the accused
object at trial that there was an unreasonable multiplication of
charges; (2) is each charge and specification aimed at
distinctly separate criminal acts; (3) does the number of

                                7
charges and specifications misrepresent or exaggerate the
appellant’s criminality; (4) does the number of charges and
specifications unreasonably increase the appellant’s punitive
exposure; (5) is there any evidence of prosecutorial
overreaching or abuse in the drafting of the charges?
     At trial, TDC asked the military judge to merge several of
the charges for sentencing purposes, claiming the charging
scheme represented an unreasonable multiplication of charges.
Specifically, TDC requested that the sodomy, adultery and orders
violation charges related to Ms. MLH and Ms. SMH, as well as the
adultery and orders violations charges concerning Ms. LJY, be
considered for sentencing as only involving one charge per
woman. The military judge merged the sodomy and adultery
charges regarding Ms. MLH, but denied the remainder of TDC’s
request.
     Noting that the appellant met the first part of the Quiroz
test by objecting at trial, the military judge addressed each of
the remaining Quiroz factors on the record.
     a. Ms. MLH. The acts of adultery and sodomy with Ms.
MLH were charged as having occurred on divers occasions during
the same period and at the same location. As there was no
evidence presented that the adultery and sodomy were not part of
the same encounter, the military judge merged the adultery and
sodomy specifications involving Ms. MLH, finding that the
charging scheme both exaggerated the appellant’s criminality and
unfairly increased his criminal exposure. He did not merge
these two specifications with the specification alleging the
appellant wrongfully sought or engaged in an unprofessional
relationship with Ms. MLH, finding that the violation of the
lawful general order also “includes all the text messages [and]
inappropriate pictures” and, therefore, was aimed at different
criminal acts. Record, at 299.

        b. Ms. SMH. The appellant was charged with and pleaded
guilty to committing adultery and sodomy with Ms. SMH during two
separate time periods. Additionally, the Stipulation of Fact 7
indicated these acts occurred on two separate occasions.
Accordingly, the military judge did not merge these two
offenses. He also declined to merge either the adultery or
sodomy charge with the charge of violating a lawful general
order, stating the Article 92, UCMJ, offense included different
conduct, namely, “text messages” and “[p]ictures of naked
poolees.” Id. at 300. He further found that the charges

7
    Prosection Exhibit 1.
                                8
concerning Ms. SMH did not exaggerate the appellant’s
criminality or unfairly increase his criminal exposure.
        c. Ms. LJY. The military judge declined to merge the
adultery and orders violation charges, stating the latter
involved more than just the acts of adultery with Ms. LJY.
Accordingly, he found that the charges were aimed at distinctly
separate acts, and did not exaggerate the appellant’s
criminality or unfairly increase his criminal exposure.
     The military judge concluded by finding no evidence of
prosecutorial overreach or abuse of discretion in the drafting
of the charges.
     We find the military judge’s findings wholly supported by
the record. We further conclude that he correctly applied the
applicable law, and was correct in finding the charging scheme
did not present an unreasonable multiplication of charges.
Following the above analysis, we find that the military judge
did not abuse his discretion by declining, in part, TDC’s
request.
                    Sentence Appropriateness
     The appellant argues that his sentence to 60 months’
confinement, reduction to pay grade E-1, and a dishonorable
discharge was inappropriately severe. We disagree. In
accordance with Article 66(c), UCMJ, a Court of Criminal Appeals
“may affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as it finds correct in law
and fact and determines, on the basis of the entire record,
should be approved.” Sentence appropriateness involves the
judicial function of assuring that justice is done and that the
accused gets the punishment he deserves. United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and
character of the offender.’” United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)). While this court has a great
deal of discretion in determining whether a particular sentence
is appropriate, we are not authorized to engage in exercises of
clemency. Healy, 26 M.J. 396.
     After review of the entire record, we find that the
sentence is appropriate for this offender and his offenses. The
appellant was a senior staff noncommissioned officer assigned to
recruiting duty. As such, he represented the Marine Corps and
was often the first, and many times the only, contact potential
                                9
recruits, their families and school officials had with this
honorable institution. He was entrusted with great
responsibility. He responded by repeatedly violating this
trust, using his official position to seek sexual relationships
with recruits, potential recruits, and their mothers.
     During his unsworn statement, the appellant expressed no
remorse for the lasting damage he inflicted on several families,
including his own. His many statements regarding incest and
child sexual abuse led to an investigation of unfounded
allegations against his ex-wife. His text conversations with
Ms. SMH greatly harmed her relationship with her family.
Finally, he did not inform his current wife of the MPO or the
on-going investigation until shortly after their wedding.
     The appellant’s actions failed to comply with the
expectations of a senior enlisted leader, and his behavior
clearly reflected discredit upon the Service. The fact his acts
of sexual misconduct may have all been consensual does not
affect our conclusion that the adjudged and approved sentence in
no way exceeds what the appellant deserved.
     The adjudged sentence is also within the range of sentences
the appellant bargained for under the terms of his pretrial
agreement. He offers nothing to explain how a sentence falling
within a limited range he knowingly and voluntarily negotiated
is now, once imposed, inappropriately severe. To grant sentence
relief at this point would be to engage in clemency, a
prerogative reserved for, and in this case unexercised by, the
convening authority.
                           Conclusion

     The findings and sentence as approved by the CA are
affirmed.
     Senior Judge MCFARLANE and Judge BRUBAKER concur.
                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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