              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39120
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                       Carl J. LAMBERTSON
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 11 January 2018
                          ________________________

Military Judge: Joshua E. Kastenberg.
Approved sentence: Dishonorable discharge, confinement for 40 months,
reduction to E-1, and a reprimand. Sentence adjudged 26 April 2016 by
GCM convened at Dyess Air Force Base, Texas.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
Ellen Payne, USAF; Major Meredith L. Steer, USAF; Captain Anne M.
Delmare, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, MINK, and DENNIS, Appellate Military Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Chief Judge:
   A general court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas pursuant to a pretrial agreement
                    United States v. Lambertson, No. ACM 39120


(PTA), of one specification each of wrongfully possessing, viewing, and receiv-
ing child pornography in violation of Article 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 934. The court sentenced Appellant to a dishonorable
discharge, confinement for 40 months, total forfeiture of pay and allowances,
reduction to E-1, and a reprimand. The convening authority disapproved the
adjudged forfeitures, waived the mandatory forfeitures for six months, and ap-
proved the remainder of the adjudged sentence.
   Appellant asserts his sentence is inappropriately severe. 1 We find no prej-
udicial error and affirm.

                                   I. BACKGROUND
    Appellant’s misconduct came to light in early 2015 when his email address
surfaced in a Colorado Springs Internet Crimes Against Children (ICAC) in-
vestigation. Eventually, the case was turned over to the Dyess Air Force Office
of Special Investigations (AFOSI), who coordinated with the Taylor County
Sherriff’s Office in Abilene, Texas. A search warrant was executed at Appel-
lant’s off-base home on 30 July 2015 and a number of electronic devices were
seized. The Defense Computer Forensic Laboratory found over 4,100 images of
child pornography and other uncharged images (depicting glamor, erotic, nude,
or other images of young individuals, a number of whom appear to be under
the age of 18) on two laptops. Appellant was charged with possessing, viewing,
and receiving 591 images of child pornography, 231 of which depicted known
victims identified by the National Center for Missing and Exploited Children.
    Appellant admitted to possessing and viewing the 591 images over approx-
imately a three year period beginning 12 January 2012. He admitted to receiv-
ing over 295 images over a one year period from 27 January 2011 through 11
January 2012. The military judge sua sponte conducted an unreasonable mul-
tiplication of charges analysis pursuant to United States v. Quiroz, 55 M.J. 334,
338–39 (C.A.A.F. 2001), and found each specification was aimed at distinctly
separate criminal acts, did not represent or exaggerate criminality, or unrea-
sonably increase the punitive exposure. Both parties agreed. The charged im-
ages depict minors involved in bestiality, minors engaged in sex acts with other
minors, minors engaged in sex acts with adults, minors masturbating or being
penetrated digitally or by a foreign object, and minors posing nude. In various
images the children were bound with tape or rope. The ages of the children
appear to range from infancy to early pre-pubescence.




1   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                United States v. Lambertson, No. ACM 39120


    Appellant faced a maximum punishment of, inter alia, confinement for 40
years. Trial counsel requested confinement for seven years, a dishonorable dis-
charge, reduction to E-1, and total forfeiture of all pay and allowances. Trial
defense counsel made no specific sentence recommendation but asked that con-
finement not exceed 24 months. The PTA capped confinement at five years.

                               II. DISCUSSION
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). Pursuant to Article 66(c), UCMJ, this court should only
affirm sentences which it finds are correct in law and fact, and which 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. Clem-
ency involves bestowing mercy -- treating an accused with less rigor than he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). Sentence
appropriateness is assessed by “considering the particular appellant, the na-
ture and seriousness of the offenses, the appellant’s record of service, and all
matters contained in the record of trial.” United States v. Bare, 63 M.J. 707,
714 (A.F. Ct. Crim. App. 2006) (citations omitted).
    Appellant argues that his sentence is unduly severe and should be reduced
based on his difficult upbringing, including being a victim of similar abuse as
a child. He asserts this serves as both mitigation as well as validation of his
willingness and ability to be rehabilitated. Specifically, he requests reduction
of his length of confinement or, alternatively, only a reduction to the grade of
E-4 be affirmed. This same evidence was available to the military judge and
the convening authority when they imposed and approved the sentence of
which Appellant now complains.
    Appellant’s sentence, which included confinement less than one-tenth of
the maximum authorized and two-thirds of his negotiated PTA cap, is correct
in law and fact. Appellant has provided no justification to support a reduction
of any aspect of his sentence. Having given individualized consideration to the
nature and seriousness of these crimes, Appellant’s record of service, and all
other matters contained in the record of trial, we conclude the sentence is not
inappropriately severe based on the facts and circumstances of this particular
case.




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                  United States v. Lambertson, No. ACM 39120


                                  III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 2 Accordingly, the find-
ings and the sentence are AFFIRMED.


                   FOR THE COURT


                   KATHLEEN M. POTTER
                   Acting Clerk of the Court




2 On appeal, Appellant’s counsel asserts that one of the images Appellant pleaded
guilty to does not depict sexually explicit conduct. We agree, but note that paragraphs
six and ten of the Stipulation of Fact indicate that a total of 71 images and four videos
were attached to seven emails found on Appellant’s Yahoo account and the Govern-
ment included 30 images and two videos from those attachments as images charged as
having been viewed but not possessed. Neither Appellant nor his counsel at trial dis-
puted this evidence. Even if one less video is considered from the totality of the child
pornography Appellant admitted to having viewed, it does not change the providency
of his plea or the appropriateness of his sentence.


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