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

                                  No. ACM 39113
                            ________________________

                               UNITED STATES
                                   Appellee
                                          v.
                         Ashton R. ROSALES
            Airman First Class (E-3), U.S. Air Force, Appellant
                             ________________________

         Appeal from the United States Air Force Trial Judiciary
                            Decided 30 January 2018
                             ________________________

Military Judge: Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 4 years and
6 months, forfeiture of all pay and allowances, and reduction to E-1.
Sentence adjudged 9 May 2016 by GCM convened at Robins Air Force
Base, Georgia.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen
Payne, USAF; Gerald R. Bruce, Esquire; James E. Beckwith, Legal Ex-
tern. 1
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judge
JOHNSON 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    This is an unpublished opinion and, as such, does not serve as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.
                             ________________________



1 In accordance with Rule 6.1 of the court’s Rules of Practice and Procedure, Mr. Beck-
with was at all times supervised by counsel for the Government during his participa-
tion in this case.
                     United States v. Rosales, No. ACM 39113


MINK, Judge:
    A military judge sitting as a general court-martial found Appellant guilty,
consistent with his pleas, of violating a lawful general regulation by possessing
pornography in a deployed location and wrongfully possessing child pornogra-
phy in violation of Articles 92 and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 934. The adjudged and approved sentence consisted
of a dishonorable discharge, four years and six months of confinement, forfei-
ture of all pay and allowances, and reduction to E-1.
     On appeal, Appellant raises two assignments of error: (1) whether his sen-
tence is unduly severe and (2) whether an eight-day violation of the 30-day
post-trial standard for forwarding the record of trial for appellate review war-
rants relief pursuant to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). 2
Finding no error materially prejudicial to a substantial right of Appellant, we
affirm the findings and sentence.

                                  I. BACKGROUND
    While Appellant was deployed to Al Udeid Air Base, Qatar in January
2015, he possessed seven images of child pornography on his cellular phone.
Prior to his deployment, Appellant received some of the images from another
individual and obtained other images by actively searching the Internet for
child pornography. Appellant saved the images on his phone and then took the
phone with him to the deployed location.
    Appellant’s trial convened and was completed on 9 May 2016. The staff
judge advocate’s recommendation (SJAR) was signed on 3 June 2016 and
served on Appellant on 8 June 2016. On 24 June 2016, trial defense counsel
submitted Appellant’s clemency matters. The addendum to the SJAR was
signed on 1 July 2016, as was the convening authority’s action. Appellant’s
record of trial was docketed with this court on 8 August 2016, 38 days after the
convening authority’s action.

                                   II. DISCUSSION
A. Sentence Appropriateness
   Appellant asserts that the portion of his sentence of confinement for four
years and six months was unduly severe, relying exclusively on the fact that
the Government counsel requested the military judge sentence Appellant to


2Both Appellant and the Government assert there was a nine-day violation of the 30-
day post-trial standard for forwarding the record of trial for appellate review. In fact,
the 30-day post-trial standard was exceeded by only eight days.



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                   United States v. Rosales, No. ACM 39113


only three years of confinement in addition to the other requested components
of Appellant’s sentence. Appellant asks this court to reduce his confinement
sentence to three years. We decline to do so.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty
and the sentence or such part or amount of the sentence, as [we find] correct
in law and fact and determine, on the basis of the entire record, should be ap-
proved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appro-
priateness by considering the particular appellant, the nature and seriousness
of the offense[s], the appellant’s record of service, and all matters contained in
the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (citing United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009)). Though we have great discretion to determine whether a sentence is
appropriate, we have no power to “grant mercy.” United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010).
   The sentence recommendation made by Government counsel during the
sentencing argument is just that—a recommendation. See Rule for Courts-
Martial (R.C.M.) 1001(g). Such a recommendation is neither binding on the
sentencing authority nor on this court when reviewing the appropriateness of
Appellant’s sentence.
    Appellant was convicted of possessing multiple images of child pornogra-
phy that depicted pre-teen or early teenage girls engaging in sexually explicit
conduct. Although Appellant first received child pornography from another in-
dividual, he then conducted active searches for it. He learned and used sophis-
ticated search terms he knew would yield actual child pornography, including
depictions of children being sexually assaulted. Appellant saved the images on
his phone using an application that would avoid detection. He then took the
phone to a deployed location where pornography of any kind was prohibited by
a lawful General Order. Appellant acknowledged he was aware of the prohibi-
tion prior to his deployment.
   Appellant was subject to a maximum sentence of 12 years of confinement,
reduction to E-1, forfeiture of all pay and allowances, and a dishonorable dis-
charge. His approved sentence of a dishonorable discharge, four years and six
months of confinement, forfeiture of all pay and allowances, and reduction to
E-1 was significantly less than the maximum that could have been imposed.
    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial. The sentence was appropriate based on Appel-
lant’s serious misconduct and the facts and circumstances of this particular
case and was not inappropriately severe.


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                   United States v. Rosales, No. ACM 39113


B. Post-Trial Delay
    The 38 days that elapsed between the convening authority’s action and
the docketing of Appellant’s record of trial with this court exceeded the
standard established in United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006) by eight days. Nevertheless, we do not find that sentence
relief is warranted.
    “[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” Id. at 135. Accordingly, we re-
view de novo whether Appellant has been denied his due process right to
a speedy post-trial review and appeal. Id. In Moreno, the United States
Court of Appeals for the Armed Forces established a presumption of un-
reasonable post-trial delay that requires a due process review when dock-
eting with the service court does not occur within 30 days of the convening
authority’s action. Id. at 142.
    If there is a Moreno-based presumption of unreasonable delay or an
otherwise facially-unreasonable delay, we examine the claim under the
four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s asser-
tion of the right to timely review and appeal; and (4) prejudice.” Moreno,
63 M.J. at 135. Moreno identified three types of prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of ability to present a defense at a rehearing.
Id. at 138–39. “We analyze each factor and make a determination as to
whether that factor favors the Government or [Appellant].” Id. at 136.
Then, we balance our analysis of the factors to determine whether a due
process violation occurred. Id.; see also Barker, 407 U.S. at 533 (“[C]ourts
must still engage in a difficult and sensitive balancing process.”). “No sin-
gle factor is required for finding a due process violation and the absence
of a given factor will not prevent such a finding.” Moreno, 63 M.J. at 136.
However, where an appellant has not shown prejudice from the delay,
there is no due process violation unless the delay is so egregious as to “ad-
versely 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).
    Under Moreno, the period of 38 days between action by the convening
authority and docketing with this court is presumptively unreasonable,
exceeding the standard by eight days and triggering a full due process
review. Moreno, 63 M.J. at 142. The delay in this case resulted from con-
fusion over how to transmit the portion of the record that contained con-
traband materials and the efforts to ensure that those materials were



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                     United States v. Rosales, No. ACM 39113


properly included in the record of trial. Appellant does not claim he suf-
fered any prejudice from the delay and we find none. Despite the relatively
small size of Appellant’s record of trial, we are not persuaded that the
eight-day delay and the reasons therefor are sufficiently egregious to bring
discredit upon the fairness or integrity of the military justice system. Ac-
cordingly, we find no due process violation.

   Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, relief pursuant to United
States v. Tardif, 57 M.J. at 220, is appropriate. We are guided by factors
enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with no single factor being dis-
positive. 3 Having considered these factors and the particular circum-
stances of Appellant’s case, including the reasons for delay in docketing
the case with this court, we do not find the exercise of our Article 66(c)
authority to modify the otherwise appropriate sentence warranted.


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


                   FOR THE COURT


                   KATHLEEN M. POTTER
                   Acting Clerk of the Court




3 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence, and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the pas-
sage of time, this court can provide meaningful relief in this particular situation. Gay,
74 M.J. at 744.



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