          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Senior Airman LUIS A. SALGUERO
                                     United States Air Force

                                               ACM 38767

                                             6 January 2016

         Sentence adjudged 18 December 2014 by GCM convened at Joint Base
         Pearl Harbor-Hickam, Hawaii. Military Judge: Matthew P. Stoffel (sitting
         alone).

         Approved Sentence: Dishonorable discharge, confinement for 2 years,
         reduction to E-1, and forfeiture of all pay and allowances.

         Appellate Counsel for Appellant: Major Isaac C. Kennen.

         Appellate Counsel for the United States: Captain Rebecca A. Magnone and
         Gerald R. Bruce, Esquire.

                                                  Before

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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



BROWN, Judge:

       A general court-martial, composed of a military judge alone, convicted Appellant,
consistent with his pleas, of desertion terminated by apprehension, possessing digital
videos of child pornography, and possessing and viewing 41 images of child
pornography, in violation of Articles 85 and 134, UCMJ, 10 U.S.C. §§ 885, 934.1

       The military judge sentenced Appellant to a dishonorable discharge, confinement
for 3 years, reduction to E-1, and forfeiture of all pay and allowances. In accordance
with a pretrial agreement, the convening authority approved the dishonorable discharge,
confinement for 2 years, reduction to E-1, and forfeiture of all pay and allowances.

       Although not raised by Appellant, we address whether an accused’s plea to
possessing and viewing child pornography under Article 134, UCMJ, is provident where
his generalized explanations as to why he believed he was guilty of the offense did not
extend to two images listed in the specification.2 We find the plea as to these two images
improvident. The plea is provident as to the remaining images and videos. We,
therefore, modify the findings by exception and affirm the modified findings and the
sentence.

                                                Background

       Appellant was a first-term Airman assigned to Joint Base Pearl Harbor-Hickam,
Hawaii. While Appellant was on leave in Utah in February 2013, local civilian police
arrested him for enticing a minor over the Internet and having sexual relations with a
child under the age of 16. These allegations were investigated by local Utah law
enforcement.

       During the course of the Utah investigation, Appellant admitted to viewing child
pornography on his personal computer in Hawaii. In March 2013, investigators with the
Air Force Office of Special Investigations (AFOSI) searched Appellant’s Hawaii
residence and seized his laptop computer and external hard drive. Through forensic
analysis, investigators ultimately identified child pornography images and digital videos
on these seized items. These recovered images and video files were the basis for the
child pornography offenses.

        Prosecutors in Utah intended to prosecute Appellant for the enticement offenses
that occurred there, while the Air Force intended to prosecute Appellant for the child
pornography offenses that occurred in Hawaii. Before any of these offenses could go to
trial, however, Appellant fled to Estonia in May 2013. In December 2013, Appellant was
apprehended at a New York airport while attempting to re-enter the country. After being
returned to Utah and pleading guilty to multiple offenses there, Appellant was
incarcerated in a state facility. He was released from confinement in Utah in December


1
  Appellant pleaded not guilty to possessing and viewing four other images of child pornography and the military
judge found Appellant not guilty as to those images.
2
  We specified this issue to appellate counsel and allowed them an opportunity to provide briefs.


                                                       2                                            ACM 38767
2014. Military investigators immediately apprehended him and returned him to Air
Force custody. His absence from the military was the basis for the desertion charge.

                                              Providency of Plea

       Although we review questions of law from a guilty plea de novo, we review a
military judge’s acceptance of an accused’s guilty plea for an abuse of discretion.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In order to prevail on
appeal, the appellant has the burden to demonstrate “a substantial basis in law and fact for
questioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)) (internal quotation marks omitted). The “mere possibility” of a conflict
between the accused’s plea and statements or other evidence in the record is not a
sufficient basis to overturn the trial results. United States v. Garcia, 44 M.J. 496, 498
(C.A.A.F. 1996) (quoting Prater, 32 M.J. at 436) (internal quotation marks omitted).
“The providence of a plea is based not only on the accused’s understanding and recitation
of the factual history of the crime, but also on an understanding of how the law relates to
those facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United
States v. Care, 40 C.M.R. 247, 250–51 (C.M.A. 1969)). We “examine the totality of the
circumstances of the providence inquiry, including the stipulation of fact, as well as the
relationship between the accused’s responses to leading questions and the full range of
the accused’s responses during the plea inquiry.” United States v. Nance, 67 M.J. 362,
366 (C.A.A.F. 2009).3

        When a charge may implicate both criminal and constitutionally protected
conduct, the distinction about what is prohibited is a matter of critical significance and
the colloquy between the accused and the military judge “must contain an appropriate
discussion and acknowledgment on the part of the accused of the critical distinction
between permissible and prohibited behavior.” United States v. Hartman, 69 M.J. 467,
468 (C.A.A.F. 2011). This requirement applies to cases where an accused is charged
with possessing images of minors that may implicate the protections of the First
Amendment.4 See United States v. Moon, 73 M.J. 382, 387 (C.A.A.F. 2014); United
States v. Anderson, Army 20080669 (Army Ct. Crim. App. 10 September 2010) (unpub.
op.) (finding a plea to possession of child pornography improvident where there was not
a sufficient colloquy between the military judge and the accused about whether the
images were known minors engaged in sexually explicit conduct, or why the images met
the definition of “sexually explicit conduct”).

      Appellant pleaded guilty to a specification that stated he knowingly and
wrongfully possessed child pornography, and that listed the file names of the 4 videos

3
  Although the Government invites this court to analyze this issue as one of legal and factual sufficiency, we decline
to do so. This was not a litigated case. This was a guilty plea. In a guilty plea context, the issue is not legal or
factual sufficiency, but whether the plea is provident. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).
4
  U.S. CONST. amend I.


                                                          3                                              ACM 38767
and 41 images that constituted this offense. Appellant also pleaded guilty to a
specification that stated he knowingly and wrongfully viewed child pornography, and that
listed the same 41 images as the possession specification, but omitted the four digital
videos. Each specification included the two files at issue here.

       During the providence inquiry, the military judge advised Appellant that “child
pornography” is either a “visual depiction of an actual minor engaging in sexually
explicit conduct” or “an obscene visual depiction of . . . what appears to be a minor
engaging in sexually explicit conduct.” The military judge further advised Appellant that
“sexually explicit conduct” means actual or simulated “sexual intercourse or sodomy,
including genital-to-genital, oral-to-genital, anal-to-genital, or oral-to-anal, whether
between persons of the same or opposite sex; bestiality; masturbation; sadistic or
masochistic abuse; or lascivious exhibition of the genital or pubic area of any person.”

       The stipulation of fact described each image and digital video that Appellant
admitted, through his guilty plea, was a minor engaged in sexually explicit conduct. All
45 items were included on a DVD attached to the stipulation of fact. As to the two
images in the specified issue, the stipulation of fact described the first as “one minor
female wearing no clothes with semen on her chest and stomach,” and the second as “a
topless minor female with semen on her chest.” Appellant agreed that the matters
contained in the stipulation were true and correct to the best of his knowledge and belief.
The stipulation of fact did not further explain how these two images constituted “sexually
explicit conduct” as defined by the military judge.

        At trial, Appellant told the military judge he had not recently seen the images
referenced in the specifications.5 Appellant explained his attorney had reviewed each
file, and, after consulting with his attorney, he was aware of the nature and contents of
the files. Rather than describing any particular image, he explained generally that each
file depicted one or more minors engaging in some form of sexually explicit conduct. He
admitted all of the images and videos were obscene and that he was confident each
contained visual depictions of an actual child under the age of 18.

        The military judge later asked Appellant:

                 MJ: Did each of these images contain at least one minor, who
                 is engaged in sexually explicit conduct?

                 ACC: Yes, sir.


5
  Although it was not clear from the record exactly when Appellant last viewed the images, presumably it was prior
to them being seized by investigators in March 2013. Appellant fled the military in May 2013 and was returned to
military custody in December 2014 (the same month as his trial). Although there is no requirement that an accused
personally review images of child pornography prior to or while pleading guilty to an offense involving them, such a
lengthy gap can make it more difficult for an accused to provide a sufficient factual basis for a plea.


                                                         4                                             ACM 38767
              MJ: What type of sexually explicit conduct?

              [Pause as the accused conferred with defense counsel.]

              ACC: Some were depicted with . . . performing oral sex,
              some were depicted performing vaginal sex, some were
              depicted performing anal sex, and some depicted females
              showing . . . displaying their genitals.

              [Pause as the accused conferred with defense counsel.]

              And some depicted masturbation.

              MJ: Were there also images that contained lascivious
              exhibition of the genitals or pubic area?

              ACC: Yes, sir.

        The two images in the specified issue, however, do not depict “sexually explicit
conduct” under any of these definitions or theories as they do not depict a minor
engaging in sexual intercourse, sodomy, or masturbation. Similarly, the two images are
“waist up” pictures and thus do not constitute a lascivious exhibition of the child’s
“genitals or pubic area.” See United States v. Piolunek, 72 M.J. 830, 837 (A.F. Ct. Crim.
App. 2013) (finding that images of a nude minor did not contain an exhibition of the
child’s genitals or pubic area), aff’d, 74 M.J. 107 (C.A.A.F. 2015); United States v.
Wilkins, 71 M.J. 410, 413 n.1 (defining “genitalia” as “the organs of the reproductive
system”). Appellant did not specifically explain why he thought these images depicted
minors engaged in “sexually explicit conduct” as defined by the military judge. See
Hartman, 69 M.J. at 468–69. Although Appellant said he understood that each image
depicted some form of sexually explicit conduct and later answered “yes” to the military
judge when asked whether all of the images collectively depicted minors engaged in
sexually explicit conduct, these conclusory statements are not a sufficient factual basis to
sustain his plea as to these two images, when considered within the totality of the plea
inquiry. See United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004) (holding legal
conclusions alone are not sufficient to support a guilty plea.)

       Apparently recognizing this problem, the Government now asserts the two images
constitute child pornography because they depict the “sadistic abuse” of a minor child, a
category which is included in the broad definition of “sexually explicit conduct” found in
Article 134, UCMJ. Citing to various federal court decisions defining “sadism” in this
context, the Government argues these two images meet this definition because it is
humiliating and degrading for a child to pose in a provocative manner with semen on her
chest. Regardless of whether the two images could fall into this category of “sexually
explicit conduct,” this was not the rationale relied upon by Appellant and used by the


                                             5                                    ACM 38767
military judge to support the plea. The term “sadistic abuse” was only referenced when
the military judge was providing the general definition of “child pornography” and the
term was never defined for Appellant. At no point in the stipulation of fact or in the
colloquy with the military judge did Appellant articulate that he believed these two
images were sadistic. Given this, the guilty plea cannot be found provident under this
theory. See Medina, 66 M.J. at 16 (“[A]n accused has a right to know to what offense
and under what legal theory he or she is pleading guilty.”); United States v. Negron, 60
M.J. 136, 141 (C.A.A.F. 2004) (“An essential aspect of [accurately] informing [an
a]ppellant of the nature of the offense is a correct definition of legal concepts. The
judge’s failure to do so may render the plea improvident.”); cf. Moon, 73 M.J. at 387 n.3
(“It matters not whether . . . the photos . . . could have qualified as child pornography
under some other definition that was not provided . . . during the plea inquiry: no one
treated them as such at trial and thus the plea inquiry cannot be saved as provident to a
different offense on appeal.”).

        We find Appellant’s plea provident, however, as to the remaining images and
digital videos. Having reviewed these files, we find they depict minors engaged in the
specific categories of sexually explicit conduct that Appellant recited to the military
judge. His plea was, therefore, provident for these images and videos.6

                                                  Reassessment

       Having found error regarding Appellant’s guilty plea, we must consider whether
we can reassess the sentence or whether we must return the case for a rehearing on
sentence. 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 often 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.M.A. 1986).

       Here, we are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
Appellant’s case and in accordance with the principles articulated by our superior court in
Winckelmann and Sales. In evaluating the Winckelmann factors, we first note this error

6
  Appellant’s unsuccessful attempt to providently plead to the other two images of child pornography does not
evidence a fundamental misunderstanding of how the law related to the other images. Cf. United States v. Blouin,
74 M.J. 247, 251–52 (C.A.A.F. 2015) (holding a plea improvident where the military judge’s determination that
some images did not constitute child pornography after the appellant pled guilty raised a question as to sufficiency
of the plea where the record did not set forth a sufficient basis to demonstrate the accused understood the application
of the law to the images he was pleading guilty to possessing). The problem with the providency as to the two
images was not Appellant’s misunderstanding of the law or how it applied in his case, but merely a failure of the
military judge to adequately discuss with Appellant how two of the images depicted “sexually explicit conduct.”



                                                          6                                               ACM 38767
caused no change in the penalty landscape. See Winckelmann, 73 M.J. at 15–16. Second,
Appellant pled guilty in a judge alone court-martial. See id. at 16. Third, we find the
nature of the remaining offenses captures the gravamen of the original charges and the
significant circumstances surrounding Appellant’s conduct, including his possession and
viewing of the two images discussed above, remain admissible and relevant to the
remaining offenses. See id.; Rule for Courts-Martial 1001(b)(4); United States v. Nourse,
55 M.J. 229, 231–32 (C.A.A.F. 2001). Finally, based on our experience, we are familiar
with the remaining offenses so that we may reliably determine what sentence would have
been imposed at trial. See Winckelmann, 73 M.J. at 16.

       Having concluded we can reassess Appellant’s sentence, we affirm the sentence as
approved by the convening authority. Based on the totality of the circumstances in this
court-martial, we are satisfied that absent the error the military judge would have
adjudged no less than the approved sentence of a dishonorable discharge, confinement for
2 years, reduction to E-1, and forfeiture of all pay and allowances.

                                        Conclusion

       The finding of guilty as to Charge I and its Specification is affirmed. The findings
of guilty as to Charge II and its two specifications are affirmed, excepting the language
“256_e018f91ab2557efd.jpg;” and “256_74541f035ba36b4a.jpg.”

The findings, as modified, and the 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, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings, as modified, and the sentence, as reassessed, are AFFIRMED.




              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                             7                                    ACM 38767
