United States v. Private First Class SLADE E. MCKIM-BURWELL ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class SLADE E. MCKIM-BURWELL
United States Army, Appellant
ARMY 20120719
Headquarters, Fort Riley
Jeffery R. Nance, Military Judge
Lieutenant Colonel John M. Hamner, Staff Judge Advocate
For Appellant: Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA .
For Appellee: Major Robert A. Rodriguez, JA.
20 February 2014
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of knowingly and wrongfully possessing
some visual depictions involving the use of minors engaging in sexually explicit
conduct, and one specification of knowingly and wrongfully possessing some visual
depictions of minors as sexual objects or in a sexually suggestive way. Both
specifications were in violation of Article 134, Uniform Code of Military Justice
(Clauses 1 and 2). 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for twenty months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. Pursuant to a
pretrial agreement, the convening authority approved only seven months
confinement and the remainder of the sentence.
On 7 January 2013, this court affirmed the findings of guilty and the sentence.
United States v. McKim-Burwell, ARMY 20120719 (Army Ct. Crim. App. 7 Jan.
2013). On 7 February 2014, the Court of Appeals for the Armed Forces reversed o ur
decision as to Specification 2 of The Charge, set aside the finding of guilty of
MCKIM-BURWELL – ARMY 20120719
Specification 2 of The Charge, affirmed our decision as to the remaining findings,
and returned the case to The Judge Advocate General of the Army for remand to this
court to reassess the sentence. United States v. McKim-Burwell, __ M.J. ___
(C.A.A.F. February 7, 2014) (summ. disp.).
Upon remand from our higher court, we are confident , considering the
remaining findings of guilt, that we can reassess appellant’s sentence at our level.
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales,
22 M.J. 305, 307 n.3 (C.M.A. 1986). The appellant remains convicted of a Clause 1
and 2 Article 134, UCMJ offense, knowingly and wrongfully possessing some visual
depictions involving the use of minors engaging in sexually explicit conduct (child
pornography). * Appellant’s approved sentence to a reduction to E-1, total forfeiture
of all pay and allowances, seven months confinement, and a bad-conduct discharge
is substantially below the maximum punishment. Appellant elected trial by judge
alone and we “are more likely to be certain of what a military judge would have
done as opposed to members.” Winckelmann, 73 M.J. at 16. Moreover, the
remaining specification fully captures the gravamen of appellant’s criminal conduct.
Finally, we have extensive experience with the remaining conviction, and we are
confident that we can reliably assess what sentence a military judge would have
imposed on the remaining findings of guilt. Id.
Consequently, we are confident the military judge would have adjudged a
sentence no less severe than that approved by the convening authority in this case.
Additionally, we find that the sentence approved by the convening authority is
appropriate. See UCMJ art. 66.
CONCLUSION
The remaining findings of guilt have been previously affirmed by both this
court and the Court of Appeals for the Armed Forces. Reassessing the sentence on
the basis of the error noted, the entire record, and in accordance with the principles
of Wincklemann, the sentence, as approved by the convening authority, is
AFFIRMED.
FOR
FORTHETHE
COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk
Clerkof Court
of Court
*
We note that this offense alone carries a maximum punishment of 10 years
confinement.
2