United States v. Staff Sergeant CHRISTOPHER A. BARBERI ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, YOB, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant CHRISTOPHER A. BARBERI
United States Army, Appellant
ARMY 20080636
Headquarters, V Corps
Timothy Grammel and Gregg A. Marchessault, Military Judges
Colonel Flora D. Darpino, Staff Judge Advocate
For Appellant: Captain Michael E. Korte, JA; William E. Cassara, Esquire (on
brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA;
Major Ellen S. Jennings, JA; Captain Stephen E. Latino, JA (on brief).
12 July 2012
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SUMMARY DISPOSITION UPON REMAND
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KERN, Senior Judge:
An officer and enlisted panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of sodomy of a child who had
attained the age of twelve, but was under the age of sixteen, and one specification of
possession of child pornography in violation of Articles 125 and 134, Uniform Code
of Military Justice 10 U.S.C. §§ 925 and 934 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge, confinement for two years, and
reduction to the grade of E1. The convening authority approved confinement for one
year and 361 days, but otherwise approved the remainder of the adjudged sentence.
On 25 February 2011, this court affirmed the findings of guilty and the
sentence. United States v. Barberi, ARMY 20080636, 2011 WL 748378 (Army Ct.
Crim. App. 22 Feb. 2011) (sum. disp.) On 15 May 2012, our superior court reversed
our decision as to Charge II and its Specification and the sentence, but affirmed the
BARBERI—ARMY 20080636
remainder of the decision. The record of trial was returned to The Judge Advocate
General of the Army for remand to this court to either dismiss Charge II and its
Specification and reassess the sentence or order a rehearing. United States v.
Barberi, 71 M.J. 127 (C.A.A.F. 2012).
LAW AND DISCUSSION
In light of our superior court’s opinion, we dismiss Charge II and its
Specification and reassess the sentence. The findings of guilty of the Specification
of Charge II and Charge II are set aside and dismissed. The remaining findings of
guilty are affirmed. Although clearly not the gravamen offense and not specifically
highlighted in the government’s sentencing argument, Charge II did constitute one-
third of the potential maximum sentence to confinement faced by appellant.
Therefore, we find that the dismissal of Charge II and its Specification does change
the sentencing landscape. Reassessing the sentence on the basis of the error noted,
the entire record, and applying the principles of United States v. Sales, 22 M.J. 305(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include
the factors identified by Judge Baker in his concurring opinion in Moffeit, we affirm
only so much of the sentence as provides for a bad-conduct discharge, confinement
for one year and 331 days, and reduction to the grade of E1. We conclude that such
a sentence is at least that which would have been imposed by a court-martial for the
remaining findings of guilt. All rights, privileges, and property of which appellant
was deprived by virtue of that portion of his sentence being set aside by this
decision are hereby ordered restored.
Judge YOB concurs.
ALDYKIEWICZ, Judge, concurring in part and dissenting in part:
I concur with the decision to dismiss Charge II and its Specification. While I
concur with my brethren that this court can confidently reassess appellant’s sentence
in light of the modified findings, thus obviating the need to return the case to the
convening authority for a sentence rehearing, I disagree with their thirty-day
reduction in appellant’s sentence. In arriving at my decision I have considered the
principles articulated in United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and
United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006), to include those factors
noted in Judge Baker’s concurring opinion, Moffeit, 63 M.J. at 43 (Baker, J.,
concurring).
Appellant sodomized his step-daughter repeatedly over a four-year period,
beginning when she was eleven and ending on her fifteenth birthday. When asked
by his step-daughter whether what he was doing was normal, appellant responded
that “a lot of little girls do that [i.e., perform oral sodomy] for their daddies.”
Worse yet, appellant kept his step-daughter from reporting his criminal activity by
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BARBERI—ARMY 20080636
telling her that her mother, sick with cancer at the time, would “die” if she told
anyone because the mother would no longer have access to the medicine she needed
if people found out what appellant was doing. The gravamen of this case and the
aggravating circumstances supporting appellant’s sentence surround appellant’s four
years of repeated, ongoing sexual abuse of his minor step-daughter, a fact
highlighted by the government’s sentencing argument, an argument that never
mentioned possession of child pornography, the images at issue in Charge II and its
Specification, or Charge II and its Specification.
While the dismissal of Charge II and its Specification reduced appellant’s
maximum confinement exposure from thirty to twenty years, I disagree with the
majority that the sentencing landscape has significantly changed warranting any
reduction in sentence. I am convinced, beyond any doubt whatsoever, that
appellant’s sentence would have been as adjudged by the court-martial without
Charge II and its Specification and therefore would affirm the sentence as adjudged
by the court-martial and approved by the convening authority.
For these reasons, I dissent.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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