United States v. Sergeant CHRISTOPHER R. WEBB ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant CHRISTOPHER R. WEBB
United States Army, Appellant
ARMY 20130466
Headquarters, 2d Infantry Division
Wendy P. Daknis, Military Judge
Colonel Paula I. Schasberger, Staff Judge Advocate
For Appellant: Major Vincent T. Shuler, JA; Captain Patrick A. Crocker, JA.
For Appellee: Lieutenant Colonel James L. Varley, JA.
20 December 2013
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted manufacture of AM-2201 (a
Schedule I controlled substance) with the intent to distribute and one specification
of possession of AM- 2201 with the intent to distribute in violation of Articles 80
and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 912a (2006)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to a
bad-conduct discharge, confinement for twelve months, and reduction to the grade of
E-1.
This case is before the court for review under Article 66, UCMJ. Appellant
submits the case on its merits and raises a number of matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We agree with one of those
matters.
According to both the plea inquiry and the stipulation of fact, a ppellant never
attempted to manufacture the substance (AM-2201) charged in this case. He
WEBB — ARMY 20130466
purchased the AM-2201 over the internet and received it by mail. Appellant
intended to use the AM-2201 to produce “spice” by combining it with acetone and
spraying it on marshmallow leaf, and then distribute the “spice” for profit. He did
not attempt to manufacture AM-2201 in any sense, and neither the providence
inquiry nor the stipulation of fact suggests otherwise. His plea to that offense must
therefore be rejected. See generally United States v. Inabinette, 66 M.J. 320(C.A.A.F. 2008).
Despite the fact that the maximum punishment is now halved, we are
confident that we can properly reassess the sentence. The evidence of his purchase
and intended use of AM-2201 to manufacture spice was part and parcel of the
alleged possession with intent to distribute charge and would therefore be considered
by the sentencing authority to determine appellant’s sentence even without the
Article 80, UCMJ, charge. Though manufacture of illegal drugs addresses a separate
evil of at least equal concern to that of possession of those drugs, it is the intent to
distribute that offers the gravamen of aggravation under the circumstances.
Considering the totality of circumstances in this case, we ar e confident that
appellant would have received a sentence at least as severe as a bad -conduct
discharge, confinement for eight months, and reduction to the grade of E-1. See
United States v. Winckelmann, M.J. , slip. op. at 12-13 (C.A.A.F. 18 Dec.
2013).
After considering the entire record, including those matters personally raised
by appellant pursuant to Grostefon, Charge I and its specification are set aside and
dismissed. The remaining findings of guilty are affirmed. The court affirms only so
much of the sentence as provides for a bad-conduct discharge, confinement for eight
months, and reduction to the grade of E-1. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by the decision, are ordered restored. See UCMJ arts. 58a(b),
58b(c), and 75(a).
Senior Judge YOB and Judge LIND concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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