UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman RICHARD M. CHERUBINI, JR.
United States Air Force
ACM 38292
13 March 2014
Sentence adjudged 1 February 2013 by GCM convened at Joint Base
Lewis-McChord, Washington. Military Judge: Martin T. Mitchell (sitting
alone).
Approved Sentence: Dishonorable discharge, confinement for 36 months,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for the Appellant: Lieutenant Colonel Jane E. Boomer.
Appellate Counsel for the United States: Colonel Don M. Christensen;
Major Jason M. Kellhofer; and Gerald R. Bruce, Esquire.
Before
HELGET, WEBER, and PELOQUIN
Appellate Military Judges
This opinion is subject to editorial correction before final release.
PER CURIAM:
A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of three specifications of violating a lawful general regulation;
four specifications of wrongfully using controlled substances; five specifications of
wrongfully introducing controlled substances onto a military installation; two
specifications of wrongful manufacture of a controlled substance; and two specifications
of wrongfully soliciting Airmen to violate a lawful general regulation, in violation of
Articles 92, 112a, and 134, UCMJ,
10 U.S.C. §§ 892, 912a, 934.1 The specifications
involving violation of a lawful general regulation and solicitation to violate a lawful
1
The appellant’s guilty pleas contained several exceptions and substitutions.
general regulation were also drug-related, as they concerned violations or solicitations to
violate Air Force Instruction 44-121, Alcohol and Drug Abuse Prevention and Treatment
(ADAPT) Program, ¶ 3.2.3 (11 April 2011), through possession and solicited use of
intoxicating substances. The military judge sentenced the appellant to a dishonorable
discharge, confinement for 39 months, forfeiture of all pay and allowances, and reduction
to E-1. The convening authority approved only 36 months of confinement, in accordance
with a pretrial agreement, but approved the remainder of the sentence as adjudged.
On appeal, the appellant asks this Court to affirm only a bad-conduct discharge
and confinement for 2 years, asserting that his approved sentence is inappropriately
severe. He also alleges the military judge erred by not sua sponte merging two
specifications of violating a lawful general regulation and four specifications of drug
introduction as an unreasonable multiplication of charges.2 We find the sentence is
appropriate and the military judge committed no error in not merging the specifications at
issue. We affirm the approved findings and sentence.
Background
The appellant engaged in significant drug activity in the enlisted dormitories,
predominantly in April and May 2012. He brought a known drug dealer onto the Joint
Base Lewis-McChord, and into the dormitories, knowing the drug dealer had various
illegal substances and intended, in some instances, to distribute the substances; he
wrongfully possessed various synthetic hallucinogens; he manufactured controlled
substances by repackaging them into different forms; he wrongfully used several types of
contraband substances; and he solicited two other Airmen to use a synthetic hallucinogen.
The appellant provided a urine sample after one night on which much of the charged
activity occurred. Analysis of this sample confirmed the presence of amphetamine and
norketamine in his system. Around the time he committed his crimes, the appellant told
several Airmen that some of the substances he used could not be detected by the Air
Force’s urinalysis program. He also told a fellow Airman that if he were ever caught for
drug use, he would try to use “mental illness” as a defense. Several months later, while
court-martial charges were pending against him, the appellant told his dormitory
suitemate he wanted “to try some shrooms.” A subsequent search of his dormitory room
revealed two plastic bags of psilocybin mushrooms he had brought onto the installation.
Sentence Severity
The appellant asserts the number of specifications unnecessarily exaggerate his
criminality, as many of the charged actions took place on one night. He also avers he had
a history of mental health issues that impacted his decision to get involved with illegal
drug activity, and he pled guilty to the charges and specifications (with some exceptions
2
This issue is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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and substitutions), revealing a positive rehabilitative potential. He also cites four
previous courts-martial involving drug activity in which we upheld sentences less severe
than the appellant’s adjudged and approved sentence. Therefore, he argues that under
sentence appropriateness and sentence comparison principles, this Court should find his
sentence inappropriately severe.
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 approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Bare,
63 M.J. 707, 714
(A.F. Ct. Crim. App. 2006). See also United States v. Healy,
26 M.J. 394, 395-96
(C.M.A. 1988); United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982). Although we
are accorded great discretion in determining whether a particular sentence is appropriate,
we are not authorized to engage in exercises of clemency. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
In exercising sentence appropriateness review, “[t]he Courts of Criminal Appeals
are required to engage in sentence comparison only ‘in those rare instances in which
sentence appropriateness can be fairly determined only by reference to disparate
sentences adjudged in closely related cases.’” United States v. Sothen,
54 M.J. 294, 296
(C.A.A.F. 2001) (quoting United States v. Ballard,
20 M.J. 282, 283 (C.M.A. 1985)).
The appellant bears the burden of demonstrating that any cited cases are “closely related”
to his case and the sentences are “highly disparate.” United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999). Closely related cases include those which pertain to
“coactors involved in a common crime, servicemembers involved in a common or
parallel scheme, or some other direct nexus between the servicemembers whose
sentences are sought to be compared.”
Id. If the appellant meets his burden to
demonstrate closely related cases involve highly disparate sentences, the Government
“must show that there is a rational basis for the disparity.”
Id.
Applying these standards to the present case, we do not find the appellant’s
sentence inappropriately severe. We have given individualized consideration to this
particular appellant, the nature and seriousness of the offenses, the appellant’s record of
service, and all other matters contained in the record of trial. The appellant engaged in
significant illegal drug activity, including its use, introduction onto a military installation,
and manufacture. He also solicited two Airmen to violate a lawful general regulation by
using substances to alter their mood or function. His criminal activity even continued as
court-martial charges were pending against him. The appellant had also recently received
two nonjudicial punishment actions shortly before most of the charged activity, further
demonstrating his lack of rehabilitative potential. These nonjudicial punishment actions
3 ACM 38292
came after the appellant had received a letter of counseling, a letter of admonishment, and
three letters of reprimand for various infractions. The appellant has also failed to
demonstrate that the cited cases are closely related to his own. We therefore find nothing
inappropriate about the appellant’s sentence.
Merging Specifications for Sentencing
The appellant also argues that the military judge should have merged several
specifications for sentencing purposes, as they constituted an unreasonable multiplication
of charges as applied to sentence. As part of the appellant’s pretrial agreement, he
expressly agreed to “waive all waivable motions.” Such a provision in a pretrial
agreement waives claims of multiplicity and unreasonable multiplication of charges, and
extinguishes an appellant’s right to raise those issues on appeal. United States v. Gladue,
67 M.J. 311, 314 (C.A.A.F. 2009). Therefore, the appellant has waived this issue and he
may not raise it on appeal.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are
AFFIRMED.
FOR THE COURT
STEVE LUCAS
Clerk of the Court
4 ACM 38292
