U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40130
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UNITED STATES
Appellee
v.
Daionte K. SCOTT
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 19 May 2022
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Military Judge: Sterling C. Pendleton.
Sentence: Sentence adjudged 29 March 2021 by GCM convened at Ram-
stein Air Base, Germany. Sentence entered by military judge on 31 May
2021: Dishonorable discharge, confinement for 21 months, reduction to
E-1, and a reprimand.
For Appellant: Lieutenant Colonel Todd J. Fanniff, USAF; Major Spen-
cer R. Nelson, USAF.
For Appellee: Major Joshua M. Austin, USAF; Major John P. Patera,
USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge KEY and Judge MEGINLEY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Scott, No. ACM 40130
ANNEXSTAD, Judge:
A general court-martial composed of a military judge convicted Appellant,
in accordance with his pleas and pursuant to a plea agreement, of two specifi-
cations of aggravated assault upon a child in violation of Article 128, Uniform
Code of Military Justice (UCMJ),
10 U.S.C. § 928.1 The military judge sen-
tenced Appellant to a dishonorable discharge, 21 months of confinement, re-
duction to the grade of E-1, and a reprimand. The convening authority took “no
action” on the findings or sentence.2
On appeal, Appellant raises one issue: whether Appellant’s sentence is in-
appropriately severe.3 Finding no error materially prejudicial to a substantial
right of Appellant, we affirm the findings and sentence.
I. BACKGROUND
Appellant entered active duty service on 19 October 2016 and was assigned
to the 86th Maintenance Squadron at Ramstein Air Base, Germany. Appellant
was married to TS and the couple had two children. Their youngest child, RS,
was born in May 2019. As Appellant described to the military judge, he was
holding his two-month-old son, RS, in his lap in July 2019. Appellant explained
that RS was fussy, kicking his legs, and crying. Appellant admitted that he felt
overwhelmed and that he placed both of his hands around RS’s torso and
squeezed him with a significant amount force out of frustration. He explained
that his actions caused RS to cry even harder.
A couple of weeks later, around 4 August 2019, Appellant was attempting
to feed RS in the living room of their off-base residence. Appellant described
for the military judge that RS was again fussy, not eating, and had vomited
while Appellant was holding him at one point. After RS vomited, Appellant
described feeling overwhelmed and that he again grabbed both of RS’s arms
out of frustration and squeezed him. He then explained that he bent over to
retrieve some items with RS still in his arms, which put additional pressure on
RS’s left arm. Appellant stated that he then took RS out of the swaddle, “[j]ust
1 All references to the UCMJ are to the Manual for Courts-Martial, United States (2019
ed.).
2 The plea agreement (PA) provided a minimum term of confinement of 12 months and
a maximum term of confinement of 27 months for each specification, with all periods
of confinement to run concurrently. The PA also required that the sentence include at
least a bad-conduct discharge, with the possibility that a dishonorable discharge could
be adjudged. There were no other limitations on the sentence.
3 The issue was raised by Appellant pursuant to United States v. Grostefon,
12 M.J.
431 (C.M.A. 1982).
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United States v. Scott, No. ACM 40130
to see if [RS] would eat better that way,” and that is when he noticed RS’s left
arm was limp. At that point TS, who had been asleep, heard RS crying and
came into the living room. Appellant told TS that something was wrong with
RS’s arm. TS then took RS to the Landstuhl Regional Medical Center, and a
full body X-ray was taken. The X-rays showed that RS suffered a spiral frac-
ture to his left humerus, between his elbow and the shoulder, and that he also
had five bilateral rib fractures—three on his left side and two on his right.
During presentencing the Government presented testimony from Lieuten-
ant Colonel (Lt Col) HA, who the military judge recognized as an expert in the
field of forensic pediatrics. Lt Col HA generally discussed that the type of in-
jury to RS’s ribs would have caused significant pain, and would have made it
uncomfortable to breathe. Additionally, he testified that the injuries to RS’s
ribs were caused by squeezing and that the injury to RS’s arm required the
application of excessive force.
II. DISCUSSION
Appellant contends that his sentence is inappropriately severe in light of
the mitigating evidence that he presented regarding his own father’s absence
while he was child. Specifically, Appellant argues that his father’s absence left
him with “a permanent scar” that caused him to engage in inappropriate be-
havior when distressed. Additionally, Appellant contends that he did not seek
mental health treatment due to the culture in the military of not wanting to
appear weak. We are not persuaded by Appellant’s arguments and find that no
relief is warranted.
A. Additional Background
During presentencing, Appellant offered a written unsworn statement
where he described his difficult childhood and the fact that his father was
mostly absent. Appellant also made a verbal unsworn statement to the military
judge where he took responsibility for his criminal conduct, expressed remorse
for his crimes, and provided apologies to his son, wife, and mother for the pain
that he caused. Appellant presented no other evidence.
B. Law
“We review sentence appropriateness de novo.” United States v. Datavs,
70
M.J. 595, 604 (A.F. Ct. Crim. App. 2011) (citing United States v. Baier,
60 M.J.
382, 383–84 (C.A.A.F. 2005)), aff’d,
71 M.J. 420 (C.A.A.F. 2012). “We assess
sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offense[s], the appellant’s record of service, and all mat-
ters contained in the record of trial.” United States v. Anderson,
67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). While we have
great discretion in determining whether a sentence is appropriate, we are not
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United States v. Scott, No. ACM 40130
authorized to engage in exercises of clemency. United States v. Nerad,
69 M.J.
138, 146 (C.A.A.F. 2010).
C. Analysis
We have conducted a thorough review of Appellant’s entire court-martial
record, including both his written and oral unsworn statements, his enlisted
performance report, and the materials submitted by Appellant during clem-
ency. We conclude that the nature and seriousness of the offenses clearly sup-
port the adjudged sentence.
Here, Appellant intentionally assaulted his infant son on multiple occa-
sions. Appellant admitted to squeezing RS with enough force to break five of
his ribs and to fracturing his son’s left arm a couple of weeks later. Appellant’s
actions caused RS significant pain and made it uncomfortable for him to
breathe. Appellant’s criminal behavior showed a gross disregard towards the
safety of his infant son. We also note that Appellant cited no legal precedent or
authority to support his contention that his sentence is inappropriately severe.
Appellant’s argument and analysis on appeal is similar to his unsworn state-
ments and matters he provided to the convening authority during clemency.
“While these matters are appropriate considerations in clemency, they do not
show that the appellant’s sentence is inappropriately severe.” United States v.
Aguilar,
70 M.J. 563, 567 (A.F. Ct. Crim. App. 2011). We find Appellant’s reci-
tation of these prior arguments amounts to another attempt at clemency,
which is not an authorized function of this court. See Nerad, 69 M.J. at 146.
Understanding we have a statutory responsibility to affirm only so much of
the sentence that is correct and should be approved, Article 66(d), UCMJ,
10
U.S.C. § 866(d), we conclude that the sentence is not inappropriately severe
and we affirm the sentence adjudged.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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