U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39950 (f rev)
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UNITED STATES
Appellee
v.
Dejuan A. JONES
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 25 March 2022
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Military Judge: Thomas J. Alford; Dayle P. Percle (remand).
Sentence: Sentence adjudged on 27 May 2020 by GCM convened at Minot
Air Force Base, North Dakota. Sentence entered by military judge on 26
June 2020 and reentered on 21 December 2021: Bad-conduct discharge,
confinement for 20 months, forfeiture of all pay and allowances, reduc-
tion to E-1, and a reprimand.
For Appellant: Captain David L. Bosner, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Captain
Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.
Before KEY, RICHARDSON, and MERRIAM, Appellate Military
Judges.
Judge MERRIAM delivered the opinion of the court, in which Senior
Judge KEY and Judge RICHARDSON 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This is an unpublished opinion and, as such, does not serve as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. Jones, No. ACM 39950 (f rev)
MERRIAM, Judge:
A general court-martial composed of a military judge alone found Appellant
guilty, in accordance with his pleas and a pretrial agreement (PTA), of one
specification of possession of child pornography on divers occasions, in violation
of Article 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 934.1 The
offenses were committed between March and December 2018. The military
judge sentenced Appellant to a bad-conduct discharge, confinement for 20
months, forfeiture of all pay and allowances, reduction to the grade of E-1, and
a reprimand. The PTA required the convening authority to approve no more
than 24 months of confinement, and contained no further restrictions on the
sentence.
This case is before our court for the second time. Appellant initially raised
two assignments of error: (1) whether the sentence of confinement for 20
months is inappropriately severe, and (2) whether Appellant is entitled to ap-
propriate relief due to the convening authority’s failure to take action on the
sentence as required by law. In response to Appellant’s second assignment of
error, we remanded his case to the Chief Trial Judge, Air Force Trial Judiciary,
to resolve a substantial issue with the convening authority’s decision memo-
randum, as no action was taken on the adjudged sentence. United States v.
Jones, No. ACM 39950,
2021 CCA LEXIS 580, at *6–7 (A.F. Ct. Crim. App. 3
Nov. 2021) (unpub. op.). We deferred deciding whether Appellant’s sentence
was inappropriately severe.
On 9 December 2021, the convening authority took action on the sentence
by approving the sentence in its entirety. On 21 December 2021, the military
judge on remand signed a modified entry of judgment (EoJ). We find the con-
vening authority’s 9 December 2021 action on the sentence complies with ap-
plicable law and the modified EoJ correctly reflects the post-trial actions taken
by the convening authority. The court now addresses whether Appellant’s sen-
tence of confinement for 20 months is inappropriately severe. Finding no error
that materially prejudiced a substantial right of Appellant, we affirm the find-
ings and the sentence.
1 Reference to the punitive article is to the Manual for Courts-Martial, United States
(2016 ed.). Unless otherwise noted, all other references in this opinion to the UCMJ
and Rules for Courts-Martial are to the Manual for Courts-Martial, United States
(2019 ed.).
2
United States v. Jones, No. ACM 39950 (f rev)
I. BACKGROUND
Prior to entering active duty, Appellant created a Dropbox account in which
he stored images and videos of child pornography.2 When he entered active
duty on 6 March 2018, Appellant still possessed “a lot” of these files, including
some that depicted “teenage looking individuals” and some “with younger chil-
dren.”3 On divers occasions between March 2018 and December 2018, Appel-
lant possessed child pornography in his Dropbox account.4
On 4 October 2018, civilian law enforcement received a “Cyber Tipline Re-
port” from the National Center for Missing and Exploited Children (NCMEC)
that on 5 September 2018, 388 images of suspected child pornography were
uploaded to a Dropbox account linked to Appellant’s email address. When the
files were uploaded on 5 September 2018, Appellant was in technical training
school at Sheppard Air Force Base, Texas. After graduating from technical
training, Appellant was assigned to Minot Air Force Base, North Dakota. In
November 2018, when law enforcement accessed Appellant’s Dropbox account
pursuant to a search warrant, Appellant’s account encompassed over 1,600 dig-
ital media files containing images or videos of apparent or suspected child por-
nography.5 NCMEC confirmed that 234 of these images depicted known minor
victims recorded in its Child Recognition and Identification System database.
Approximately 60 of the over 1,600 files saved in Appellant’s Dropbox account
depicted clearly prepubescent boys. These videos and images showed boys dis-
playing their genitalia, touching other boys in a sexual manner, or adults per-
forming sex acts on the children.
2 Dropbox is a file hosting service that allows users to store electronic files remotely
rather than on their own devices.
3 Although these images were stored remotely in his Dropbox account, Appellant had
exclusive access and control over the account, and he was able to upload files to, delete
files from, and view files stored through the account.
4 Appellant admitted he accessed files containing child pornography through the Drop-
box application on his phone during technical school training at Sheppard Air Force
Base, Texas, which ran from 6 May 2018 through 14 September 2018, and at his first
permanent duty station, Minot Air Force Base, North Dakota, from September 2018
until sometime in December 2018. Because he did not have access to his cell phone
during basic military training, Appellant possessed, but did not have access to, the files
contained in his Dropbox account from on or about 6 March 2018 until on or about 5
May 2018.
5 Appellant’s stipulation of fact, admitted as Prosecution Exhibit 1, states that
“[s]everal of the 1,662 files were duplicates and/or cached thumbnail images,” but does
not more precisely detail how many of the images were duplicates.
3
United States v. Jones, No. ACM 39950 (f rev)
On 3 December 2018, Appellant was interviewed by agents of the Air Force
Office of Special Investigations (AFOSI). Under rights advisement, Appellant
confessed to possession of child pornography in his Dropbox account. Appellant
told agents he started to download the images and videos when he was in high
school when he was a minor. Appellant explained that when he began to look
at pornography on the Internet, he was “exploring [his] sexuality.” Appellant
stipulated that he told agents that “because he started watching child pornog-
raphy when he was 15 or 16 years old, and was interested in images of teenag-
ers his age, it’s what he [was] used to and it’s hard for him to stop now.” Ap-
pellant further stipulated he “tried deleting his files a few times while in tech-
nical school, but he ‘just couldn’t do it.’” During his interview with AFOSI, Ap-
pellant described watching a video where two adult men forced a boy who ap-
pears to be six years old to put his mouth on one adult’s penis, while the other
adult penetrated the boy’s anus. Appellant admitted watching this particular
video “too many times,” including while he was at technical school.
During his providence inquiry, Appellant acknowledged knowingly pos-
sessing files containing child pornography after entering active duty. He ex-
plained, “The majority of the files I possessed were of teenage looking individ-
uals. However, I still possessed some files with younger children and I knew
that I possessed these files and that [it] was wrongful.”
II. DISCUSSION
We review issues of sentence appropriateness de novo. United States v.
Lane,
64 M.J. 1, 2 (C.A.A.F. 2006) (citation omitted). Our authority to deter-
mine sentence appropriateness “reflects the unique history and attributes of
the military justice system, [and] includes but is not limited to considerations
of uniformity and evenhandedness of sentencing decisions.” United States v.
Sothen,
54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted). We may affirm
only as much of the sentence as we find correct in law and fact and determine
should be approved on the basis of the entire record. Article 66(d), UCMJ,
10
U.S.C. § 866(d). In assessing sentence appropriateness, this court considers
“the particular appellant, the nature and seriousness of the offense[s], the ap-
pellant’s record of service, and all matters contained in the record of trial.”
United States v. Sauk,
74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (en banc)
(alteration in original) (citation omitted). Although we have great discretion to
determine whether a sentence is appropriate, we have no power to grant
mercy. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010) (citation omit-
ted).
Appellant offers multiple reasons to support his claim that his sentence to
20 months of confinement is inappropriately severe. Appellant alleges the mil-
4
United States v. Jones, No. ACM 39950 (f rev)
itary judge failed to give sufficient credence to mitigation and extenuation ev-
idence admitted at trial. Appellant contended that he was subjected to bullying
in high school and that his initial companionship came through social networks
he accessed through his phone. Appellant recalled that, unlike talking to peo-
ple in person where he could “see the judgment all over their faces,” in online
group chats he was able to “express [his] emotions” and “let loose” with persons
he could trust. People with whom he communicated online would “send random
nudes and pictures.” Some people in the group chats pointed him toward cre-
ating a Tumblr6 account where “everything was so easy to get” and where he
was “exposed to some of the material” leading to his court-martial. Appellant
noted that “[a]t that time, [he] was still too curious about this new way to re-
ceive nudes to think about whether it was wrong or not as a teenager.” Appel-
lant stated the Dropbox repository of images and videos in which he possessed
child pornography was created when he was a minor, before joining the Air
Force, but he understands that what he did as a teen and continued doing into
adulthood was wrong. Appellant observes he admitted his wrongdoing when
confronted by law enforcement, noting he “immediately owned up to the con-
duct at issue without any tendency to misrepresent or distort, being both hon-
est and forthright.”
Appellant also observes that at trial, a forensic psychologist provided ex-
pert opinion testimony that the relevant scientific literature indicates that
“non-contact offenders” such as Appellant have significantly lower recidivism
rates than “contact offenders.”7 Appellant specifically points the court to a psy-
chological evaluation performed by Dr. PS, an expert in forensic psychology. In
terms of whether Appellant was likely to reoffend, Dr. PS concluded that “the
risk that [Appellant] presents is actually quite low in comparison to what we
know about contact offenders. So, the risk to the community is minimal, that
would be definitely one of the things we can say.”
Additionally, Appellant notes that at trial both his squadron commander
and first sergeant testified on his behalf regarding his positive duty perfor-
mance, even while he was under investigation. Appellant argues that this work
performance demonstrates less confinement is necessary to achieve the Gov-
ernment’s interests in punishment, good order and discipline, and deterrence.
Finally, Appellant argues that the adjudged bad-conduct discharge will itself
have lasting effects. Appellant asks this court to reduce the adjudged term of
6 Tumblr is a micro-blogging and social networking website where users can post mul-
timedia and other content.
7 In this context, a “contact offender” refers to one who has had inappropriate physical
contact with an actual child.
5
United States v. Jones, No. ACM 39950 (f rev)
confinement but does not specify a term of confinement he believes is appro-
priate.
Possession of child pornography is unquestionably serious and none of Ap-
pellant’s arguments for why his sentence is inappropriately severe reduces the
seriousness of the offense of which he was convicted. The continuing harm that
the possession of child pornography causes to victims “is itself settled law.”
United States v. Barker,
77 M.J. 377, 384 (C.A.A.F. 2018) (citing Osborne v.
Ohio,
495 U.S. 103, 111 (1990)). In upholding a state proscription of possession
of child pornography, the United States Supreme Court has noted, “[I]t is now
difficult, if not impossible, to solve the child pornography problem by only at-
tacking production and distribution.” Osborne, 495 U.S. at 110. Indeed, the
consumer of child pornography creates a market for, and incentivizes further
production of, child pornography. Id.; see, e.g., United States v. Goff,
501 F.3d
250, 260 (3d Cir. 2007) (opining the consumer of child pornography provides
an economic motive for creating and distributing child pornography). Indeed,
at trial Appellant admitted he had purchased some of the child pornography
he possessed.
Reflecting the seriousness of child pornography possession, Appellant faced
a maximum sentence that included confinement for ten years, as well as a dis-
honorable discharge, reduction to the grade of E-1, and total forfeiture of pay
and allowances. Trial counsel recommended confinement for two years (the
maximum sentence to confinement agreed upon by Appellant and the conven-
ing authority in the PTA),8 a dishonorable discharge, and reduction to airman
basic (E-1). With Appellant’s permission, trial defense counsel argued for a
bad-conduct discharge and “eight to twelve months confinement.”
For at least the first eight months he was on active duty, Appellant pos-
sessed and curated an extensive child pornography collection, some of which
depicted known minor children, and some of which depicted heinous sexual
acts between adults and children. During the charged timeframe, Appellant
purchased child pornography to add to his collection. His collection was not
stagnant; three months before he was confronted by AFOSI agents, Appellant
uploaded 388 images of suspected child pornography to his Dropbox account.
Though Appellant described attempting to stop possessing and viewing child
pornography, he claims he was unable to do so on his own, admitting he would
sometimes deactivate his Dropbox account or delete the Dropbox app, but “a
few days later it would be right back [on] [his] phone.” Appellant admitted to
8 We note Appellant agreed to a PTA under which the maximum approved sentence
could have included, inter alia, a dishonorable discharge and 24 months’ confinement.
Appellant’s actual adjudged and entered sentence is substantially less severe than that
which was possible under the PTA to which he agreed.
6
United States v. Jones, No. ACM 39950 (f rev)
watching “too many times” a video depicting two men engaging in simultane-
ous oral and anal sex with a boy who appeared to be six years old. Appellant’s
own admissions demonstrate the necessity of specific deterrence in this case.
According to the evidence presented by Appellant at trial, his duty perfor-
mance before and after his child pornography possession was discovered was
commendable. One witness testifying on Appellant’s behalf characterized his
work as “amazing.” However, this duty performance is marred by the fact that
Appellant apparently possessed child pornography during the entirety of his
brief active duty military service prior to being caught and confronted by law
enforcement.9 Indeed, Appellant’s military career was so brief that the records
of his service introduced at trial contained no performance reports.
The military judge, who received all the evidence and observed Appellant
at the court-martial, determined that a 20-month term of confinement was ap-
propriate, in addition to a bad-conduct discharge, total forfeitures of all pay
and allowances, reduction to E-1, and a reprimand.
Despite matters in extenuation and mitigation, it is impossible to ignore
that many of the videos and images Appellant possessed depicted exceptionally
graphic and disturbing sexual assaults of children. Nor can we overlook the
sheer volume of child pornography files Appellant possessed throughout
months of his military service.
Having considered the nature and seriousness of Appellant’s admitted of-
fense, and all matters contained in the record of trial, to include all matters
Appellant submitted on his behalf in extenuation, mitigation, and clemency,
we conclude the adjudged and entered sentence is not inappropriately severe.
See Sauk,
74 M.J. at 606.
CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(d), Uniform Code of Military Justice,
10 U.S.C. §§ 859(a), 866(d).
9 As noted above, Appellant did not have access to his child pornography collection
while in basic military training because he did not have possession of his cell phone
during that time.
7
United States v. Jones, No. ACM 39950 (f rev)
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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