U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40004
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UNITED STATES
Appellee
v.
Damien F. WALTON
Airman Basic (E-1), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 28 February 2022
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Military Judge: Brett A. Landry.
Sentence: Sentence adjudged on 17 October 2020 by GCM convened at
Eielson Air Force Base, Alaska. Sentence entered by military judge on
12 November 2020: Bad-conduct discharge, confinement for 11 months,
forfeiture of all pay and allowances, and a reprimand.
For Appellant: Lieutenant Colonel Garrett M. Condon, USAF.
For Appellee: Major Kelsey B. Shust, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
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This is an unpublished opinion and, as such, does not serve as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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PER CURIAM:
United States v. Walton, No. ACM 40004
In accordance with his pleas and pursuant to a plea agreement, Appellant
was convicted of two specifications of absence from his unit, in violation of Ar-
ticle 86, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 886;1 one spec-
ification each of wrongful distribution of a Schedule II controlled substance
(Adderall), use of marijuana on divers occasions, and possession of marijuana,
in violation of Article 112a, UCMJ, 10 U.S.C. § 912a; one specification of
wrongful access of a government computer, in violation of Article 123, UCMJ,
10 U.S.C. § 923; and one specification of transferring with the intent to traffic
the identity of another (names and social security numbers) in violation of
18
U.S.C. § 1028(a)(7), and one specification of wire fraud in violation of
18 U.S.C.
§ 1343, both in violation of Article 134, UCMJ,
10 U.S.C. § 934.2,3
The maximum punishment based on the convicted offenses included a dis-
honorable discharge and 50 years’ confinement. The plea agreement between
Appellant and the convening authority required the military judge to adjudge
no less than 6 months’ and no more than 14 months’ total confinement for all
the offenses, and specifically did not require the periods of confinement to run
concurrently or consecutively.4 The military judge sentenced Appellant to some
period of confinement for each specification, and determined they all would run
concurrently, resulting in a sentence of 11 months’ confinement, in addition to
a bad-conduct discharge, forfeiture of all pay and allowances, and a reprimand.
The convening authority took no action on the sentence, denied Appellant’s
request for deferral of forfeitures, and provided the language of the reprimand.
Appellant raises one issue on appeal, pursuant to United States v.
Grostefon,
12 M.J. 431 (C.M.A. 1982): whether his sentence is inappropriately
1 One of these specifications was charged as desertion, in violation of Article 85, UCMJ,
10 U.S.C. § 885; Appellant pleaded guilty to the lesser-included offense.
2 All offenses were committed after 1 January 2019. All references to the UCMJ are to
the Manual for Courts-Martial, United States (2019 ed.).
3 In accordance with the plea agreement (PA), the Government withdrew and dis-
missed with prejudice one specification of violation of a lawful general regulation, one
specification of wrongful use of a Schedule II controlled substance (oxycodone), and one
specification of credit card fraud, in violation of Articles 92, 112a, and 121a, UCMJ,
10
U.S.C. §§ 892, 912a, 921a.
4 The PA specified the minimum and maximum periods of confinement for each speci-
fication.
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United States v. Walton, No. ACM 40004
severe. We find no error that materially prejudiced Appellant’s substantial
rights, and we affirm the findings and sentence.5
I. DISCUSSION
A. Sentence Appropriateness
1. Law
We review sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted). We may affirm only as much of
the sentence as we find correct in law and fact and determine should be ap-
proved on the basis of the entire record. Article 66(d), UCMJ,
10 U.S.C.
§ 866(d). “[T]he statutory phrase ‘should be approved’ does not involve a grant
of unfettered discretion but instead sets forth a legal standard subject to ap-
pellate review.” United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010) (first
citing United States v. Hutchison,
57 M.J. 231, 234 (C.A.A.F. 2002); and then
citing United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999)). “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. Fields,
74 M.J. 619, 625 (A.F. Ct. Crim. App. 2015) (citing Nerad, 69
M.J. at 146) (additional citation omitted).
2. Analysis
Appellant claims his sentence was inappropriately severe, and asks this
court to disapprove the bad-conduct discharge or, in the alternative, reduce the
length of confinement adjudged. He notes he served the Air Force for over three
years, including one “overseas assignment” in Alaska. Additionally, sentencing
witnesses testified or provided statements admitted into evidence showing “the
significant challenges he had growing up, the lack of general life experience he
had coming into the Air Force, and the lack of support he received from mem-
bers of his supervisory chain.” He also highlights his plea of guilty pursuant to
a plea agreement, and the harsh and dangerous conditions he faced in pretrial
5 Although not raised by Appellant, we have also considered whether he is entitled to
relief for facially unreasonable post-trial delay. Appellant was sentenced on 17 October
2020, the convening authority (CA) took action on 30 October 2020, and his case was
docketed with this court on 6 January 2021. While the CA’s decision on action to dock-
eting exceeded 30 days, see United States v. Moreno,
63 M.J. 129, 150 (C.A.A.F. 2006),
post-trial processing of Appellant’s case did not exceed the 150-day threshold for a fa-
cially unreasonable delay pursuant to United States v. Livak,
80 M.J. 631, 633 (A.F.
Ct. Crim. App. 2020) (applying a 150-day threshold to an automatic appeal pursuant
to Article 66(b)(3), UCMJ,
10 U.S.C. § 866(b)(3)).
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United States v. Walton, No. ACM 40004
confinement in a civilian facility during the COVID-19 pandemic. He asserts
that these matters “were not adequately taken into consideration by the mili-
tary judge.”
We agree with the Government’s characterization of Appellant’s various
crimes “that demonstrated Appellant’s lack of respect, not only for the Air
Force but for his fellow [A]irmen.” Specifically, Appellant used marijuana sev-
eral times with other Airmen on base; provided a prescription amphetamine to
another Airman; schemed with civilian friends to defraud Airmen whose social
security numbers Appellant wrongfully accessed; and twice absented himself
from his unit, the second ending in apprehension and while Appellant pos-
sessed marijuana. One defrauded victim experienced an increase in lending
rates and the costs associated with changing his legal name, done to “reclaim
some small sense of security in [his] social identity.”
Moreover, the Government asserts “there is nothing redeeming in Appel-
lant’s record of service,” and highlights the letter of counseling, three letters of
reprimand, and nonjudicial punishment that were admitted during presen-
tencing.
We have considered Appellant, the nature and seriousness of his crimes,
his record of service, and all matters contained in the record of trial. See Fields,
74 M.J. at 625. Appellant’s sentence is not inappropriately severe; no relief is
warranted.
The findings and sentence as entered are correct in law and fact, and no
error prejudicial to the substantial rights of the Appellant occurred. Articles
59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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