U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32663
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UNITED STATES
Appellee
v.
Brandon E. SMITH
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 25 January 2022
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Military Judge: Jennifer E. Powell.
Sentence: Sentence adjudged on 23 July 2020 by SpCM convened at
Fairchild Air Force Base, Washington. Sentence entered by military
judge on 8 August 2020: Bad-conduct discharge, confinement for 2
months, reduction to E-1, and a reprimand.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Peter
F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before KEY, MEGINLEY, and GOODWIN, Appellate Military Judges.
Judge GOODWIN 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This is an unpublished opinion and, as such, does not serve as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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GOODWIN, Judge:
A military judge sitting as a special court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of one charge and
four specifications of wrongful use of controlled substances, all in violation of
United States v. Smith, No. ACM S32663
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 The
specifications involved offenses Appellant committed between 1 May 2019 and
10 August 2019. The military judge sentenced Appellant to a bad-conduct dis-
charge; confinement for two months for each specification, running concur-
rently to one another; reduction to the grade of E-1, and a reprimand.2 The
convening authority took no action on the findings and sentence, and provided
language for the adjudged reprimand. The military judge signed an entry of
judgment reflecting the adjudged findings and sentence, including the repri-
mand language.
Appellant’s first assignment of error alleges the convening authority failed
to unambiguously direct trial counsel to dismiss with prejudice the originally
preferred Specification 4 of the Charge, thereby failing to comply with a mate-
rial term of the plea agreement.3 Appellant’s second assignment of error, raised
pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), alleges his
sentence is inappropriately severe.
Finding no error materially prejudicial to Appellant’s substantial rights
and following this court’s Article 66(d)(1), UCMJ,
10 U.S.C. § 866(d)(1), man-
date to approve only so much of the sentence as we find, on the basis of the
entire record, should be approved, we affirm the findings and sentence.
I. BACKGROUND
Between on or about 1 May 2019 and on or about 10 August 2019, Appellant
used three Schedule I controlled substances—3,4-methylenedioxymetham-
phetamine (MDMA, also known as “ecstasy”), psilocybin, and lysergic acid di-
ethylamide (LSD)—as well as one Schedule II controlled substance—Adderall.
Appellant used these substances with other Airmen stationed at Fairchild Air
Force Base, Washington. During sentencing, the Government presented no
other evidence than the stipulation of fact and Appellant’s personal data sheet.
Appellant introduced mitigation evidence, including multiple good character
1 Unless otherwise noted, references to the UCMJ are to the Manual for Courts-Mar-
tial, United States (2019 ed.).
2 The plea agreement provided, in part, that Appellant would serve a minimum of zero
days confinement and 150 days maximum confinement for each specification, with the
terms of confinement to run concurrently, consecutively, or a combination of both, as
determined by the military judge. There were no other limitations on the sentence.
3 The originally preferred Specification 4 involved an alleged violation of Article 112a,
UCMJ, for wrongful possession of a controlled substance with intent to distribute.
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United States v. Smith, No. ACM S32663
letters, a photograph presentation, a photograph of the coin presented to Ap-
pellant by his group commander, testimony from Appellant’s parents, and Ap-
pellant’s unsworn statement.
II. DISCUSSION
A. Dismissal with Prejudice
1. Additional Background
On 24 June 2020, Appellant’s squadron commander preferred one charge
and five specifications in violation of Article 112a, UCMJ. According to Appel-
lant’s 30 June 2020 plea agreement, the convening authority agreed to refer
Specifications 1, 2, 3, and 5 of the Charge to special court-martial, “dismiss
with prejudice” Specification 4, and “direct trial counsel to renumber Specifi-
cation 5 as Specification 4.” In exchange, Appellant agreed to plead guilty to
Specifications 1, 2, 3, and 4 of the Charge. That same day, the convening au-
thority stated in his first indorsement to the special order that he was directing
Specifications 1, 2, 3 and 5 of the Charge be referred to trial, that Specification
4 was dismissed, and that trial counsel was to renumber the remaining speci-
fications. Also that same day, trial counsel lined through originally preferred
Specification 4 and wrote “Dismissed on 30 June 2020,” and then placed his
initials next to it. Trial counsel then renumbered originally preferred Specifi-
cation 5 as Specification 4, and dated it that same day and placed his initials
next to this change.
During the court-martial on 23 July 2020, the military judge reviewed the
plea agreement, including the convening authority’s agreement to dismiss orig-
inally preferred Specification 4 with prejudice. The military judge also clarified
with trial counsel that the convening authority had directed dismissal of orig-
inally preferred Specification 4 with prejudice. The Statement of Trial Results,
convening authority’s Decision on Action memorandum, and entry of judgment
(EoJ) only reflect the four referred specifications and do not mention the dis-
missed specification.
Appellant argues the convening authority failed to unambiguously dismiss
originally preferred Specification 4 with prejudice as required by the plea
agreement. Appellant requests we take corrective action by dismissing with
prejudice originally preferred Specification 4 of the Charge. The Government
agrees corrective action is required and similarly urges us to dismiss originally
preferred Specification 4 with prejudice. We disagree with both parties, how-
ever.
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United States v. Smith, No. ACM S32663
2. Law
“When an appellant contends that the [G]overnment has not complied with
a term of the [plea agreement], the issue of noncompliance is a mixed question
of fact and law.” United States v. Smead,
68 M.J. 44, 59 (C.A.A.F. 2009) (citing
United States v. Lundy,
63 M.J. 299, 301 (C.A.A.F. 2006)). Appellant has the
burden to establish both materiality and non-compliance. Lundy, 63 M.J. at
302. “In the event of noncompliance with a material term, we consider whether
the error is susceptible to remedy in the form of specific performance or in the
form of alternative relief agreeable to the appellant.” Smead, 68 M.J. at 59
(citation omitted).
The Courts of Criminal Appeals “may act only with respect to the findings
and sentence as entered into the record” as part of the EoJ. Article 66(d)(1),
UCMJ.
3. Analysis
The plain language of the plea agreement required the convening authority
to dismiss, with prejudice, originally preferred Specification 4 of the Charge
and order the renumbering of Specification 5 as Specification 4. A plain reading
of the trial transcript confirms the parties’ understanding of, and agreement
to, this requirement. On appeal, the Government agrees with Appellant’s as-
sertion that this court should dismiss originally preferred Specification 4 with
prejudice in order to remedy the purported failure of the Government to do so
during the processing of Appellant’s court-martial. Appellant notes in his brief
that this exact remedy has been used by the United States Court of Appeals
for the Armed Forces “in the interest of judicial economy” when “conclud[ing]
that such action is consistent with the intent of the convening authority even
if the action was not specified in the convening authority’s action.” United
States v. Malacara,
71 M.J. 380 (C.A.A.F. 2012) (mem.) (citation omitted).
During the plea agreement inquiry, the military judge discussed with Ap-
pellant whether originally preferred Specification 4 was dismissed with preju-
dice. Appellant agreed it was. The assistant trial counsel also agreed the con-
vening authority directed the dismissal with prejudice. While the words “with
prejudice” do not appear on the charge sheet next to “dismissal,” there is little
question that dismissal was intended to be “with prejudice” when the conven-
ing authority made the referral decision.
This case differs from the cases cited by Appellant in which we have re-
solved errors by either remanding the case for EoJ correction or by dismissing
charges or specifications with prejudice in our decretal paragraph. In those
cases, the charges and specifications in question had been referred to courts-
martial. Here, originally preferred Specification 4 was dismissed prior to refer-
ral and was never before the court-martial. Because it was never before the
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United States v. Smith, No. ACM S32663
court-martial and was not entered into the record as part of the EoJ, we lack
jurisdiction to make the requested correction under Article 66(d)(1), UCMJ.
Therefore, we decline the invitation of the parties to take corrective action in
the form of specific performance.
B. Sentence Severity
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane,
64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole,
31 M.J. 270,
272 (C.M.A. 1990)). Our authority to determine sentence appropriateness,
“which reflects the unique history and attributes of the military justice system,
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)(1), UCMJ. “We assess sentence appropriateness
by considering the particular appellant, the nature and seriousness of the of-
fense, the appellant’s record of service, and all matters 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). Although we have great discretion to deter-
mine 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 omitted).
2. Analysis
Appellant argues that given his age at the time he committed his crimes,
as well as the matters he submitted in extenuation and mitigation, his sen-
tence is inappropriately severe. Appellant's adjudged sentence included two
months of confinement for each of the four specifications to which he pleaded
guilty, to run concurrently, and a bad-conduct discharge compared to the max-
imum punishment of 12 months of confinement and a bad conduct discharge.
Consequently, we find the approved sentence of confinement was on the lighter
side, significantly less than the maximum term of confinement authorized at
the court-martial and the maximum sentence of confinement that Appellant
negotiated under his plea agreement. Appellant’s arguments are more in the
nature of a request for clemency than an appeal of sentence severity. Having
considered Appellant, the nature and seriousness of his admitted offenses, and
all matters contained in the record of trial, to include all matters Appellant
submitted in his case in extenuation, mitigation, and clemency, we conclude
the approved sentence, including a bad-conduct discharge, is not inappropri-
ately severe.
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United States v. Smith, No. ACM S32663
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 and 66(d), UCMJ,
10 U.S.C. §§ 859, 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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