U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39879 (f rev)
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UNITED STATES
Appellee
v.
Patrick A. CAFFREY
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 19 January 2022
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Military Judge: Christopher M. Schumann; Andrew R. Norton (remand).
Sentence: Sentence adjudged on 28 January 2020 by GCM convened at
Mountain Home Air Force Base, Idaho. Sentence entered by military
judge on 2 March 2020 and reentered on 9 February 2021: Dishonorable
discharge, confinement for 2 years, and reduction to E-1.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Colonel Naomi P. Dennis, USAF; Lieutenant Colonel Mat-
thew J. Neil, USAF; Major Allison R. Gish, USAF; Mary Ellen Payne,
Esquire.
Before JOHNSON, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD 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This is an unpublished opinion and, as such, does not serve as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. Caffrey, No. ACM 39879 (f rev)
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement, of two speci-
fications of sexual abuse of a child in violation of Article 120b, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 920b.1 These two specifications per-
tained to offenses committed in 2018. The military judge sentenced Appellant
to a dishonorable discharge, confinement for two years, and reduction to the
grade of E-1.
Appellant’s case is before us for a second time. His case was originally sub-
mitted to this court for review on its merits without any assignments of error.
Although not raised by Appellant, we determined the convening authority had
erred by not taking action on Appellant’s sentence as required by Executive
Order 13,825, § 6(b),
83 Fed. Reg. 9889, 9890 (
8 Mar. 2018), and Article 60,
UCMJ,
10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.)),
and we remanded his case to the Chief Trial Judge, Air Force Trial Judiciary,
for corrective action. See United States v. Caffrey, No. ACM 39879,
2021 LEXIS
4, at *7–8 (A.F. Ct. Crim. App. 8 Jan. 2021) (unpub. op.). The convening au-
thority subsequently approved Appellant’s sentence, resulting in a new entry
of judgment. When this case was returned to us, Appellant raised a single as-
signment of error: whether his sentence is inappropriately severe. We find no
error materially prejudicial to Appellant’s substantial rights, and we affirm the
findings and sentence.
I. BACKGROUND
In August 2018, Appellant and his wife attended a wedding in Caldwell,
Idaho, with plans to spend the night at the house of a friend of Appellant’s.
According to Appellant, he drank “an abundance of alcohol” at the wedding.
Once at his friend’s house, Appellant continued to drink while he, his wife, and
other members of the household sat around the kitchen table conversing and
playing card games. Later in the evening, Appellant’s friend’s 12-year-old sis-
ter, BM, took a seat at the table next to Appellant.2 Appellant had his arm on
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ
are to the Manual for Courts-Martial, United States (2019 ed.).
2 Although Appellant knew BM, he had not seen her in the nine years preceding this
incident. We note that the parties stipulated that BM was three years old in 2005 when
Appellant met her, which would make her approximately 16 years old at the time of
the offenses in 2018. BM’s mother testified, however, that BM was born in 2006. In
another part of the stipulation of fact, the parties agreed that BM was 12 years old
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United States v. Caffrey, No. ACM 39879 (f rev)
the back of her chair. At some point, Appellant put his hand on BM’s back and
then slid his hand down so that it touched her buttocks over her shorts for “a
couple of seconds.” He then placed his hand on her thigh and then on her vulva,
over her shorts. BM stood up from the table and left the room.
In February 2019, BM told her older sister what had happened because her
brother—Appellant’s friend —was going to get married, and BM was concerned
Appellant would come back for the wedding. This led to BM’s sister confronting
Appellant about the incident via text message. Appellant responded to BM’s
sister by saying he had not touched BM inappropriately. Appellant then de-
cided to relay the accusation to his friend who, in turn, threatened to kill Ap-
pellant—a threat which Appellant reported to a co-worker and his first ser-
geant. In the ensuing investigation, Appellant eventually confessed to touching
BM’s thigh and vulva after initially equivocating on whether he had done so.
Appellant ultimately pleaded guilty to two specifications of sexual abuse of
a child (one for touching BM’s buttocks and one for touching her vulva). This
meant the maximum sentence Appellant faced was confinement for 40 years,
reduction to the grade of E-1, forfeiture of all pay and allowances, and a dis-
honorable discharge. Appellant’s pretrial agreement limited the maximum
confinement the convening authority could approve to 30 months, but it did
not otherwise restrict the convening authority’s discretion. Trial counsel asked
the military judge to sentence Appellant to “at least four years” and a dishon-
orable discharge. Trial defense counsel, on the other hand, did not recommend
a specific sentence, but asked the military judge to neither sentence Appellant
to four years of confinement nor adjudge a dishonorable discharge. The mili-
tary judge sentenced Appellant to two years of confinement, a dishonorable
discharge, and reduction in grade to E-1.
During the Government’s sentencing case, trial counsel called BM’s mother
to testify about how BM had become less affectionate, less trusting, and more
isolated since she disclosed the abuse. BM also testified that she was “confused
and scared” when Appellant touched her and that she still felt “betrayed” and
“violated” at the time of the trial. The Defense introduced a number of charac-
ter letters from Appellant’s co-workers and supervisors attesting to his good
military character, his good duty performance, and their support for Appellant.
“[a]t all dates and times relevant” to the specifications. During his providence inquiry,
Appellant repeatedly agreed that BM had not attained the age of 16 years at the time
of his offenses. Considering the entirety of Appellant’s providence inquiry and all the
matters in the record of trial, we conclude the reference to BM being three years old in
2005 was an oversight. Appellant has not raised the matter as an error and our review
has not disclosed any prejudice.
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United States v. Caffrey, No. ACM 39879 (f rev)
Appellant’s first sergeant also testified that Appellant had “great” rehabilita-
tion potential. During his unsworn statement, Appellant turned to BM and her
family members in the gallery and apologized to them. He also told the military
judge he had been raised in an abusive home and was homeless for a period in
high school until another family took him into their household. The Defense
further introduced letters from Appellant’s wife, mother, father-in-law, and
two members of the family who took Appellant in, all of which described Ap-
pellant’s character in a positive light.
II. DISCUSSION
On appeal, Appellant contends the dishonorable discharge component of
his sentence renders his overall sentence inappropriately severe. He points to
his intoxication at the time, the fact his offenses comprised only a “few sec-
onds,” the fact he confessed, his decision to plead guilty, his apology to BM and
her family, his difficult childhood, and the unwavering support of those who
presented matters on his behalf at his court-martial. He asks us to set aside
his dishonorable discharge.
We review issues of sentence appropriateness de novo. See 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 review a case for sentence appropriate-
ness “reflects the unique history and attributes of the military justice system,
[and] includes but is not limited to, considerations of uniformity and evenhand-
edness 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 sen-
tence 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). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense, 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) (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) (cita-
tion omitted).
We considered Appellant; the nature and seriousness of his admitted of-
fenses; his record of military service; and all matters contained in the record of
trial, to include all matters he submitted in his case in extenuation and miti-
gation. Although Appellant made a strong case in sentencing for the proposi-
tions that he had overcome adversity in his childhood, is highly regarded by
others, and succumbed to a momentary lapse of judgment, his conduct was
severe. We readily acknowledge we have seen far more aggravated cases, but
Appellant molested his friend’s sister, a child, while he sat at a kitchen table
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United States v. Caffrey, No. ACM 39879 (f rev)
with that friend. Appellant’s conduct led to changes in BM’s behavior which
continued through Appellant’s court-martial, nearly a year after BM disclosed
the abuse. What Appellant characterizes as a “few seconds” amounts to serious
offenses which subjected Appellant to 20 years in confinement for each specifi-
cation. We conclude the approved sentence, including a dishonorable dis-
charge, is not inappropriately severe, and we decline to grant him the relief he
requests.
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 sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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