U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39342 (rem)
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UNITED STATES
Appellee
v.
Jerard SIMMONS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
On Remand from
The United States Court of Appeals for the Armed Forces
Decided 26 May 2022
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Military Judge: Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 12 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 14 July 2017 by GCM convened at Joint Base Langley-Eustis,
Virginia.
For Appellant: Major Ryan S. Crnkovich, USAF; Captain David L. Bos-
ner, USAF.
For Appellee: Major John P. Patera, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge JOHNSON delivered the opinion of the court, in which Sen-
ior Judge POSCH and Senior Judge KEY 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This is an unpublished opinion and, as such, does not serve as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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JOHNSON, Chief Judge:
Appellant’s case is before this court for the third time. A general court-mar-
tial composed of officer members convicted Appellant, contrary to his pleas, of
United States v. Simmons, No. ACM 39342 (rem)
four specifications of sexual assault of a child, one specification of extortion,
and one specification of producing child pornography in violation of Articles
120b, 127, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920b, 927, 934.1 The convening authority approved the adjudged sentence
of a dishonorable discharge, confinement for 12 years, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
Upon our initial review, we found Appellant was not entitled to relief with
regard to the seven issues he raised; however, we found that a new post-trial
process and action were required due to errors in the staff judge advocate’s
recommendation to the convening authority. United States v. Simmons, No.
ACM 39342,
2019 CCA LEXIS 156 (A.F. Ct. Crim. App. 9 Apr. 2019) (unpub.
op.) (Simmons I). Accordingly, we set aside the convening authority’s action
and returned the record of trial to The Judge Advocate General for remand to
the convening authority. Id. at *57. On remand, after receiving additional
clemency submissions from Appellant, the convening authority again approved
the adjudged sentence.
Appellant’s record returned to this court for completion of our review pur-
suant to Article 66, UCMJ,
10 U.S.C. § 866. After re-docketing, Appellant
raised an additional issue: whether he was entitled to relief due to delays in
the processing of his case during the remand in light of United States v.
Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006). Although we found no violation of
Appellant’s due process rights, we found some relief for unreasonable delay
was warranted in light of United States v. Tardif,
57 M.J. 219, 224 (C.A.A.F.
2002), and United States v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015),
aff’d,
75 M.J. 264 (C.A.A.F. 2016). Accordingly, we affirmed the findings but
only so much of the sentence as provided for a dishonorable discharge; confine-
ment for 11 years, 11 months, and 20 days; forfeiture of all pay and allowances;
and reduction to the grade of E-1. United States v. Simmons, No. ACM 39342,
2020 CCA LEXIS 356, at *16 (A.F. Ct. Crim. App. 2 Oct. 2020) (unpub. op.),
rev’d and remanded, ___ M.J. ___, No. 21-0069,
2022 CAAF LEXIS 164
(C.A.A.F. 24 Feb. 2022) (Simmons II).
The United States Court of Appeals for the Armed Forces (CAAF) granted
review with respect to one of the issues Appellant raised in his original appeal.
The CAAF set aside the findings of guilty as to Charge II and its Specification,
alleging extortion in violation of Article 127, UCMJ; affirmed the remaining
findings; and set aside the sentence. The CAAF dismissed the set-aside charge
and specification and returned the record to The Judge Advocate General for
1 All references in this opinion to the punitive articles of the UCMJ are to the Manual
for Courts-Martial, United States (2012 ed.). All other references to the UCMJ are to
the Manual for Courts-Martial, United States (2016 ed.).
2
United States v. Simmons, No. ACM 39342 (rem)
remand to this court to either reassess the sentence or to order a sentence re-
hearing. United States v. Simmons, ___ M.J. ___, No. 21-0069,
2022 CAAF
LEXIS 164, at *20 (C.A.A.F. 24 Feb. 2022).
On remand, Appellant urges us to order a rehearing on the sentence,
whereas the Government contends we should reassess the sentence. We find
reassessment is appropriate and take corresponding action in our decretal par-
agraph.
I. BACKGROUND
We provided the factual background of Appellant’s case in our first opinion.
See Simmons I, unpub. op. at *3–7. A recapitulation of the evidence presented
at trial is unnecessary here; for purposes of the current remand, a summary of
the circumstances of the charges and specifications will suffice.
Appellant’s offenses involve two girls under the age of 16 years, AS and CL,
with whom Appellant developed sexual relationships when he was an 18-year-
old high school student in Norfolk, Virginia. Appellant then joined the Air
Force in August 2013. After completing basic training, he returned to the Nor-
folk area on leave in late December 2013 before attending technical training.
After Appellant completed technical training he was stationed near Norfolk at
Joint Base Langley-Eustis, Virginia. Appellant was convicted of several of-
fenses as a result of his continued sexual activity with AS and CL after joining
the Air Force.
With respect to AS, Appellant was convicted of three specifications of sex-
ual assault on a child in violation of Article 120b, UCMJ, between on or about
20 August 2013 and on or about 31 August 2014, by penetrating AS’s vulva,
anus, and mouth with his penis, each on divers occasions. Appellant was also
convicted of knowingly and wrongfully producing child pornography in viola-
tion of Article 134, UCMJ, between on or about 1 July 2014 and on or about 8
July 2014, by making a video of AS engaged in sexually explicit conduct, spe-
cifically a video of her face with his penis in her mouth.
With respect to CL, Appellant was convicted of one specification of sexual
assault on a child in violation of Article 120b, UCMJ, on a single occasion on
or about 31 December 2013, by penetrating CL’s mouth with his penis.
Appellant was also convicted of one specification of extortion of CL in vio-
lation of Article 127, UCMJ, on divers occasions between on or about 27 Octo-
ber 2013 and on or about 31 December 2014, by threatening to publicize an
image of CL performing oral sex on Appellant in order to obtain oral sex from
CL. As described above, the CAAF set aside the finding of guilty as to this
charge and specification, and dismissed them.
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United States v. Simmons, No. ACM 39342 (rem)
II. DISCUSSION
A. Law
Under Article 59(a), UCMJ,
10 U.S.C. § 859(a), a court-martial sentence
may not be held incorrect by virtue of legal error “unless the error materially
prejudices the substantial rights of the accused.” If we can conclude that an
adjudged sentence would have been of at least a certain severity absent any
error, “then a sentence of that severity or less will be free of the prejudicial
effects of error; and the demands of Article 59(a) will be met.” United States v.
Sales,
22 M.J. 305, 308 (C.M.A. 1986).
We have broad discretion first to decide whether to reassess a sentence,
and then to arrive at a reassessed sentence. United States v. Winckelmann,
73
M.J. 11, 12 (C.A.A.F. 2013). In deciding whether to reassess a sentence or re-
turn a case for a rehearing, we consider the totality of the circumstances in-
cluding the following factors: (1) “Dramatic changes in the penalty landscape
and exposure;” (2) “Whether an appellant chose sentencing by members or a
military judge alone;” (3) “Whether the nature of the remaining offenses cap-
ture[s] the gravamen of criminal conduct included within the original offenses
and . . . whether significant or aggravating circumstances addressed at the
court-martial remain admissible and relevant to the remaining offenses;” and
(4) “Whether the remaining offenses are of the type that judges of the courts of
criminal appeals should have the experience and familiarity with to reliably
determine what sentence would have been imposed at trial.”
Id. at 15–16 (ci-
tations omitted).
B. Analysis
Consideration of the totality of the circumstances including the Winckel-
mann factors leads us to the conclusion that we may reliably reassess the sen-
tence. We address these factors below.
1. Dramatic Changes to Penalty Landscape and Exposure
We find there has been only a slight change in Appellant’s punitive expo-
sure. The parties agree that the setting aside of Appellant’s conviction for ex-
tortion reduced the maximum imposable term of confinement from 153 years
to 150 years. The other potential elements of the sentence—including the dis-
honorable discharge, forfeitures, and reduction in grade actually imposed—
were unaffected by the change. In addition, Appellant remains convicted of
sexual assault committed against two child victims, AS and CL. Accordingly,
we conclude there has been no dramatic change in the penalty landscape or
Appellant’s punitive exposure, and this factor weighs in favor of reassessment.
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United States v. Simmons, No. ACM 39342 (rem)
2. Sentencing by Court Members
Appellant was sentenced by a panel of officer members rather than by a
military judge. This factor weighs in favor of a sentence rehearing. See id. at
16.
3. Gravamen of Criminal Conduct and Aggravating Circumstances
We find the remaining offenses do retain the “gravamen of criminal conduct
included within the original offenses.” Id. Appellant remains convicted of five
of the original six offenses of which he was found guilty. In addition, as meas-
ured by maximum authorized punishments, Appellant remains convicted of
the five most serious offenses of which he was found guilty. With regard to
significant or aggravating circumstances, we conclude that during presentenc-
ing proceedings the court members could have considered Appellant’s threats
as an aggravating circumstance relating to the sexual assault of CL. In other
words, the court members would have received essentially the same evidence
during the court-martial without the extortion specification. Accordingly, we
find this factor favors reassessment.
4. Type of Offenses
This court has significant experience reviewing convictions for sexual of-
fenses against children, including sexual assault by committing sexual acts
with children under the age of 16 years. We also have significant experience in
reviewing convictions for child pornography offenses, including the creation of
child pornography by filming sexual acts with minors. We find this factor also
weighs in favor of reassessment.
5. Additional Considerations
We recognize that our determination whether to reassess a sentence is
“based on the totality of the circumstances presented,” and is not limited to the
four factors articulated in Winckelmann. Id. at 15. Among the other circum-
stances we have considered is that Appellant has been serving his term of con-
finement since 14 July 2017, nearly five years ago. His direct appeal has al-
ready wound its way through multiple appellate court opinions and remands.
Where we may reliably determine what sentence would have been imposed at
Appellant’s court-martial absent the error, without requiring another court-
martial proceeding and additional appellate review,2 reassessment also serves
the interests of judicial efficiency and finality. Cf. id. (“Remanding to a new
2 See United States v. Johnson,
45 M.J. 88, 90 (C.A.A.F. 1996).
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United States v. Simmons, No. ACM 39342 (rem)
court-martial ‘merely substitute[s] one group of nonparticipants in the original
trial for another.’”) (quoting Jackson v. Taylor,
353 U.S. 569, 580 (1957)).
In addition, we are mindful that this court previously awarded Appellant a
ten-day reduction in his term of confinement due to unreasonable post-trial
delay. Reassessing the sentence ourselves allows us to take this prior award of
relief into consideration to ensure Appellant retains the benefit, and we have
done so in our decretal paragraph.
6. Reassessment
For the foregoing reasons, we find reassessment of Appellant’s sentence
appropriate. The remaining question is what sentence will remove the preju-
dicial effect of Appellant’s erroneous conviction for extortion.
The Government contends we should reassess and affirm the same sen-
tence this court previously affirmed in Simmons II, citing inter alia the mini-
mal change in the maximum imposable sentence and the continued admissi-
bility of the evidence related to Appellant’s threats to CL as an aggravating
circumstance of the sexual assault of CL. We agree that the evidence and ar-
guments presented at Appellant’s court-martial would have been substantially
similar without the extortion specification. However, the charged extortion re-
ceived significant attention at the court-martial. Although by one measure the
least serious of the six offenses for which Appellant was found guilty, the ex-
tortion specification exacerbated the sexual assault of CL. We do not discount
the likelihood that the court members included some quantum of punishment
in their sentence specifically to punish Appellant for the crime of extorting CL.
Having considered the totality of the circumstances, we conclude that a
sentence without Appellant’s conviction for extortion would have included at
least a dishonorable discharge; confinement for 9 years, 11 months, and 20
days; forfeiture of all pay and allowances; and reduction to the grade of E-1.
III. CONCLUSION
The findings of guilty as to Charge I and its four specifications and Charge
III and its Specification were previously affirmed. We reassess the sentence to
a dishonorable discharge; confinement for 9 years, 11 months, and 20 days;
forfeiture of all pay and allowances; and reduction to the grade of E-1. The
sentence as reassessed is correct in law and fact, and no additional error ma-
terially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c).
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United States v. Simmons, No. ACM 39342 (rem)
The sentence as reassessed is AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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