United States v. Baier , 2005 CAAF LEXIS 1 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Michael D. BAIER, Private First Class (E-2)
U.S. Marine Corps, Appellant
No. 04-0340
Crim. App. No. 200200476
United States Court of Appeals for the Armed Forces
Argued October 26, 2004
Decided January 3, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Commander Eric J. McDonald, JAGC, USN
(argued); Lieutenant Jason S. Grover, JAGC, USN (on brief).
For Appellee: Captain Wilbur Lee, USMC (argued); Lieutenant
Colonel William K. Lietzau, USMC (on brief); Lieutenant Frank
Gatto, JAGC, USNR, Commander Robert P. Taishoff, JAGC, USN.
Military Judge: R.K. Fricke
This opinion is subject to editorial correction before final publication.
United States v. Baier, No. 04-0340/MC
Chief Judge GIERKE delivered the opinion of the Court.
This case concerns the legal standard that the Courts of
Criminal Appeals use when carrying out their responsibility
under Article 66(c) of the Uniform Code of Military Justice1
(UCMJ) to ensure that a sentence is appropriate. The lower
court’s opinion quotes an incorrect standard for determining
sentence appropriateness. In using that language, however, the
lower court cited a 19-year-old summary disposition of this
Court that was marred by a mistaken and misleading citation.
That mistake is a weed in the garden of our jurisprudence. We
will now pull it up by the roots. More importantly, we will
also discuss the appropriate standard of review that the Courts
of Criminal Appeals must apply in fulfilling their statutory
obligation to ensure sentence appropriateness.
Background
In a trial before a military judge alone, Appellant pleaded
guilty to and was found guilty of conspiracy to wrongfully
distribute LSD, ecstasy, and cocaine; wrongful use of LSD;
wrongful distribution of LSD, ecstasy, and cocaine; and breaking
restriction in violation of Articles 81, 112a, and 134 of the
Uniform Code of Military Justice.2 The military judge sentenced
Appellant to confinement for 30 months, forfeiture of all pay
1
10 U.S.C. § 866(c) (2000).
2
10 U.S.C. §§ 881, 912a, 934 (2000).
2
United States v. Baier, No. 04-0340/MC
and allowances, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority approved the sentence as
adjudged and, in accordance with the pretrial agreement,
suspended confinement in excess of 24 months for 12 months from
the date of trial.
When his case was before the Navy-Marine Corps Court of
Criminal Appeals, Appellant raised an assignment of error
asserting that a dishonorable discharge was inappropriately
severe for his offenses. Appellant urged the lower court to
affirm a bad-conduct discharge in its place. In an unpublished
per curiam opinion, the lower court rejected Appellant’s request
and affirmed the sentence as adjudged. We granted Appellant’s
petition to determine whether the lower court used the correct
legal standard when determining the appropriateness of
Appellant’s sentence.3
Discussion
In its opinion affirming Appellant’s sentence, the lower
court quoted Article 66(c) and noted that its task was to
determine “whether the accused received the punishment he
deserved.” Citing our opinion in United States v. Healy,4 the
lower court properly distinguished its sentence appropriateness
role from the convening authority’s power to grant clemency.
3
60 M.J. 119 (C.A.A.F. 2004).
4
26 M.J. 394 (C.M.A. 1988).
3
United States v. Baier, No. 04-0340/MC
The lower court then cited our decision in United States v.
Lanford5 for the proposition that it had the authority to
“disapprove any portion of a sentence that it deems
inappropriately severe.”
The issue in this case arises from the next passage in the
lower court’s opinion:
An appropriate sentence results from an
“individualized consideration of the particular
accused on the basis of the nature and seriousness of
the offense and the character of the offender.”
United States v. Rojas, 15 M.J. 902, 919 (N.M.C.M.R.
1983) (citing United States v. Snelling, 14 M.J. 267(C.M.A. 1982)), aff’d, 20 M.J. 330 (C.M.A. 1985).
When reviewing a sentence it is important to consider
the sense of justice of the community where the crime
was committed which should not be disturbed unless
“the harshness of the sentence is so disproportionate
to the crime as to cry out for equalization.” Rojas,
15 M.J. at 919.
After discussing the facts of Appellant’s case, the lower
court concluded its sentence appropriateness analysis with
another citation to Rojas: “The appellant received the
individual consideration required based on the seriousness of
his offenses and his own character, which is all the law
requires. Rojas, 15 M.J. at 919. As such, we decline to grant
relief.”
Based on that language, it is impossible for us to
determine whether the lower court conducted an independent
assessment of the appropriateness of Appellant’s sentence or
5
6 C.M.A. 371, 376, 20 C.M.R. 87, 92 (1955).
4
United States v. Baier, No. 04-0340/MC
merely deferred to the “individual consideration” Appellant had
previously received from the military judge and the convening
authority. Nor can we determine whether the lower court
independently assessed the sentence’s appropriateness for this
particular offender or merely determined that the sentence was
not “so disproportionate to the crime as to cry out for
equalization.”
The lower court’s reliance on its 1983 Rojas decision leads
to this confusion. In 1981, Lance Corporal Armando Rojas was
sentenced to death for the premeditated murder of another
Marine.6 The Navy-Marine Corps Court affirmed the findings and
death sentence in February 1983.7 Eight months later, this Court
issued its opinion in United States v. Matthews,8 which
invalidated the death penalty system under which Rojas had been
tried and condemned. In January 1984, we set aside the Navy-
Marine Corps Court’s Rojas decision and remanded the case “for a
de novo review by a new panel containing no members of the panel
which originally reviewed the case.”9 This disposition was
designed not only to allow the lower court to apply Matthews to
the case, but also to moot an issue concerning alleged judicial
impropriety when the Navy-Marine Corps Court originally
6
15 M.J. at 905.
7
Id. at 932.
8
16 M.J. 354 (1983).
9
United States v. Rojas, 17 M.J. 154, 155 (C.M.A. 1984).
5
United States v. Baier, No. 04-0340/MC
considered the Rojas case.10 The lower court’s opinion in this
case failed to note that Rojas decision.
In August 1984, consistent with our decision in Rojas, a
new three-judge panel of the Navy-Marine Corps Court set aside
Rojas’s death sentence and instead affirmed a sentence including
confinement for life.11 In June 1985, we issued an order that
simply affirmed “the decision of the United States Navy-Marine
Corps Court of Military Review.”12 Unfortunately, the published
version of this order contained something that the original
order did not: a citation to “15 M.J. 902.”13 That is the
citation for the Navy-Marine Corps Court’s original February
1983 decision that we set aside in January 1984. This citation
was obviously incorrect because we were affirming the Navy-
Marine Corps Court’s August 23, 1984 opinion issued by the new
panel. We were not affirming that court’s earlier opinion,
which had affirmed a death sentence imposed under
unconstitutional procedures, which we had expressly set aside,
and which the lower court had superseded with a more recent
opinion.
The error in our published Rojas order may have contributed
to the lower court’s confusion in this case. The Navy-Marine
10
Id.11
United States v. Rojas, NMCM 81 2019, 1984 CMR LEXIS 3773, at
*6 (N-M.C.M.R. Aug. 23, 1984) (footnote omitted).
12
20 M.J. 330 (C.M.A. 1985) (summary disposition).
13
Id.6
United States v. Baier, No. 04-0340/MC
Corps Court’s opinion followed the quotation from its superseded
1983 Rojas opinion with a citation to that decision accompanied
by the erroneous subsequent history, “aff’d, 20 M.J. 330 (C.M.A.
1985).” Let there be no further confusion: we did not affirm
the Navy-Marine Corps Court’s February 1983 Rojas decision, but
rather “set [it] aside.”14
More importantly, the language that the lower court quoted
in this case from its superseded Rojas opinion15 is legally
incorrect. A Court of Criminal Appeals must determine whether
it finds the sentence to be appropriate. It may not affirm a
sentence that the court finds inappropriate, but not “so
disproportionate as to cry out” for reduction. As the Army
Court has recognized, Article 66(c)’s sentence appropriateness
provision is “a sweeping Congressional mandate to ensure ‘a fair
and just punishment for every accused.’”16 Article 66(c)
“requires that the members of [the Courts of Criminal Appeals]
independently determine, in every case within [their] limited
Article 66, UCMJ, jurisdiction, the sentence appropriateness of
each case [they] affirm.”17
14
Rojas, 17 M.J. at 155.
15
The language that the lower court quoted originated in United
States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980).
16
United States v. Bauerbach, 55 M.J. 501, 504 (A. Ct. Crim.
App. 2001) (quoting Lanford, 6 C.M.A. at 378, 20 C.M.R. at 94).
17
Id. at 506.
7
United States v. Baier, No. 04-0340/MC
It is possible that in this case, the lower court
“independently determined” the sentence’s appropriateness. But
the lower court’s recitation of an incorrect standard from its
superseded Rojas opinion suggests that it may have relied on an
improperly circumscribed standard. To ensure that Appellant was
not prejudiced by the lower court’s erroneous view of the law,
we set aside the lower court’s opinion as to the sentence and
remand the case for a new Article 66(c) sentence appropriateness
determination using the correct standard. Of course, we express
no opinion as to how that new sentence appropriateness review
should be resolved. That is a matter committed to the sound
discretion of the lower court, using proper legal standards.
Conclusion
The decision of the Navy-Marine Corps Court of Criminal Appeals
is affirmed as to findings and set aside as to sentence. The
record is returned to the Judge Advocate General of the Navy for
remand to the Navy-Marine Corps Court for a new sentence
appropriateness review. Thereafter, Article 67 will apply.
8