United States v. Behunin ( 2023 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Mellodee L. BEHUNIN, Airman First Class
United States Air Force, Appellant
No. 22-0276
Crim. App. No. S32684
Argued February 7, 2023—Decided March 21, 2023
Military Judge: Shadd R. Kidd
For Appellant: Major Matthew L. Blyth (argued); Ma-
jor David L. Bosner.
For Appellee: Captain Olivia B. Hoff (argued); Colo-
nel Naomi P. Dennis, Lieutenant Colonel Matthew J.
Neil, and Mary Ellen Payne, Esq. (on brief).
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS, Judge MAGGS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Behunin, No. 22-0276/AF
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
After meeting in the United States Air Force, Appellant
and Senior Airman (SrA) CM used cocaine and lysergic acid
diethylamide (LSD) while socializing together. SrA CM dis-
tributed these drugs to Appellant. In addition, before Ap-
pellant and SrA CM had ever met, they independently lied
on their Air Force enlistment documents about prior drug
use. When Air Force Office of Special Investigations
(AFOSI) agents separately interviewed them about using
drugs, both Appellant and SrA CM gave false statements.
Yet upon being convicted for these offenses, Appellant was
sentenced to confinement and a bad-conduct discharge
while SrA CM was not sentenced to any confinement and
did not receive a punitive discharge. Appellant now claims
that she is entitled to sentencing relief because her case is
closely related to SrA CM’s case within the meaning of
United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999). How-
ever, for the reasons set forth below, we hold that the lower
court did not abuse its discretion when it concluded that
while Appellant’s case was indeed related to SrA CM’s case,
these cases were not closely related under Lacy. Accord-
ingly, we affirm the judgment of the United States Air
Force Court of Criminal Appeals (CCA).
I. Background
Appellant’s drug use began in high school when she
used cocaine before enlisting in the Air Force. Despite this
drug use, Appellant declared in Air Force enlistment docu-
ments that she had never used any illegal drugs, and she
subsequently entered active duty in August 2018. Around
April 2020, Appellant, who was an airman first class at
that time, met SrA CM. In late spring of 2020, Appellant
consumed drugs on two separate occasions and her source
of the drugs was SrA CM. Specifically, sometime over Me-
morial Day weekend Appellant used LSD with SrA CM and
other airmen at SrA CM’s off-base apartment. And at a
June 6 party, Appellant used cocaine along with SrA CM
and other airmen.
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United States v. Behunin, No. 22-0267/AF
Opinion of the Court
After a party attendee informed AFOSI of suspected
drug use, law enforcement officers separately interviewed
Appellant and SrA CM. Appellant admitted to using co-
caine at the June 6 party but falsely asserted that she had
never used cocaine prior to that occasion. Meanwhile, SrA
CM falsely claimed to AFOSI that he never saw or used
drugs on June 6.
At separate special court-martial proceedings, both Ap-
pellant and SrA CM entered guilty pleas and were con-
victed of their respective misconduct. Specifically, a mili-
tary judge convicted Appellant of one specification of
fraudulent enlistment, one specification of making a false
official statement, one specification of wrongful use of co-
caine, and one specification of wrongful use of LSD, in vio-
lation of Article 83, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 883 (2012), and Articles 107, and
112a, UCMJ, 10 U.S.C. §§ 907, 912a (2018). As for SrA CM,
a military judge convicted him of one specification of fraud-
ulent enlistment, one specification of making a false official
statement, one specification of wrongful use of cocaine, one
specification of wrongful use of LSD, one specification of
wrongful distribution of cocaine, and one specification of
wrongful distribution of LSD, in violation of Articles 83,
107, and 112a, UCMJ.
Despite the overlap in Appellant’s and SrA CM’s of-
fenses of conviction, and despite SrA CM’s higher rank and
additional misconduct, Appellant received a more severe
sentence. The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 110 days, forfeiture of
$1,100 pay per month for four months, and reduction to the
grade of E-1. A panel of members sentenced SrA CM to
hard labor without confinement for three months, forfei-
ture of $500 pay per month for three months, and reduction
to the grade of E-1.
II. The CCA Appeal
On appeal to the CCA, Appellant challenged whether
her “sentence [was] inappropriate in light of a sentence re-
ceived by another junior enlisted Airman, CM, for
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Opinion of the Court
essentially the same misconduct.” United States v. Be-
hunin, No. ACM S32684, 2022 CCA LEXIS 412, at *2,
2022 WL 2813235, at *1 (A.F. Ct. Crim. App. July 18, 2022)
(unpublished). In her argument, Appellant noted that be-
cause SrA CM was tried and sentenced after Appellant’s
case was prosecuted, her “first chance to supplement the
record and claim disparity between CM’s sentence and her
own [was] on appeal.” Id. at *18-19, 2022 WL 2813235, at
*6. Therefore, to enable comparison of these two cases, Ap-
pellant moved to attach the entry of judgment in the case
of SrA CM. In a February 2022 order, the CCA granted the
motion but “deferred deciding whether [it was] authorized
to consider the results in [SrA CM’s case] until” performing
its Article 66, UCMJ, 10 U.S.C. § 866 (2018), review of Ap-
pellant’s case. Id. at *14, 2022 WL 2813235, at *5. When
performing this review, the CCA “assume[d] for purposes
of this appeal only that [it could] consider this information”
contained in SrA CM’s entry of judgment. Id. at *16, 2022
WL 2813235, at *6.
Using the material provided, the CCA determined in
relevant part that Appellant’s case and SrA CM’s case were
“not closely related overall.” Id. at *29, 2022 WL 2813235,
at *10. Recognizing that “Appellant and [SrA] CM wrong-
fully used cocaine and LSD under like circumstances,” the
CCA concluded that the pair was engaged in a “common or
parallel scheme” for the drug offenses. Id. at *27, 2022 WL
2813235, at *9. However, the lower court further found
that although Appellant and SrA CM were both convicted
of fraudulent enlistment and false official statement, there
was no direct nexus between these offenses because Appel-
lant and SrA CM “independently misrepresent[ed] what
they knew about their own drug use to military officials.”
Id. at *28, 2022 WL 2813235, at *10. The CCA elaborated:
We decline to find a nexus where the common
link is that two Airmen independently violated
the same article of the UCMJ and harbored a sim-
ilar purpose—in this case, an intent to deceive—
when they separately committed the misconduct
at issue. The self-serving statements each made
before enlisting and when their conduct was
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Opinion of the Court
under investigation establish mere similarity of
offenses, but do not satisfy the required showing
of nexus.
Id. at *28-29, 2022 WL 2813235, at *10. After considering
other assignments of error, the lower court affirmed the
findings and sentence.
III. The Granted Issues
We granted review of two issues:
I. Appellant and CM faced separate courts-mar-
tial for, inter alia, joint use of controlled sub-
stances. Unlike Appellant, CM received no con-
finement or punitive discharge for essentially the
same misconduct. Did the Air Force Court misap-
ply United States v. Lacy, 50 M.J. 286 (C.A.A.F.
1999) when it held that CM’s and Appellant’s
cases were not closely-related cases whose sen-
tences required comparison?
II. Whether extra-record results of other courts-
martial that were not part of the record of trial
before Appellant’s case was docketed at the CCA
may be considered during its Article 66, UCMJ,
review.
United States v. Behunin, __ M.J. __ (C.A.A.F. 2022) (order
granting review). We can dispositively decide the first issue
by simply assuming without deciding that the CCA
properly considered SrA CM’s entry of judgment.
Therefore, there is no need for us to decide the second issue
and we leave it for resolution in a future case. Accordingly,
the remainder of this opinion solely explains why the lower
court did not abuse its discretion when it concluded that
Appellant’s case and SrA CM’s case were not closely
related.
IV. Standard of Review
“Our review of decisions by the Courts of Criminal Ap-
peals on issues of sentence appropriateness is limited to the
narrow question of whether there has been an ‘obvious mis-
carriage[] of justice or abuse[] of discretion.’ ” United States
v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (alterations in
original) (quoting Lacy, 50 M.J. at 288). An abuse of
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Opinion of the Court
discretion occurs “when [the CCA’s] findings of fact are
clearly erroneous, the court’s decision is influenced by an
erroneous view of the law, or the [CCA’s] decision on the
issue at hand is outside the range of choices reasonably
arising from the applicable facts and the law.” United
States v. Ayala, 81 M.J. 25, 27-28 (C.A.A.F. 2021) (citation
omitted) (internal quotation marks omitted).
V. Applicable Law
Article 66(d)(1), UCMJ, provides the CCAs “broad dis-
cretion to determine whether a sentence ‘should be ap-
proved,’ a power that has no direct parallel in the federal
civilian sector.” Sothen, 54 M.J. at 296. “The [CCAs’] power
to review a case for sentence appropriateness . . . includes
but is not limited to considerations of uniformity and even-
handedness of sentencing decisions.” Id.The CCAs typically have “discretion to consider and
compare other [specific] courts-martial sentences when
[they are] reviewing a case for sentence appropriateness
and relative uniformity.” United States v. Wacha, 55 M.J.
266, 267 (C.A.A.F. 2001). Thus, generally speaking “nei-
ther Article 66[(d)(1)] nor our precedents requires ‘[the
CCAs] to engage in sentence comparison with specific
cases.’ ” United States v. Noble, 50 M.J. 293, 294 (C.A.A.F.
1999) (quoting Lacy, 50 M.J. at 288). However, this general
rule is subject to one exception—the CCAs “are required to
engage in sentence comparison . . . ‘in those rare instances
in which sentence appropriateness can be fairly deter-
mined only by reference to disparate sentences adjudged in
closely related cases.’ ” Sothen, 54 M.J. at 296 (emphasis
added) (quoting United States v. Ballard, 20 M.J. 282, 283
(C.M.A. 1985)).
In reviewing a lower court’s decision in a sentence dis-
parity case, this Court examines three questions:
“(1) whether the cases are ‘closely related’ . . .; (2) whether
the cases resulted in ‘highly disparate’ sentences; and
(3) . . . whether there is a rational basis for the differences”
in the adjudged sentences. Lacy, 50 M.J. at 288. The
granted issue in the instant case only concerns the first
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question—whether the cases of Appellant and SrA CM are
closely related.
“[A]n appellant bears the burden of demonstrating that
any cited cases are ‘closely related’ to his or her case . . . .”
Id. Pursuant to Lacy, cases are closely related if they fit
within at least one of the following three categories: (A) the
servicemembers were “coactors involved in a common
crime,” (B) the “servicemembers [were] involved in a com-
mon or parallel scheme,” or (C) there was “some other di-
rect nexus between the servicemembers whose sentences
are sought to be compared.” Id.
VI. Discussion
We hold that the CCA did not abuse its discretion when
it determined that Appellant’s case was not closely related
to SrA CM’s case. We turn to the three Lacy categories to
explain our conclusion.
A. Coactors
In her brief, Appellant argues that because “[SrA] CM
procured the LSD and helped procure the cocaine that he
then used with [Appellant] . . . . [t]hey were . . . at [a] min-
imum, co-actors in the wrongful use offenses.” Brief for Ap-
pellant at 31, United States v. Behunin, No. 22-0267
(C.A.A.F. Dec. 2, 2022). The Government counters by argu-
ing that “[a] direct nexus between Appellant and [SrA] CM
for the drug use specifications does not alone make the
cases closely related.” Brief for Appellee at 31, United
States v. Behunin, No. 22-0267 (C.A.A.F. Jan. 11, 2023). We
conclude that the Government has the more persuasive ar-
gument here.
In Wacha, we endorsed the CCA’s determination that
two cases were not closely related because all of the charges
and specifications for both servicemembers did not coin-
cide. 55 M.J. at 268 (agreeing with the CCA that cases were
not closely related when “only four of appellant’s 16 drug
offenses involved” the comparator).1 In contrast, in Lacy,
1 This Court’s case in United States v. Brock, 46 M.J. 11(C.A.A.F. 1997), does not hold to the contrary. The Brock
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Opinion of the Court
we held that three cases were closely related, but we note
that this conclusion was reached in tightly circumscribed
circumstances. Namely:
Appellant and two other Marines had sexual
intercourse with an underage girl in the presence
of each other. All three pleaded guilty to indecent
acts and carnal knowledge. All three were tried by
general court-martial, and each elected to be tried
by a military judge sitting alone. The same judge
presided at all three trials. All three Marines were
convicted in accordance with their pleas.
50 M.J. at 287.
These two cases can be viewed as figurative bookends.
On one end is Wacha, where the cases were not closely re-
lated because a substantial number of the charges and
specifications did not overlap. And on the other end is Lacy,
where the cases were closely related because the facts,
charges, forum, factfinder, and trial result were seemingly
identical. Between these two bookends, CCAs have broad
latitude. And in the instant case, we cannot conclude that
the CCA abused its discretion when it decided that Appel-
lant and SrA CM were not “co-actors involved in a common
crime” because they were coactors merely in a subset of the
overall convicted offenses. Behunin, 2022 CCA LEXIS 412,
at *27, 2022 WL 2813235, at *9.
Appellant argues, however, that her case and SrA CM’s
case were closely related because they were charged with
identical offenses—not only the drug offenses but also the
offenses of fraudulent enlistment and false official state-
ment. But the mere fact that the servicemembers were
charged under the same UCMJ articles does not mean that
they were “co-actors involved in a common crime” as con-
templated within the first category of Lacy. Appellant and
SrA CM committed the offenses of fraudulent enlistment
decision merely held that the lower court erred by declining to
consider evidence on the issue of whether two cases were closely
related. Id. at 13. This Court did not make any determination on
whether the cases were in fact closely related. See id.8
United States v. Behunin, No. 22-0267/AF
Opinion of the Court
and false official statement as independent actors rather
than as coactors. This point is most clearly demonstrated
by the fact that Appellant and SrA CM did not even know
one another at the time they each committed the offense of
fraudulent enlistment. Therefore, the lower court did not
abuse its discretion in deciding that Appellant and SrA CM
do not fall within the first category of Lacy.2
B. Common or Parallel Scheme
As Appellant emphasizes in her brief, the CCA indi-
cated in its opinion that Appellant could be viewed as hav-
ing been involved in a common or parallel scheme. But the
nuances and caveats of the relevant passage of the lower
court’s opinion are key and thus it merits direct quotation:
Although Appellant and [SrA] CM were not
plainly co-actors involved in a common crime, they
each sought to use illegal drugs and then did so,
which to us suggests the existence of a “common
or parallel scheme.” If their individual Article
112a, UCMJ, convictions were all this court con-
sidered to determine whether their cases were
closely related, we would not have difficulty find-
ing Appellant has shown that they were.
However, Appellant and [SrA] CM also stand
convicted of fraudulent enlistment after they in-
dependently misrepresented preservice drug use
in applications to join the Air Force. Each was con-
victed, also, of separately making a false official
statement to military investigators with intent to
deceive.
2 We do not mean to suggest that an appellant and the
putative coactor must be convicted of identical offenses in order
for them to have closely related cases. See Sothen, 54 M.J. at 296(holding that cases involving a military appellant and a civilian
coactor could be closely related even though the military
“appellant was convicted of multiple serious offenses, while his
[civilian] co-actor was convicted only of a single count”). It is the
nexus between the convicted offenses that serves as the key
determinant.
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Opinion of the Court
Behunin, 2022 CCA LEXIS 412, at *27, 2022 WL 2813235,
at*9 (emphasis added) (footnote omitted) (citation
omitted).
Considering the totality of these circumstances, we can-
not find that the CCA abused its discretion when it reached
its legal conclusion that the two cases here were not part of
a “common or parallel scheme.” Specifically, despite the
fact that they both were charged with identical UCMJ of-
fenses, there was no direct nexus between the actual con-
duct of Appellant and SrA CM in regard to the serious of-
fenses of fraudulent enlistment and false official
statement. Simply stated, Appellant and SrA CM were in-
dependent actors in regard to these crimes. Accordingly, it
fell within the broad discretion of the CCA to decide that
holistically, there was no common or parallel scheme here
for purposes of a sentence disparity analysis.
C. Other Direct Nexus
In terms of the third category under Lacy, Appellant in-
sistently points to the similarity of the offenses with which
Appellant and SrA CM were charged. But as this Court
stated in United States v. Washington, 57 M.J. 394, 401
(C.A.A.F. 2002), “[t]he mere similarity of offenses is not suf-
ficient” for sentence disparity purposes. And here, because
Appellant and SrA CM were independent actors with re-
spect to their separate fraudulent enlistment and false of-
ficial statement offenses, it was not an abuse of discretion
for the CCA to conclude that there was no “other direct
nexus” between these cases. Behunin, 2022 CCA LEXIS
412, at *29, 2022 WL 2813235, at*10. Accordingly, Appel-
lant has not provided us with a sound basis to reverse the
lower court’s holding that Appellant’s case and SrA CM’s
case were not “closely related.”
D. Conclusion
In light of this discussion, we conclude that it was
within “the range of choices reasonably arising from the
applicable facts and the law” for the CCA to conclude that
the three Lacy categories were not met here. Ayala, 81 M.J.
at 28 (internal quotation marks omitted) (citation omitted).
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Opinion of the Court
As such, the CCA did not abuse its discretion when it held
that Appellant’s and SrA CM’s cases were not closely re-
lated cases whose sentences required comparison.
VII. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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