United States v. Flores ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Israel E. FLORES, Senior Airman
United States Air Force, Appellant
No. 23-0198
Crim. App. No. 40294
Argued November 7, 2023—Decided March 14, 2024
Military Judge: Pilar G. Wennrich
For Appellant: Major Heather M. Caine, USAF (ar-
gued); Megan P. Marinos, Esq. (on brief); Major Mat-
thew Blyth, USAFR.
For Appellee: Major Vanessa Bairos, USAF (ar-
gued); Colonel Matthew D. Talcott, USAF, Lieuten-
ant Colonel James P. Ferrell, USAF, and Mary Ellen
Payne, Esq. (on brief).
Amicus Curiae in Support of Neither Party: James
A. Young, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Judge SPARKS and Judge HARDY joined.
Chief Judge OHLSON filed a separate opinion con-
curring in part and dissenting in part, in which
Judge JOHNSON joined.
_______________
United States v. Flores, No. 23-0198/AF
Opinion of the Court
Judge MAGGS delivered the opinion of the Court.
The granted issue in this appeal is “whether sentence
appropriateness review for segmented sentencing must
consider each segmented sentence to confinement, or in-
stead only the overall sentence.” United States v. Flores, 83
M.J. 448 (C.A.A.F. 2023) (order granting review). We hold
that when a Court of Criminal Appeals (CCA) conducts a
sentence appropriateness review under Article 66(d), Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 866(d)
(2018), the CCA must consider the appropriateness of each
segment of a segmented sentence and the appropriateness
of the sentence as a whole. Although the United States Air
Force Court of Criminal Appeals (AFCCA) did not ex-
pressly state this rule in its opinion, we conclude that the
AFCCA did not abuse its discretion in conducting its re-
view under Article 66(d), UCMJ.1 We therefore affirm the
decision of the AFCCA.
I. Background
In the fall of 2020, Appellant was dating Staff Sergeant
E.F. On multiple occasions, Appellant agreed to watch Ser-
geant E.F.’s two-year-old son, J.F. On November 25, 2020,
Appellant struck J.F. on the head and face using his hand.
Later that same day, he struck J.F. on the head and face
with a spatula. When these incidents led to an investiga-
tion, Appellant falsely told a senior noncommissioned of-
ficer, “I wasn’t even there.”
A military judge sitting as a general court-martial sub-
sequently found Appellant guilty, consistent with his pleas,
of one specification of making a false official statement and
two specifications of assault consummated by a battery in
violation of Articles 107 and 128, UCMJ, 10 U.S.C. §§ 907,
928 (2018). The military judge sentenced Appellant to
twelve months of confinement for the false official
1 We did not grant review of the question as to whether the
AFCCA abused its discretion when it affirmed the sentence in
this case. However, we find it necessary to address this issue in
answering the granted question.
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
statement and six months of confinement for each of the
two specifications of assault consummated by a battery.
The military judge specified that the terms of confinement
would run concurrently. The military judge also sentenced
Appellant to a reduction to the grade of E-1, forfeiture of
all pay and allowances for twelve months, and a bad-con-
duct discharge.
The AFCCA affirmed the findings and sentence in an
unpublished opinion. United States v. Flores, No. ACM
40294, 2023 CCA LEXIS 165, at *18, 2023 WL 2921389, at
*6-7 (A.F. Ct. Crim. App. Apr. 13, 2023) (unpublished). The
AFCCA addressed its review of the appropriateness of Ap-
pellant’s sentence under Article 66(d), UCMJ, as follows:
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 re-
view a case for sentence appropriateness “reflects
the unique history and attributes of the military
justice system, [and] 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 omit-
ted). 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 rec-
ord. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We
assess sentence appropriateness by considering
the particular appellant, the nature and serious-
ness of the offense, the appellant’s record of ser-
vice, 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 de-
termine whether a sentence is appropriate, we
have no power to grant mercy. United States v. Ne-
rad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation
omitted).
....
The maximum punishment Appellant could
have received for the crimes with which he was
convicted was a dishonorable discharge, three
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
years’ confinement, forfeiture of all pay and allow-
ances, reduction to E-1, and a reprimand. The plea
agreement stated the minimum and maximum
punishments for each charge and specification.
For the false official statement, the minimum
punishment was six months’ confinement and a
bad[-]conduct discharge, while the maximum pun-
ishment was three years’ confinement and a dis-
honorable discharge. The military judge sen-
tenced Appellant to a bad-conduct discharge,
confinement for 12 months, total forfeiture of pay
and allowances for 12 months, and reduction to
the grade of E-1.
Appellant argues the sentence imposed by the
military judge was inappropriately severe because
“[a]t the time of the false official statement, [he]
was suffering from adjustment disorder mixed
with anxiety and depressed mood.” Moreover, he
“demonstrated significant rehabilitation poten-
tial” as evidenced by the statements of those who
interacted with Appellant regularly and specifi-
cally, every day on deployment. One such individ-
ual described Appellant as someone who could
“[m]ost definitely” bounce back in the future.
While we agree there were mitigating circum-
stances and evidence of rehabilitative potential,
we do not agree that Appellant’s adjudged sen-
tence was inappropriately severe.
The circumstances surrounding the assault
consummated by a battery and underlying the
false official statement are aggravating. Appel-
lant was reluctant to admit that he struck JF on
the head and face because JF had spilled coffee
grounds. The fact JF was a helpless two-year-old
child who could not express for himself what he
had endured compounds Appellant’s actions.
Then, in light of the anguish JF was exhibiting,
Appellant chose to minimize the assault—leaving
EF to rely on a friend’s advice instead of arming
her with a full, accurate, and timely disclosure of
the events so that she could decipher JF’s symp-
toms and make well-informed medical decisions
for her toddler as quickly as possible. When Ap-
pellant told [his senior noncommissioned officer],
that he “wasn’t even there,” he continued to
4
United States v. Flores, No. 23-0198/AF
Opinion of the Court
attempt to escape responsibility for his actions. It
was proper to consider the totality of the circum-
stances and Appellant’s rehabilitation potential in
determining an appropriate sentence for the false
official statement and an appropriate sentence for
crimes of which Appellant was convicted.
We have conducted a thorough review of Ap-
pellant’s entire court-martial record, including
Appellant himself, the nature and seriousness of
the offenses, Appellant’s record of service, and all
matters contained in the record of trial. We con-
clude that the nature and seriousness of the of-
fenses support the adjudged sentence. Under-
standing we have a statutory responsibility to
affirm only so much of the sentence that is correct
and should be approved, Article 66(d), UCMJ, we
conclude that the sentence is not inappropriately
severe, and we affirm the sentence adjudged and
as entered by the military judge.
2023 CCA LEXIS 165, at *15-18, 2023 WL 2921389, at *6
(first, fourth, fifth, and sixth alterations in original).
On appeal, Appellant contends that the AFCCA erred
in how it reviewed the appropriateness of his sentence be-
cause “[t]he AFCCA’s analysis bypassed the fundamental
importance of segmented sentencing, effectively perform-
ing review as though the sentence were unitary.” The Gov-
ernment responds that “a careful analysis of [the AFCCA’s]
opinion shows that [the] AFCCA did consider each seg-
mented sentence.” To resolve this dispute, we must decide
whether Article 66(d), UCMJ, requires a CCA to review the
appropriateness of each segment of a segmented sentence
and, if so, whether the AFCCA abused its discretion.
II. Sentence Appropriateness Review
A. Standard of Review
To answer the granted question, we must interpret Ar-
ticle 66(d), UCMJ. “This Court reviews matters of statutory
interpretation de novo.” United States v. Hiser, 82 M.J. 60,
64 (C.A.A.F. 2022).
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
B. Discussion
When Congress first enacted the UCMJ, courts-martial
adjudged only one sentence even if they found the accused
guilty of multiple offenses. Describing this former rule, the
United States Supreme Court explained in Jackson v. Tay-
lor, 353 U.S. 569, 570 n.1 (1957): “This [single] sentence is
known as an ‘aggregate’ or ‘gross’ sentence. A court-martial
may not impose separate sentences for each finding of
guilt, but may impose only a single, unitary sentence cov-
ering all of the guilty findings in their entirety, no matter
how many such findings there may be.” This rule applied
until only a few years ago. Rule for Courts-Martial (R.C.M.)
1002(b) (2016 ed.), for example, stated:
(b) Unitary Sentencing. Sentencing by a court-
martial is unitary. The court-martial will adjudge
a single sentence for all the offenses of which the
accused was found guilty. A court-martial may not
impose separate sentences for each finding of
guilty, but may impose only a single, unitary
sentence covering all of the guilty findings in their
entirety.
However, in the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, § 5301, 130 Stat.
2000, 2919-20 (2016), Congress amended Article 56,
UCMJ, 10 U.S.C. § 856 (Supp. III 2013-2016) generally,
and added Article 56(c)(2), UCMJ, to eliminate unitary
sentencing in cases in which a military judge alone sen-
tences the accused to a fine or confinement for more than
one offense. In such cases, the military judge must now
specify the fine or confinement for each offense. Article
56(c)(2), UCMJ, thus replaced unitary sentences with what
might be called “segmented” sentences. Article 56(c)(2),
UCMJ, as codified, now provides:
(2) Sentencing By Military Judge.—In announc-
ing the sentence in a general or special court-mar-
tial in which the accused is sentenced by a mili-
tary judge alone under section 853 of this title
(article 53), the military judge shall, with respect
to each offense of which the accused is found
guilty, specify the term of confinement, if any, and
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
the amount of the fine, if any. If the accused is
sentenced to confinement for more than one of-
fense, the military judge shall specify whether the
terms of confinement are to run consecutively or
concurrently.
10 U.S.C. § 856(c)(2) (2018).2
The introduction of segmented sentences raises a ques-
tion about how the CCAs must conduct their appellate re-
view of segmented sentences. Article 66(d)(1), UCMJ, pro-
vides that a CCA “may affirm only . . . the sentence or such
part or amount of the sentence, as the Court finds correct
in law and fact and determines, on the basis of the entire
record, should be approved.” This Court previously inter-
preted these words to mean that a CCA “must determine
whether it finds the sentence to be appropriate.” United
States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (emphasis
added).
The granted question in this case asks whether a CCA
must now consider the appropriateness of each segment of
a segmented sentence in conducting sentence appropriate-
ness review. The parties do not dispute the answer to this
question; Appellant and the Government agree that Article
66(d), UCMJ, requires a CCA to determine the appropri-
ateness of each segmented part of the sentence. Although
we are not bound by the parties’ interpretation of a statu-
tory provision, see Grove City College v. Bell, 465 U.S. 555,
562 n.10 (1984) (noting that a “concession [about a question
of law], of course, is not binding . . . and does not fore-
close . . . review”), our analysis of Article 66(d), UCMJ,
leads us to agree with Appellant and the Government. We
hold that a CCA must consider the appropriateness of each
segment of a segmented sentence.
2 Congress made further amendments to Article 56, UCMJ,
in National Defense Authorization Act for Fiscal Year 2022, Pub.
L. No. 117-81, § 539E(c), 135 Stat. 1541, 1701-02 (2021). The ad-
ditional amendments, however, were not in effect at the time of
this case.
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
Our reasoning on this issue begins with the recognition
that courts-martial are authorized to adjudge a variety of
punishments. In appropriate cases, and subject to various
limitations, these authorized punishments may include a
reprimand, a forfeiture of pay and allowances, a fine, a re-
duction in pay grade, a restriction to specified limits, hard
labor without confinement, confinement, a punitive sepa-
ration, death, and punishment under the law of war.
R.C.M. 1003(b)(1)-(10). Courts-martial frequently include
more than one of these authorized punishments in the ad-
judged sentence. In this case, for example, the military
judge sentenced Appellant to a punitive discharge, a forfei-
ture of pay and allowances, and three periods of confine-
ment to run concurrently.
Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1) (2018),
provides that the CCA “may affirm only . . . the sentence or
such part or amount of the sentence, as the Court
finds . . . should be approved.” (Emphasis added.) This
Court has understood the words “such part or such amount
of the sentence” to require a CCA to review the appropri-
ateness of each punishment in the adjudged sentence.
United States v. Jessie, 79 M.J. 437, 440 (C.A.A.F. 2020)
(explaining that “a CCA may not affirm any portion of a
sentence that it finds excessive”); United States v. Nerad,
69 M.J. 138, 142 (C.A.A.F. 2010) (explaining that “a CCA
may approve only that part of a sentence that it finds
‘should be approved’ ”). Thus, a CCA may approve the ad-
judged confinement but not the adjudged punitive dis-
charge, or vice versa. See, e.g., United States v. Richardson,
7 M.J. 320, 321-22 (C.M.A. 1979) (affirming the decision of
a Court of Military Review to set aside a bad-conduct dis-
charge but affirming the remainder of the sentence);
United States v. Gay, 75 M.J. 264, 265 (C.A.A.F. 2016) (af-
firming a CCA’s decision to affirm a bad-conduct discharge
while reducing the sentence of confinement).
This background brings us to the issue of adjudged seg-
mented periods of confinement and fines under Article
56(c)(2), UCMJ. Our view on this matter of first impression
is that such segmented punishments are “parts” of the
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
overall sentence. Because Article 66(d), UCMJ, requires a
CCA to review the appropriateness not only of the sentence
but also of each “part or amount of the sentence,” we con-
clude that a CCA must review the appropriateness of each
segmented period of confinement and each segmented
amount of any fine. This conclusion is consistent with the
CCAs’ routine practice of reviewing the appropriateness of
other distinct parts of a sentence, such as a reprimand, a
forfeiture of pay, a punitive discharge, etc. See, e.g., United
States v. Lozoria, No. ACM S32723, 2023 CCA LEXIS 248,
at *8, 2023 WL 3945797, at *3 (A.F. Ct. Crim. App. June
12, 2023) (unpublished) (separately reviewing the appro-
priateness of a reprimand); United States v. Allison, No.
NMCCA 201800251, 2021 CCA LEXIS 605, at *16, 2021
WL 5318253, at *6-7 (N-M. Ct. Crim. App. Nov. 16, 2021)
(unpublished) (separately reviewing the appropriateness of
a forfeiture); United States v. Reaper, No. ARMY 20210230,
2023 CCA LEXIS 304, at *6-7, 2023 WL 4557748, at *2 (A.
Ct. Crim. App. July 14, 2023) (unpublished) (separately re-
viewing the appropriateness of a bad-conduct discharge).
In addition to reviewing the appropriateness of each seg-
ment, the CCAs must also continue to review the appropri-
ateness of the entire sentence. United States v. Sessions, 21
C.M.A. 654, 654, 45 C.M.R. 931, 931 (1972) (order directing
a Court of Military Review to review “the appropriateness
of the sentence as a whole”).
III. Abuse of Discretion
Appellant contends that the AFCCA erred in how it re-
viewed the appropriateness of his sentence. “In reviewing
the exercise of this power, we ask if the CCA abused its
discretion or acted inappropriately—i.e., arbitrarily, capri-
ciously, or unreasonably—as a matter of law.” Nerad, 69
M.J. at 142. This Court’s precedents do not require a CCA
to explain its reasoning when assessing the reasonableness
of a sentence. United States v. Winckelmann, 73 M.J. 11,
16 (C.A.A.F. 2013) (“The Court of Criminal Appeals did not
detail its analysis in this case; nor was it obligated to do
so.”). But if the CCA’s opinion reveals a misunderstanding
of the applicable law, this Court may require a new
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
sentence appropriateness review. Baier, 60 M.J. at 385 (re-
manding a case for a new review of sentence appropriate-
ness when the CCA recited an incorrect standard).
Based on these standards, we affirm the decision of the
AFCCA. The AFCCA’s five-paragraph discussion of sen-
tence appropriateness is quoted above. A review of these
paragraphs reveals that the AFCCA did not express any
incorrect statement of law. In its opinion’s initial para-
graph, the AFCCA addressed several legal principles. Cit-
ing precedents, the AFCCA explained that it must conduct
its review of the appropriateness of sentences de novo; that
sentence appropriateness review strives to promote even-
handedness; that a CCA must consider the seriousness of
the offenses, the appellant’s record, and all other matters
in the record; and that a CCA has no power to grant mercy.
None of the AFCCA’s statements are legally incorrect.
It is true that the AFCCA did not specifically state that
a CCA must review the appropriateness of each segment of
the segmented sentence. But as noted above, this Court
held in Winckelmann that a CCA is not required to detail
its analysis when conducting sentence appropriateness re-
view. 73 M.J. at 16. And in any event, neither Appellant’s
arguments nor the AFCCA’s decision convince us that the
AFCCA acted “arbitrarily, capriciously, or unreasonably.”
Nerad, 69 M.J. at 142.
The AFCCA considered the appropriateness of each seg-
ment of confinement because it looked carefully and fully
at the aggravating evidence pertaining to each of the of-
fenses of which Appellant was found guilty. The AFCCA
began the relevant portion of its discussion on aggravating
evidence by stating: “The circumstances surrounding the
assault consummated by a battery and underlying the false
official statement are aggravating.” Flores, 2023 CCA
LEXIS 165, at *16-17, 2023 WL 2921389, at *6 (emphasis
added). The AFCCA then identified several aggravating
facts that specifically pertained to the assaults and several
aggravating facts that specifically concerned the false offi-
cial statement. With respect to the assaults, the AFCCA
recognized that the victim was “helpless,” the victim was a
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United States v. Flores, No. 23-0198/AF
Opinion of the Court
“two-year-old child,” the victim “exhibit[ed]” “anguish,” and
the victim required medical attention. Id. at *17, 2023 WL
2921389, at *6. With respect to the false official statement,
the AFCCA observed that Appellant’s lie could not be cor-
rected because the victim “could not express for himself
what he had endured.” Id., 2023 WL 2921389, at *6. The
AFCCA further noted that the false official statement was
selfish because “Appellant chose to minimize the assault”
and lied in an “attempt to escape responsibility for his ac-
tions.” Id., 2023 WL 2921389, at *6. In addition, the
AFFCA observed that the false official statement and as-
sault were further aggravated by Appellant’s failure to dis-
close initially that he struck J.F., “leaving [Staff Sergeant]
E.F. to rely on a friend’s advice instead of arming her with
a full, accurate, and timely disclosure of the events so that
she could decipher J.F.’s symptoms and make well-in-
formed medical decisions for her toddler as quickly as pos-
sible.” Id., 2023 WL 2921389, at *6.
Our conclusion that the AFCCA understood that the
case involved segmented sentences and that it reviewed
the segments separately is further established by the
AFCCA’s discussion of two additional matters. First, the
AFCCA explained that the pretrial agreement required
“any sentences of confinement to run concurrently.” Id. at
*6, 2023 WL 2921389, at *3. A requirement that sentences
run concurrently can only exist when there are segmented
sentences. Second, the AFCCA recognized that it had to
consider the maximum period of confinement for each of-
fense, explaining: “The confinement range for Charge I and
its sole specification was six months to three years. The
confinement range for each specification of Charge II was
zero days to six months.” Id., 2023 WL 2921389, at *3.
We recognize that the AFCCA’s discussion of sentence
appropriateness focused more on the segmented sentence
for the false official statement than for the segmented sen-
tences for the assaults. In taking this path, we do not think
the AFCCA acted “arbitrarily, capriciously, or unreasona-
bly.” It was within the AFCCA’s discretion to believe that
more discussion was required for the issue of whether a
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Opinion of the Court
twelve-month sentence for a false official statement was
excessive than the issue of whether two six-month sen-
tences for assaulting the victim were excessive.3
IV. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
3 In his brief before the AFCCA, Appellant himself focused
only on the appropriateness of the twelve-month sentence for his
false official statement.
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United States v. Flores, No. 23-0198/AF
Chief Judge OHLSON, with whom Judge JOHNSON
joins, concurring in part and dissenting in part.
The majority correctly acknowledges that when the
United States Air Force Court of Criminal Appeals
(AFCCA) conducted a sentence appropriateness review in
this case, the lower court was required to separately con-
sider the appropriateness of each segment of the sentence
that was imposed. But curiously, the majority then affirms
the AFCCA’s decision in this case despite the fact that the
lower court never states that it is complying with this re-
quirement, never uses the word “separate,” never uses the
word “segment,” never cites to the statutory provisions re-
quiring such a separate review of each segment of the ad-
judged sentence, and never cites to its own precedents
where such a separate review has been conducted in the
past. 1 In fact, in its opinion the majority downplays the fol-
lowing passage from the AFCCA’s opinion: “We conclude
that the nature and seriousness of the offenses support the
adjudged sentence.” United States v. Flores, No. ACM
40294, 2023 CCA LEXIS 165, at *18, 2023 WL 2921389, at
*6 (A.F. Ct. Crim. App. Apr. 13, 2023) (unpublished). No-
tice that the lower court uses the plural when using the
word “offenses” but uses the singular when referring to the
“sentence.” Id., 2023 WL 2921389, at *6. Was the AFCCA
only conducting a unitary sentence review in this case as
1 Clarity in this area is not unachievable. For example, in
United States v. Alkazahg, a servicemember was convicted of one
specification of fraudulent enlistment, two specifications of mak-
ing a false official statement, and two specifications of pos-
sessing machine guns. 81 M.J. 764, 767 (N-M. Ct. Crim. App.
2021). In its opinion, the United States Navy-Marine Corps
Court of Criminal Appeals clearly delineated each of the seg-
mented sentences and then provided an analysis of the appro-
priateness of each sentence, see id. at 786-88, thereby making it
clear that it had complied with the requirements of Article 66(d),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(d)
(2018).
United States v. Flores, No. 23-0198/AF
Chief Judge OHLSON, concurring in part and dissenting in part
was done in years past? The simple truth is that it is un-
clear from the lower court’s opinion. 2
It is true that the “[Courts of Criminal Appeals (CCAs)]
are presumed to know the law and [to] follow it.” United
States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). However,
this can be a hazardous legal path to tread when, as here,
the CCAs are applying a new statutory provision. We have
entered an era where there are many changes afoot in the
military justice system. Mischief will result if this Court
fails not only to provide crisp, clear guidance to the CCAs
about the practical effects of those changes, but also if it
fails to ensure that the CCAs are scrupulously adhering to
the legal and analytical obligations that those changes
have placed upon them.
Therefore, we should remand this case to provide the
AFCCA with an opportunity to clarify whether it complied
with the legal requirement to consider the appropriateness
of each segment of the imposed sentence. Doing so would
ensure that this Court properly exercises its appellate re-
view authority in this case. Because the majority holds to
the contrary, I respectfully dissent in part.
2 Just last term in United States v. Thompson, this Court re-
manded a case to the AFCCA because the language in its opinion
created “at least an ‘open question’ about whether the court ap-
plied the correct rule.” 83 M.J. 1, 5 (C.A.A.F. 2022) (quoting
United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010)). An
“open question” is what we have here.
2