United States v. Gomez ( 2015 )


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  •               UNITED STATES NAVY-MARINE CORPS
    COURT OF CRIMINAL APPEALS
    WASHINGTON, D.C.
    Before
    J.A. FISCHER, D.C. KING, T.H. CAMPBELL
    Appellate Military Judges
    UNITED STATES OF AMERICA
    v.
    HOWARD GOMEZ
    CORPORAL (E-4), U.S. MARINE CORPS
    NMCCA 201500195
    GENERAL COURT-MARTIAL
    Sentence Adjudged: 19 March 2015.
    Military Judge: Maj M.D. Libretto, USMC.
    Convening Authority: Commanding General, 2d Marine
    Division, Camp Lejeune, NC.
    Staff Judge Advocate's Recommendation: LtCol K.S. Woodard,
    USMC.
    For Appellant: CDR Sabatino F. Leo, JAGC, USN.
    For Appellee: Capt Diane L. Karr, JAGC, USN; LCDR Justin C.
    Henderson, JAGC, USN; Maj Suzanne Dempsey, USMC.
    10 November 2015
    ---------------------------------------------------
    OPINION OF THE COURT
    ---------------------------------------------------
    THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
    PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
    PER CURIAM:
    A general court-martial composed of a military judge
    convicted the appellant, pursuant to his pleas, of one
    specification of conspiracy, three specifications of wrongful
    disposition of military property, one specification of larceny
    of military property, and one specification of housebreaking, in
    violation of Articles 81, 108, 121, and 130 Uniform Code of
    Military Justice, 10 U.S.C. §§ 881, 908, 921, and 930. The
    military judge sentenced the appellant to fifty-four months of
    confinement, reduction to pay grade E-1, a $30,000.00 fine, and
    a dishonorable discharge. The convening authority (CA) approved
    the sentence as adjudged, but suspended all confinement in
    excess of four years for the period of confinement served plus
    six months thereafter, in accordance with the pretrial agreement
    (PTA).
    The appellant now raises two assignments of error. First,
    the appellant asserts that his sentence is disparately severe
    when compared to the sentence of one of his co-conspirators.
    Second, the appellant asserts the court-martial promulgating
    order does not accurately reflect his charges and pleas.
    Finding merit in his second assignment of error, we order
    corrective action in our decretal paragraph. We conclude the
    findings and the sentence are correct in law and fact, and that
    no error materially prejudicial to the substantial rights of the
    appellant occurred. Arts. 59(a) and 66(c), UCMJ.
    Background
    In the summer of 2014, three Marines -- the appellant,
    Lance Corporal (LCpl) Roberts and Private First Class (PFC)
    Smith -- conspired to steal military equipment from the 2D
    Marine Special Operations Battalion (2D MSOB) supply warehouse
    at Camp Lejeune, North Carolina. The object of the conspiracy
    was to sell the equipment to civilians for profit and each
    member of the conspiracy had a unique role.
    The appellant and PFC Smith were warehouse clerks at the 2D
    Reconnaissance Battalion warehouse, when the appellant
    discovered that PFC Smith was stealing and selling military
    equipment. The appellant then crafted a plan and told PFC Smith
    “that [he] had someone working [2D MSOB] in the supply warehouse
    that would be willing to steal gear and give [it] to [PFC Smith]
    to sell[.]”1 The appellant’s contact in the 2D MSOB warehouse
    was LCpl Roberts, his former roommate. Following his discussion
    with PFC Smith, the appellant introduced LCpl Roberts and PFC
    Smith to each other.
    Together the three Marines decided they would steal
    equipment from the 2D MSOB warehouse, sell it, and split the
    proceeds. The appellant assumed responsibility for coordinating
    1
    Prosecution Exhibit 7 at 1.
    2
    the conspiracy internally and facilitating communication on what
    items to steal. He coordinated with his co-conspirators on
    pick-up times and locations, and ensured LCpl Roberts received
    payment for his part in the operation. The appellant received
    approximately $30,000.00 for his contributions to the
    conspiracy.
    LCpl Roberts received approximately $20,000.00 for stealing
    the military equipment from the 2D MSOB warehouse and giving it
    to PFC Smith. PFC Smith received approximately $30,000.00 for
    storing the stolen property at his residence, locating buyers,
    and executing the sales transaction.
    The appellant and LCpl Roberts were charged at separate
    courts-marital convened by different CAs and presided over by
    different military judges.2 A military judge sentenced LCpl
    Roberts to reduction to pay grade E-1, total forfeiture of pay
    and allowances, confinement for thirty-six months, and a
    dishonorable discharge.3 The terms of LCpl Roberts’ PTA,
    however, suspended six months of his confinement, reducing his
    unsuspended amount of confinement to thirty months.
    Sentence Disparity
    The appellant now argues that his case is disparately
    severe when compared to LCpl Roberts’ sentence. He requests
    that we set aside his $30,000.00 fine and affirm only 30 months
    of the approved confinement, which would result in a sentence
    more closely aligned with that of LCpl Roberts. We decline to
    do so.
    We “may affirm only such findings of guilty and the
    sentence or such part or amount of the sentence, as [we find]
    correct in law and fact and determine[], on the basis of the
    entire record, should be approved.” Art. 66(c), UCMJ. Sentence
    appropriateness is reviewed de novo, United States v. Lane, 
    64 M.J. 1
    , 2 (C.A.A.F. 2006), and involves the judicial function of
    assuring that justice is done and that the appellant gets the
    punishment he deserves, United States v. Healy, 
    26 M.J. 394
    , 395
    (C.M.A. 1988). As part of that review, we give “‘individualized
    consideration’ of the particular appellant ‘on the basis of the
    2
    The record does not indicate what sentence was approved by the CA in LCpl
    Roberts’ case.
    3
    The record does not inform us as to the fate of PFC Smith, but indicates
    that civilian authorities were investigating him for his role in the
    conspiracy.
    3
    nature and seriousness of the offense and the character of the
    offender,’” United States v. Snelling, 
    14 M.J. 267
    , 268 (C.M.A.
    1982) (additional quotations omitted), which generally should be
    determined without reference or comparison to sentences in other
    cases, United States v. Ballard, 
    20 M.J. 282
    , 283 (C.M.A. 1985).
    We are not required to engage in comparison of specific cases
    “‘except in those rare instances in which sentence
    appropriateness can be fairly determined only by reference to
    disparate sentences adjudged in closely related cases.’” United
    States v. Lacy, 
    50 M.J. 286
    , 288 (C.A.A.F. 1999) (quoting
    
    Ballard, 20 M.J. at 283
    ) (additional citation omitted).
    Although we are accorded great discretion in determining whether
    a particular sentence is appropriate, we are not authorized to
    engage in exercises of clemency. United States v. Nerad, 
    69 M.J. 138
    , 146 (C.A.A.F. 2010).
    When seeking relief for a disparately severe sentence, the
    appellant “bears the burden of demonstrating that any cited
    cases are ‘closely-related’ to his or her case and that the
    sentences are ‘highly disparate.’” 
    Lacy, 50 M.J. at 288
    . If
    the appellant shows both that his case is “closely related” and
    his sentence is “highly disparate,” then the burden shifts to
    the Government to show there is “a rational basis for the
    disparity.” Id.; see also, United States v. Durant, 
    55 M.J. 258
    , 262-63 (C.A.A.F. 2001). Cases are “closely related” when
    they “involve offenses that are similar in both nature and
    seriousness or which arise from a common scheme or design,”
    United States v. Kelly, 
    40 M.J. 558
    , 570 (N.M.Ct.Crim.App.
    1994). This includes “co-actors involved in a common crime . .
    . [or] servicemembers involved in a common or parallel scheme.”
    
    Lacy, 50 M.J. at 288
    .
    The appellant and LCpl Roberts were co-conspirators. They
    participated in a conspiracy to carry out a common crime --
    stealing military equipment from the 2D MSOB warehouse and
    selling it to civilians. They each assumed different roles, but
    played an active part in the conspiracy, and both profited from
    their contributions to the conspiracy. And while the record
    does not include LCpl Roberts’ charges, it does show that both
    LCpl Roberts and the appellant were convicted at general courts-
    martial. Therefore, we find the appellant’s case is closely
    related to LCpl Roberts’ case.
    We also find the appellant has demonstrated that his
    sentence is highly disparate when compared to that of LCpl
    Roberts. Recognizing there will be some disparity amongst
    sentences in the military justice system, a disparity between
    4
    sentences in closely related cases is considered “highly
    disparate” and may warrant relief if the disparity so great as
    to “exceed relative uniformity or when it rises to the level of
    an obvious miscarriage of justice or an abuse of discretion.”
    United States v. Swan, 
    43 M.J. 788
    , 792 (N.M.Ct.Crim.App. 1995))
    (internal quotations and citation omitted). The disparity
    between LCpl Roberts’ sentence and the appellant’s sentence
    exceeds relative uniformity. LCpl Roberts and the appellant
    both pleaded guilty at a general court-martial. They entered
    into PTAs with different CAs, and different military judges
    adjudged their sentences. It appears the appellant received 18
    more months of confinement than LCpl Roberts, as well as a
    $30,000.00 fine, an amount equal to his unjust enrichment from
    the conspiracy. In contrast, LCpl Roberts was not fined,
    despite receiving $20,000.00 from the conspiracy. And while the
    appellant did not receive an adjudged forfeiture like LCpl
    Roberts, the confinement and punitive discharges in both cases
    triggered automatic forfeitures under Article 58b, UCMJ.
    The Government cites United States v. Taylor, No.
    201300195, 2014 CCA LEXIS 150, unpublished op. (N.M.Ct.Crim.App.
    6 Mar 2014), rev. denied, 
    73 M.J. 285
    (C.A.A.F. 2014), as
    persuasive authority to support their position that the
    appellant’s sentence is not highly disparate when compared to
    LCpl Roberts’ sentence.   However, the sentence disparity in the
    appellant’s case is significantly more severe that the sentence
    disparity in Taylor. The appellant in Taylor was fined
    $17,000.00 (equal to his unjust enrichment) and his co-
    conspirator was fined $11,000.00 (half of the amount of his
    unjust enrichment). 
    Id. at 5-6.
    This is a difference of $6,000
    and a fifty percent difference when comparing the relative
    amounts of their unjust enrichment. Here, there is a $30,000.00
    difference in fines and a one-hundred percent difference in
    unjust enrichment amounts. Furthermore, in Taylor the co-
    conspirator’s “sentence was slightly more severe than the
    appellant’s in terms of confinement.” 
    Id. at 6.
    Here, in
    addition to receiving no fine, LCpl Roberts also received 18
    months less confinement than did the appellant. Mindful that
    co-conspirators are not entitled to equal sentences, 
    Durant, 55 M.J. at 260
    , we nonetheless find appellant’s sentence is highly
    disparate when compared to LCpl Roberts’ sentence.
    We next consider whether the Government has met its burden
    to show a rational basis for the disparity and find that it has.
    The appellant was the only noncommissioned officer and the
    senior member of the conspiracy. Moreover, he recognized the
    opportunity to steal equipment from the 2D MSOB warehouse,
    5
    concocted the criminal plan and brought junior Marines together
    in order to turn that plan into reality. Furthermore, all
    communications between LCpl Roberts (the supplier) and PFC Smith
    (the seller) went through the appellant, who, in turn was
    responsible for ensuring LCpl Roberts was paid a share of the
    profits. And while the appellant relied upon his junior Marines
    to steal, store, and sell the military equipment, he never
    relinquished his role as the central point of coordination,
    collecting $10,000.00 more than LCpl Roberts as a result. These
    reasons constitute a rational basis for the sentence disparity.
    Cf. United States v. Odom, 2015 CCA LEXIS 361 at *6-7,
    unpublished op. (N.M.Ct.Crim.App. 31 Aug 2015) (per curiam)
    (finding a rational basis for the sentence disparity when the
    senior Marine received a more severe sentence than his co-
    conspirators).
    Court-Martial Promulgating Order
    Although Charge I originally contained three specifications
    of conspiracy, the military judge consolidated them into one, to
    which the appellant then pleaded guilty. The promulgating order
    fails to reflect that consolidation and single plea. This was
    error, but harmless. The appellant, however, is entitled to a
    promulgating order that correctly reflects the results of his
    proceeding. United States v. Crumpley, 
    49 M.J. 538
    , 539
    (N.M.Ct.Crim.App. 1998).
    Conclusion
    The findings and the sentence are affirmed. The
    supplemental court-martial promulgating order shall accurately
    reflect the consolidation of the specifications under Charge I
    and the appellant’s plea thereto.
    For the Court
    R.H. TROIDL
    Clerk of Court
    6
    

Document Info

Docket Number: 201500195

Filed Date: 11/10/2015

Precedential Status: Precedential

Modified Date: 11/13/2015