United States v. McCLENDON ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700262
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UNITED STATES OF AMERICA
Appellee
v.
JASMINE N. MCCLENDON
Aviation Structural Mechanic Airman (E-3),
U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, California.
Staff Judge Advocate’s Recommendation : Captain Donald C. King,
JAGC, USN.
For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Kimberly Y.
Rios, JAGC, USN.
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Decided 26 February 2018
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Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
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This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
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PER CURIAM:
A military judge sitting as a general court-martial convicted the
appellant, pursuant to her pleas, of one specification of conspiracy, one
specification of violating a lawful order, one specification of violating a lawful
general order, five specifications of wrongfully using controlled substances,
and five specifications of wrongfully introducing a controlled substance
onboard an installation with the intent to distribute, in violation of Articles
United States v. McClendon, No. 201700262
81, 92, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881,
892, and 912a. The military judge sentenced the appellant to reduction to pay
grade E-1, three years’ confinement, forfeiture of all pay and allowances, and
a dishonorable discharge. In accordance with a pretrial agreement, the
convening authority approved the sentence as adjudged, but suspended
confinement in excess of 14 months.
In her sole assignment of error, the appellant contends that her sentence
to a dishonorable discharge is inappropriately severe considering her mental
health history, prior service, rehabilitation efforts while in confinement, and
willingness to cooperate with the Naval Criminal Investigative Service. The
appellant requests that we approve only a bad-conduct discharge.
After careful consideration of the record of trial and the parties’
pleadings, we are satisfied that the findings and 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).
I. BACKGROUND
In December 2016, the appellant was awarded 60 days’ restriction
following Article 15, UCMJ, punishment for wrongful use of cocaine. During
this period of restriction, the appellant committed the offenses for which she
pleaded guilty at court-martial. Specifically, the appellant admitted to
possessing drug paraphernalia (vaporizer pen), conspiring to introduce
controlled substances onto the installation, and introducing and using
cocaine, methamphetamine, psilocybin mushrooms, lysergic acid
diethylamide (LSD), and tetrahydrocannabinol (THC). The appellant also
admitted that she wrongfully used her cell phone—which she was prohibited
from using while on restriction—to facilitate the purchase and delivery of
these controlled substances onto a military installation.
During the presentencing hearing, the appellant presented evidence in
extenuation and mitigation through a lengthy unsworn statement.1 In her
statement, she discussed her difficult upbringing, being sexually abused as a
minor, her enlistment at age 17 as a solution to running away, and her
mental, emotional, and relational challenges since enlisting. The appellant
explained that “Coming to the brig was definitely the best thing that’s ever
happened to me.”2 She began to study Buddhism, take drug addiction classes,
and had maintained her sobriety for 127days prior to her trial.
1 Record of trial at 129-146.
2 Id. at 139.
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United States v. McClendon, No. 201700262
II. DISCUSSION
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused gets the
punishment [s]he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires our “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. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted). In making this
assessment, we analyze the record as a whole. Healy, 26 M.J. at 395. Despite
our significant discretion in determining sentence appropriateness, we must
remain mindful that we may not engage in acts of clemency. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
The appellant asserts that a dishonorable discharge is inappropriately
severe. We disagree.
The appellant admitted to using various forms of illegal drugs on multiple
occasions while on restriction for a previous drug use. Furthermore, she
conspired with other Sailors to purchase multiple drugs, bring those drugs
onto a military installation to the restriction barracks, in order to distribute
them, all while violating a lawful order not to possess a cell-phone. Her
offenses are serious—the maximum sentence the appellant could have been
adjudged based on the crimes for which she was found guilty included more
than 117 years of confinement and a dishonorable discharge. Her brazen
misconduct while on restriction, her inclusion of other Sailors in her crimes,
and her intent to distribute drugs to other Sailors far outweigh her
extenuating and mitigating circumstances.
Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s limited record of service, and all other
matters contained in the record of trial, we conclude the sentence is not
inappropriately severe and is appropriate for this offender and her offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. Granting sentence relief at this point would
be to engage in clemency, which we decline to do. Healy, 26 M.J. at 395-96.
III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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