United States v. Sanchez ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600245
_________________________
UNITED STATES OF AMERICA
Appellee
v.
KENNEDY J. SANCHEZ
Lance Corporal (E-3), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Eugene H. Robinson, Jr., USMC.
For Appellant: Major Jason L. Morris, USMCR.
For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
USN; Lieutenant Robert J. Miller, JAGC, USN.
_________________________
Decided 15 December 2016
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Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
_________________________
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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HUTCHISON, Judge:
A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of one specification of attempted sexual
assault of a child, two specifications of attempted sexual abuse of a child, one
specification of violating a lawful general order,1 and one specification of
indecent exposure in violation of Articles 80, 92, and 120c, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 880, 892, and 920c. The military judge
1 III Marine Expeditionary Force/Marine Corps Installations Pacific Liberty
Regulations in Japan (26 Nov 2014).
United States v. Sanchez, No. 201600245
sentenced the appellant to four years’ confinement, reduction to pay grade E-
1, forfeiture of all pay and allowances, a reprimand, and a dishonorable
discharge. The convening authority (CA) disapproved the reprimand,
approved the remainder of the sentence and, pursuant to a pretrial
agreement , suspended all confinement in excess of 24 months.
In light of our holding in United States v. Uriostegui, No. 201500404, 2016
CCA LEXIS 574, unpublished op. (N-M. Ct. Crim. App. 29 Sep 2016), decided
after the appellant submitted this case for review without assignment of
error, we specified for briefing whether we should reassess the appellant’s
sentence.2
After carefully considering the record of trial, the submissions of the
parties, and our holding in Uriostegui, we find the appellant’s guilty plea to
indecent exposure improvident and take corrective action in our decretal
paragraph. We are convinced that, following our corrective action, the
findings and sentence are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.
I. BACKGROUND
On 28 January 2016, while stationed at Camp Foster, Okinawa, the
appellant began communicating via text message with an individual he
believed to be a 14-year-old girl named “Cris.” In fact, “Cris” was an
undercover Naval Criminal Investigative Services (NCIS) agent. During the
course of their day-long, online conversation, the appellant communicated
indecent language to “Cris” and sent her a digital picture of his exposed
penis. The appellant and “Cris” also discussed meeting to have sex. After
completing his assigned duties, the appellant left Camp Foster without
authority, and traveled to a house on Kadena Air Base, Okinawa, where he
intended to have sex with “Cris.” The appellant’s conviction for indecent
exposure resulted from his texting a digital image of his exposed penis to the
undercover NCIS agent. This conduct also formed the basis for his conviction
of one of the attempted sexual abuse of a child specifications.
II. DISCUSSION
We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or
fact for questioning the plea.” United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014) (citation omitted). In Uriostegui, we held that the crime of
2 IN CONSIDERATION OF OUR HOLDING IN UNITED STATES V.
URIOSTEGUI ___ M.J. ___ (N-M. CT. CRIM. APP. 29 SEP 2016), SHOULD THE
COURT REASSESS THE SENTENCE?
2
United States v. Sanchez, No. 201600245
indecent exposure in Article 120c, UCMJ, did not encompass the electronic
transmission of a photograph or digital image of one’s genitalia to another
person.3 Consistent with that holding, we find a substantial basis in law to
question the appellant’s plea to indecent exposure. Beyond the acceptance of
the plea, we also find that the appellant’s actions would be legally insufficient
to support an indecent exposure conviction if a rehearing was authorized.
Uriostegui, 2016 CCA LEXIS 574 at *22-23. As a result, we set aside the
conviction for violation of Article 120c, UCMJ, and “consider the need for
sentence reassessment.” Id. at *23.
Courts of Criminal Appeals can often “modify sentences ‘more
expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs
“act with broad discretion when reassessing sentences.” Id.
Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence “would have been at least of a
certain magnitude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986).
We base these determinations on the totality of the circumstances of each
case, guided by the following “illustrative, but not dispositive, points of
analysis”:
(1) Whether there has been a dramatic change in the penalty
landscape or exposure.
(2) Whether sentencing was by members or a military judge
alone.
(3) Whether the nature of the remaining offenses captures the
gravamen of criminal conduct included within the original
offenses and whether significant or aggravating circumstances
addressed at the court-martial remain admissible and relevant
to the remaining offenses.
(4) Whether the remaining offenses are of the type with which
appellate judges should have the experience and familiarity to
reliably determine what sentence would have been imposed at
trial.
3 We decline the government’s invitation to reverse our ruling in Uriostegui. See
Answer on Behalf of Appellee of 30 Nov 16 at 5 (arguing that the “opinion is inchoate,
is subject to further appeal, and reaches an incorrect holding”).
3
United States v. Sanchez, No. 201600245
Winckelmann, 73 M.J. at 15-16.
Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, the penalty
landscape has not changed dramatically. The maximum punishment for
indecent exposure is 12 months confinement and a dishonorable discharge.
Setting aside the indecent exposure conviction only reduces the appellant’s
maximum punishment from 53 years to 52 years. Second, the appellant
elected to be sentenced by a military judge, and we are more likely to be
certain of what sentence the military judge, as opposed to members, would
have imposed. Third, we have extensive experience and familiarity with the
remaining offenses, as none presents a novel issue in aggravation. Finally,
the remaining offenses capture the gravamen of the criminal conduct at
issue, and all of the evidence remains admissible. Indeed, the appellant’s
conviction for one of the two specifications of attempted sexual abuse of a
child relied on the same facts used to convict him of indecent exposure.4
Although charged as both attempted sexual abuse of a child and as indecent
exposure, in effect, the military judge sentenced the appellant based on
evidence of a single incident of the appellant e-mailing a picture of his
genitalia.
Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the military judge would have sentenced the appellant
to at least confinement for four years, reduction to pay grade E-1, forfeiture of
all pay and allowances, and a dishonorable discharge. We also conclude that
the adjudged sentence is an appropriate punishment for the modified offenses
and this offender—thus satisfying the Sales requirement that the reassessed
sentence is not only purged of error, but also appropriate. Sales, 22 M.J. at
308.
III. CONCLUSION
The guilty findings to Charge III and its sole specification are set aside.
The remaining guilty findings and the sentence, as approved by the CA, are
affirmed.
Senior Judge CAMPBELL and Judge RUGH concur.
For the Court
R.H. TROIDL
Clerk of Court
4 Specification 2 of Charge I alleges that the appellant attempted sexual abuse of
a child “by committing a lewd act, to wit: intentionally exposing his genitalia with the
intent to arouse or gratify the sexual desire of a person.” Charge Sheet.
4