United States v. Carchio ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.R. MCFARLANE, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JASON J. CARCHIO
QUARTERMASTER THIRD CLASS (E-4), U.S. NAVY
NMCAA 201400117
GENERAL COURT MARTIAL
Sentence Adjudged: 12 December 2014
Military Judge: CAPT Robert B. Blazewick, JAGC, USN
Convening Authority: Commander, Naval Regional Southeast, Naval
Air Station Jacksonville, Florida
Staff Judge Advocate’s Recommendation: CDR N.O. Evans, JAGC,
USN.
For Appellant: Capt David A. Peters, USMC
For Appellee: LT James M. Belforti, JAGC, USN
11 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCAA RULE OF PRACTICE AND PROCEDURE 18.2
PER CURIAM:
A military judge sitting as general court-martial convicted
the appellant, in accordance with his pleas of two
specifications of failing to obey a lawful general regulation,
one specification of communicating indecent language to a child
under the age of 16 years, wrongfully soliciting a child under
the age of 16 years to take and distribute sexually explicit
photos of herself, two specifications of possessing child
pornography, and one specification of distributing child
pornography, in violation of Articles 92 and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 892 and 934. The appellant
was sentenced to confinement for 30 months, reduction to pay
grade E-1, a $5,000.00 fine, and a dishonorable discharge. In
accordance with a pretrial agreement, the convening authority
approved a bad-conduct discharge, instead of the dishonorable
discharge, and the remainder of the adjudged sentence.
In his sole assignment of error, the appellant contends
that the imposition of a fine in his case was inappropriate.
After carefully considering the appellant’s assignment of error,
the record of trial, and the pleadings of the parties, we
conclude that the findings and sentence are correct in law and
fact, and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
The appellant argues that because he was not unjustly
enriched by the offenses to which he pled guilty, the adjudged
fine of $5,000.00 was inappropriate. In the alternative, the
appellant avers that the imposition of a fine is inappropriately
severe.
“[A] court-martial is free to impose any legal sentence
that it determines appropriate.” United States v. Dedert, 54
M.J. 904, 909 (N.M.Ct.Crim.App. 2001) (citations and internal
quotation marks omitted). Fines may be imposed even in the
absence of unjust enrichment. United States v. Stebbins, 61
M.J. 366, 372 (C.A.A.F. 2005).
We review sentence appropriateness de novo. United States
v. Lane, 64 M.J. 1,2 (C.A.A.F. 2006). Additionally, we have a
duty under Article 66(c), UCMJ, to independently review the
sentence within our jurisdiction and approve only that part of
the sentence which we find should be approved. United States v.
Baier, 60 M.J. 382, 384 (C.A.A.F. 2005). Our determination of
sentence appropriateness under Article 66(c), UCMJ, requires us
to analyze the record as a whole to ensure that justice is done
and that the accused receives the punishment he deserves.
United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). In
making this assessment we consider the nature and seriousness of
the offenses as well as the character of the offender. United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).
The appellant’s misconduct included using a Government
computer to access sexually explicit images. Additionally, the
appellant admitted to using a Government computer to communicate
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sexually explicit language to TM, a minor child under the age of
16, and soliciting her to take sexually explicit photos of
herself and send them to him via the Internet using his Navy
email account. He also admitted, on divers occasions, to
distributing child pornography, via the Internet, while onboard
USS HALYBURTON (FFG 40) and possessing child pornography on a CD
and on his personal laptop computer.
We have given due consideration to the appellant’s record
of service and the nature of his offenses, and conclude that the
approved sentence is legal and appropriate under the
circumstances. To grant relief at this point would be engaging
in an act of clemency, a prerogative reserved for the convening
authority. Healy, 26 M.J. at 395-96 (C.M.A. 1988).
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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