United States v. Aguilar ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, B.T. PALMER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ALEXANDER AGUILAR
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201500036
SPECIAL COURT-MARTIAL
Sentence Adjudged: 16 October 2014.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding Officer, Headquarters and
Support Battalion, Marine Corps Installations West, Marine
Corps Base, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: CDR Sabatino F. Leo, JAGC, USN.
For Appellee: CAPT Ross Leuning, JAGC, USN; LT Ann Dingle,
JAGC, USN.
27 August 2015
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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 NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of larceny and one specification of unauthorized
absence, in violation of Articles 86 and 121, Uniform of
Military Justice, 10 U.S.C. §§ 886 and 921. The military judge
sentence the appellant to 180 days’ confinement, reduction to
pay grade E-1, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged and, except for
the punitive discharge, ordered the sentence executed. In
accordance with a pretrial agreement, the CA suspended all
confinement in excess of 60 days.
On appeal, the appellant alleges that his sentence is
inappropriately severe given the nonviolent nature of his crimes
and his honorable service.
After carefully considering the record of trial, the
appellant's assignment of error, 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.
Background
In October 2013, the appellant drove to a range on Camp
Pendleton, CA, and ordered two Marine students from the School
of Infantry who were standing fire watch to load thirty cases of
Meals-Ready-to-Eat (MREs) into his truck. The appellant loaded
an additional ten cases of MREs into his truck. The appellant
had previously been an instructor at the school and knew there
would be a week’s worth of MREs stored at that range for an
incoming class. The appellant then left with the MREs and sold
them that same day to a civilian for $800. In June 2013, the
appellant had received nonjudicial punishment for similarly
stealing and selling MREs.
The day after stealing the MREs the appellant was
questioned by investigators from the Criminal Investigations
Division (CID) on Camp Pendleton and confessed to stealing and
selling the MREs. Upon being released by CID, the appellant
drove to Kansas where he found a job and remained until 15
August 2014, when he was apprehended by local police based on a
federal warrant for his unauthorized absence (UA).
In his unsworn statement, the appellant detailed multiple
traumatic events he experienced during three combat deployments
to Afghanistan and Iraq which resulted in his diagnosis for
post-traumatic stress disorder (PTSD) in 2007. 1 The appellant
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During the providence inquiry the military judge inquired into the
appellant’s PTSD and the medications he was taking for depression, anxiety,
and sleep disorder. The appellant fully acknowledged that his PTSD did not
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further explained that he stole and sold the MREs because he was
experiencing financial hardship due to his divorce and child
support payments, and was receiving less pay as a result of his
reduction to Corporal following his nonjudicial punishment in
June 2013. The appellant also stated that he went UA after he
was questioned by CID because he was too embarrassed to face
another reduction in rank while being around students that he
had instructed as a combat instructor.
Sentence Severity
This court reviews 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 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 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) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
Here, the appellant was convicted of larceny of government
property and unauthorized absence terminated by apprehension.
Additionally, the appellant was previously disciplined for
stealing and selling MREs and in this instance he ordered watch-
standing students to load his vehicle with MREs in order to
effectuate the theft. While the appellant’s creditable and
honorable service, especially in combat, weighs into our
individual consideration of the appropriateness of the sentence,
we conclude that, based on the entire record, justice was served
and the appellant received the punishment he deserved.
cause or impact his decision to steal the MREs or his unauthorized absence
and that he was taking his prescribed medications. Both the appellant and
his trial defense counsel maintained that the appellant’s PTSD did not give
rise to a potential defense of lack of mental responsibility.
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Conclusion
The findings and sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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