United States v. Hernandez ( 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.
GUSTAVO A. HERNANDEZ
LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY
NMCCA 201500145
GENERAL COURT-MARTIAL
Sentence Adjudged: 4 March 2015.
Military Judge: CDR Marcus N. Fulton, JAGC, USN.
Convening Authority: Commander, Navy Region Hawaii, Pearl
Harbor, HI.
Staff Judge Advocate's Recommendation: LCDR J.S. Ayeroff,
JAGC, USN.
For Appellant: LCDR Ryan Mattina, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN; LT James M.
Belforti, 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 general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of fraternization and one specification of
obstruction of justice, in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934. Under the terms of a
pretrial agreement, all other charges before the court were
withdrawn and dismissed.
The military judge sentenced the appellant to a reprimand,
total forfeiture of pay and allowance, and a dismissal. The
convening authority (CA) approved the sentence as adjudged.
On appeal, the appellant alleges his dismissal is
inappropriately severe. After careful examination of the record
of trial and the pleadings of the parties, we disagree. The
findings and sentence are correct in law and fact, and we find
no error materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ.
Background
On 31 March 2014, the appellant, a lieutenant junior grade
permanently assigned to the USS NORTH CAROLINA (SSN 777), was
ashore on port call in Guam. Over the course of the evening,
the appellant drank with, and bought drinks for, junior enlisted
Sailors, to include Machinist Mate Second Class (MM2) CDJ, who
worked in the same division as the appellant aboard the NORTH
CAROLINA. The appellant later sought out MM2 CDJ, and while
sitting in a public stairwell, told him he was “a cute guy” and
kissed him on the mouth. After this kiss was observed by Sonar
Technician Submarine Third Class (STS3) ADG, who was also
assigned to the NORTH CAROLINA, and then a member of the Shore
Patrol, the appellant attempted to convince STS3 ADG to not
“report him” for kissing MM2 CDJ because the appellant and STS3
ADG shared a common ethnic heritage and they both worked in the
same division.
Later that night (early morning of 1 April 2014), after
being warned by a fellow officer to remain away from MM2 CDJ,
the appellant again met with MM2 CDJ, and again drank with him
in a bar. They thereafter left the bar and walked to a secluded
area, where the appellant unzipped MM2 CDJ’s pants, pulled out
MM2 CDJ’s penis, and performed oral sex on him. Later that
night, the appellant again met with STS3 ADG near the submarine,
and again told him to not report that the appellant has kissed
MM2 CDJ. The appellant admitted he specifically endeavored to
alter STS3 ADG’s testimony with the intent to influence the due
administration of justice. The appellant, a Naval Academy
graduate, who at the time of the offense had 11 months’ time in
grade, also admitted his kissing and performing oral sex on MM2
CDJ constituted fraternization.
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Prior to sentencing, the court-martial received evidence
that, as a result of the appellant’s actions, MM2 CDJ felt alone
and isolated, that he lost trust in others, that he was wary of
officers, that he suffers flashbacks to the night of the
offenses, and that his parents and sister also experienced
stress.
Sentence Severity
In accordance with Article 66(c), UCMJ, this court “may
affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record, should
be approved.” This court reviews the appropriateness of a
sentence de novo. United States v. Roach, 66 M.J. 410, 412
(C.A.A.F. 2008). 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), which requires “individualized
consideration of the particular accused on the basis of the
nature and seriousness of the offense and character of the
offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted).
During the course of a port call, the appellant repeatedly
approached a junior Sailor who was assigned to his division;
kissed him on the mouth; did so in a public area where they were
seen by another Sailor assigned to the same submarine;
subsequently engaged in oral sex with that same junior Sailor;
and then, using his status as an officer, repeatedly attempted
to convince another junior Sailor to not report his misconduct
to his command. Accordingly, in light of the circumstances of
this case, we find the sentence, and in particular the imposed
dismissal, to be fair and just.
Finally, we note the Government in its response to the
appellant’s brief, addresses what it characterizes as an implied
assignment of error (AOE) for sentence disparity. The
Government infers this AOE’s existence because the appellant’s
brief quotes a retired officer’s good military character letter
opining that similar heterosexual episodes of fraternization
were resolved via Captain’s or Admiral’s Mast. Appellee’s Brief
of 31 Jul 2015 at 13-18 and Appellant’s Brief of 1 Jul 2015 at
3-4. In reviewing the pleadings and record, we conclude the
appellant, who did not affirmatively raise sentence disparity as
an AOE, has not met his burden of demonstrating that any cited
cases are “closely related” to his case and that his sentence,
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therefore was “highly disparate.” United States v. Lacy, 50
M.J. 286, 288 (C.A.A.F. 1999). Accordingly, we find no error
and thus grant no relief for a claim of sentence disparity,
implied or otherwise.
Conclusion
After reviewing the entire record and all the pleadings, we
affirm the findings and sentence as approved by the CA.
For the Court
R.H. TROIDL
Clerk of Court
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