United States v. Rivera ( 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.
DEREK R. RIVERA
PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS
NMCCA 201500112
SPECIAL COURT-MARTIAL
Sentence Adjudged: 26 January 2015.
Military Judge: Maj M.D. Zimmerman, 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: Maj Jeffrey S. Stephens, USMCR.
For Appellee: CDR R.D. Evans, JAGC, USN; LT James M.
Belforti, JAGC, USN.
25 August 2015
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
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 special court-martial composed of a military judge alone
convicted the appellant, consistent with his plea, of
unauthorized absence terminated by apprehension, in violation of
Articles 86, Uniform Code of Military Justice, 10 U.S.C. § 886.
The appellant was sentenced to confinement for 75 days, to be
reduced to the pay grade of E-1, and to be discharged from the
Marine Corps with a bad-conduct discharge. The convening
authority (CA) approved the adjudged sentence and, pursuant to a
pretrial agreement, suspended all confinement in excess of 60
days for the period of confinement plus 6 months.
The appellant’s sole assignment of error is that the bad-
conduct discharge is inappropriately severe. After carefully
considering the record of trial and the submissions of the
parties, we are convinced that the findings and the 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), UCMJ.
Background
The appellant entered active-duty service on 23 July 2012.
Upon completion of his initial training he reported to the
Second Battalion, Fifth Marine Regiment at Camp Pendleton
California on 30 January 2013. He began his unauthorized
absence on May 6, 2013 and remained absent until 18 December
2014 when he was arrested by civilian law enforcement executing
a federal warrant for desertion and returned to military
control. The appellant, via his providence inquiry statements 1
and his mother’s sworn telephonic testimony during the
sentencing phase, explained he went into an unauthorized absence
status because his grandmother died on Thanksgiving Day 2012,
his father lost his job in January 2013, and his family was
being evicted from their home. The appellant believed he could
help prepare his grandmother’s house to be sold and that he
could assist his family financially if he returned home. During
his absence he found employment, provided financial and
emotional support to his family, and helped care for his younger
sisters and his sick mother. 2 The appellant argues these
circumstances, combined with the absence of government-provided
aggravation evidence, renders the appellant’s sentence
inappropriately severe. He asks this court to reassess his
sentence and approve a sentence that includes no more than 75
days’ confinement.
1
The appellant did not testify during the sentencing phase of his trial.
2
During the providence inquiry the military judge properly explained and
questioned the appellant on the possible defense of duress and necessity.
The appellant and his trial defense counsel agreed the defense did not exist
and affirmatively waived it. Record at 18-19.
2
Sentence Appropriateness
This court reviews the appropriateness of a sentence de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
A military appellate 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.” Art. 66(c), UCMJ.
Sentence appropriateness involves the judicial function of
assuring 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). This requires “‘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)).
After review of the entire record, we find that the
sentence is appropriate for this appellant and his offense.
First, we note the imposed sentence is far below the
jurisdictional maximum for a special court-martial. Second,
before imposing its sentence, we note the trial court heard
evidence the appellant knew he could have requested emergency
leave or sought command assistance before absenting himself;
that he never attempted to voluntarily return to military
control; that he had no intention of turning himself in; and
that had he not been apprehended in December 2014 he “would
still be UA.” Record at 21. Considering the nature and
seriousness of the appellant’s misconduct, the duration of his
absence, the fact it was terminated by apprehension, and his
stated intent to not return, we conclude that justice is done
and the appellant received the punishment he deserves by
affirming the sentence as approved by the CA. Granting sentence
relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.
3
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
4