United States v. Fuster ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Brandon FUSTER
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000230
Decided: 29 September 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
K. Scott Woodard
Sentence adjudged 24 June 2020 by a special court-martial convened
at Marine Corps Base Camp Lejeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: re-
duction to E-1, confinement for four months, and a bad-conduct dis-
charge.
For Appellant:
Lieutenant Commander Erin L. Alexander, JAGC, USN
For Appellee:
Commander Kevin D. Shea, JAGC, USN
Commander James M. Toohey, JAGC, USN
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Senior Judge STEPHENS delivered the opinion of the Court, in which
Chief Judge MONAHAN and Judge DEERWESTER joined.
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
STEPHENS, Senior Judge:
Appellant was convicted, pursuant to his pleas, of one specification each
of conspiracy, violating a lawful general order, assault consummated by
battery, and unauthorized entry, in violation of Articles 81, 92, 128, and 129,
Uniform Code of Military Justice [UCMJ]. 1 The charges stemmed from an
incident where Appellant and two other Marines accosted a junior Marine,
forced him to drink alcohol and perform exercises, and physically assaulted
him.
Appellant’s sole assignment of error is that his term of confinement and
punitive discharge are inappropriately severe, particularly when compared to
the sentences of the other two culpable Marines. The other Marines each
received less confinement than Appellant and they did not receive punitive
discharges, despite engaging in similar misconduct. We disagree and find no
prejudicial error and affirm.
I. BACKGROUND
One evening in September of 2019, Appellant joined Lance Corporal (E-3)
[LCpl] Hotel 2 and LCpl Charlie at their barracks room, where they had been
playing video games and had each already consumed several beers. After
about ten minutes, the three Marines decided to go to Private First Class
(E-2) [PFC] Vance’s room to force him to drink. When PFC Vance opened the
door, LCpl Hotel gave PFC Vance a beer and told him to “chug it.” 3 Appellant
1 10 U.S.C. § 881, 892, 928, 929.
2 All names used in this opinion, except those of the judges, appellate counsel,
and Appellant are pseudonyms.
3 Pros. Ex. 1 at 3.
2
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
encouraged this by yelling phrases at PFC Vance such as “drink b[***],” or
words to that effect. 4
At some point Appellant, LCpl Hotel, and LCpl Charlie left PFC Vance’s
room. But when they returned, their knocks went unanswered. LCpl Hotel
retrieved a master key to the barracks and opened the door. All three Ma-
rines entered PFC Vance’s room uninvited.
After making PFC Vance drink in his room, LCpl Hotel, LCpl Charlie and
Appellant brought him outside and made him run to the adjacent parking lot,
where they continued to accost him. This included forcing PFC Vance to
perform push-ups, sit-ups, and planks, all while simultaneously yelling at
him to keep drinking beer and hard liquor. At some point, LCpl Hotel kicked
PFC Vance in the stomach and ribs. PFC Vance, who later estimated he
drank about a half bottle of liquor and at least 10 beers, 5 began vomiting.
When he attempted to stand up and yell at LCpl Hotel in protest, Appellant
grabbed PFC Vance from behind in a chokehold. Appellant used his own leg
to sweep PFC Vance’s left leg and slammed him back down to the ground.
LCpl Hotel, LCpl Charlie, and Appellant then made him run back to the
barracks and crawl up the staircase on his hands and knees. Once back in
PFC Vance’s room, they pushed him into the shower and LCpl Hotel sprayed
him with shaving cream and Windex cleaner.
Appellant eventually pleaded guilty. During the providency inquiry, Ap-
pellant acknowledged he was the most sober participant, having only con-
sumed approximately three beers that evening. Appellant’s plea agreement
placed no limitation on punitive discharges and capped the maximum
amount of confinement at four months.
LCpl Hotel and LCpl Charlie’s records of trial are not part of Appellant’s
record of trial, and their courts-martial did not satisfy the jurisdictional
requirement for review by this Court under Article 66(b), UCMJ. 6 But the
Convening Authority’s Action in Appellant’s record of trial listed LCpl Hotel
and LCpl Charlie’s cases as companion cases. LCpl Hotel pleaded guilty at
special court-martial of one specification each of violating Articles 81, 92, 115,
128, and 129, UCMJ, and was sentenced to 80 days’ confinement, forfeiture of
$1,155 pay per month for three months and reduction in rank to E-1. He did
not receive a punitive discharge. LCpl Charlie pleaded guilty at summary
4 Id.
5 Pros. Ex. 2 at 5.
6 10 U.S.C. § 866(b).
3
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
court-martial to one specification each of violating Articles 81 and 92, UCMJ.
He was sentenced to reduction in rank to E-2, forfeitures of $1,295 pay per
month for one month, and 60 days’ restriction. 7
II. DISCUSSION
We review sentence appropriateness de novo. 8 This Court, like our sister
service courts of criminal appeals, have long been disinclined to compare
individual sentences. “Accused persons are not robots to be sentenced by fixed
formulae but rather, they are offenders who should be given individualized
consideration on punishment.” 9 Indeed, “sentence appropriateness should be
determined without reference to or comparison with the sentences received
by other offenders.” 10 This even applies to the sentencing of codefendants,
where “the military system must be prepared to accept some disparity . . .
provided each military accused is sentenced as an individual.” 11 Appellate
courts only make such comparisons “in those rare instances in which sen-
tence appropriateness can be fairly determined only by reference to disparate
sentences adjudged in closely related cases.” 12
In United States v. Lacy, 13 the Court of Appeals for the Armed Forces
[CAAF] laid out a three-part test for determining sentence appropriateness in
light of claims of disparate treatment. This test asks: (1) whether the cases
are closely related; (2) whether the cases resulted in highly disparate sen-
tences; (3) and if it did result in highly disparate sentences, whether there
was a rational basis for that difference. 14 If an appellant meets his burden of
7 As the Government points out in its Motion to Attach, the Convening Authori-
ty’s Action erroneously stated that LCpl Charlie was sentenced to 90 days’ confine-
ment and forfeiture of $1,041 pay per month for a period of three months. Under
Rules for Court-Martial 1301(d)(1), a summary court-martial may not, among other
things, adjudge more than one month of confinement or forfeitures of more than two-
thirds of one month’s pay. We address this error in our decretal paragraph.
8 United States v. Lane, 64 M.J. 1, 4 (C.A.A.F. 2006).
9 United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180 (1959).
10 United States v. Ballard, 20 M.J. 282, 283 (C.A.A.F. 1985) (internal citations
omitted).
11 United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001).
12 Ballard, 20 M.J. at 283.
13 50 M.J. 286 (C.A.A.F. 1999).
14 Id. at 288.
4
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
showing the first two prongs, the burden shifts to the Government to show
the rational basis for the difference. 15
There is no question Appellant’s case satisfies the first prong. He,
LCpl Hotel, and LCpl Charlie were all co-actors in the same event, collective-
ly mistreating PFC Vance. But whether or not Appellant’s sentence qualifies
as highly disparate from that of his co-actors is questionable. It is true
Appellant’s sentence of four months’ confinement and a bad-conduct dis-
charge was more severe than LCpl Hotel’s punishment [80 days’ confinement
and no punitive discharge] and LCpl Charlie’s punishment [summary court-
martial and no confinement]. However, “the test [for highly disparate sen-
tences] is not limited to a narrow comparison of the relative numerical values
of the sentences at issue, but also may include consideration of the disparity
in relation to the potential maximum punishment.” 16 LCpl Hotel—who had
almost identical charges as Appellant—faced the same maximum possible
punishment as Appellant under the jurisdictional maximum of the special
court-martial.
Assuming arguendo Appellant’s sentence was highly disparate from that
of his co-actors, and therefore meets the second prong of the Lacy test, the
record still shows a rational basis for the difference. In United States v.
Durant, the sentence disparity between defendants was much greater, and
yet CAAF still found no abuse of discretion or obvious miscarriage of justice
because there was a rational basis for the difference. 17 In Durant, the appel-
lant received a dishonorable discharge and confinement for 30 months,
though his co-conspirator received neither confinement nor a punitive dis-
charge. 18 Unlike the appellant in Durant who chose to be sentenced by a
military judge alone, the co-conspirator chose to request sentencing by officer
and enlisted members. In finding a rational basis for the difference, CAAF
contrasted the appellant’s character evidence with that of his co-
conspirator’s. While the appellant’s witnesses were “lukewarm in their
assessment of the appellant’s future potential,” the coconspirator presented
glowing witness testimony in extenuation and mitigation, as well as having
his wife beg the members to keep her husband out of confinement. 19
15 United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2000).
16 Lacy, 50 M.J. at 289.
17 55 M.J. at 263.
18 Id. at 259.
19 Id. at 262.
5
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
Much like the appellant in Durant, there are specific factors that provide
a rational basis for why Appellant may have received a greater sentence than
his peers. Most notably, out of the three culpable Marines, Appellant admit-
ted to being “the most sober one there,” 20 having only consumed approximate-
ly three beers over the course of the evening. While LCpl Hotel and
LCpl Charlie’s intoxication levels do not excuse their misconduct, it is rea-
sonable to conclude that Appellant’s relative sobriety made his actions all the
more egregious. When PFC Vance attempted to resist his tormentors by
literally standing up to them, Appellant physically forced PFC Vance back to
the ground by holding him from the rear and sweeping his leg. Additionally,
LCpl Charlie was also only convicted of violating Articles 81 and 92, and was
not charged with additional violations of Articles 128 and 129—both faced by
Appellant and LCpl Hotel.
It should also be noted Appellant knowingly and voluntarily entered into
a plea agreement that capped confinement to a maximum of four months and
that explicitly permitted a bad-conduct discharge. Like the appellant in
Durant, Appellant’s sentence, and its disparity with that of his co-actors, is
partially the result of his own choices. Although Appellant did not “beat” his
deal, he did receive a sentence that was legally permitted by it. He received
the benefit of his bargain. Additionally, while we do not have LCpl Hotel and
LCpl Charlie’s character evidence before us, it can be said that Appellant’s
own evidence was middling. The only written defense exhibit that Appellant
submitted was his Record of Service, which was otherwise unremarkable. For
these reasons, we find there was a rational basis for the difference between
Appellant’s sentence and that of his co-actors and we do not find it to be
inappropriately severe.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 21
As noted earlier, the Convening Authority’s Action incorrectly summa-
rized LCpl Charlie’s adjudged punishment. Although we find no prejudice
from this scrivener’s error, Appellant is entitled to have court-martial records
20 R. at 43.
21 Articles 59 & 66, UCMJ.
6
United States v. Fuster, NMCCA No. 202000230
Opinion of the Court
that correctly reflect the content of his proceeding. 22 Accordingly, we direct
that a corrected supplemental Convening Authority’s Action be issued.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
22 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
7