United States v. Cabrera ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, BAKER, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jose A. Cabrera
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 202100085
_________________________
Decided: 26 July 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Keaton H. Harrell
Sentence adjudged 4 December 2020 by a special court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consisting
of a military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 5 months, and a bad-conduct dis-
charge.
For Appellant:
Lieutenant Daniel O. Moore, JAGC, USN
For Appellee:
Commander Joshua M. Hawkes, JAGC, USN
Lieutenant John L. Flynn IV, JAGC, USN
United States v. Cabrera, NMCCA No. 202100085
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.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of violation of a lawful gen-
eral order, false official statement, four specifications of assault consummated
by a battery, and aggravated assault in violation of Articles 92, 107, and 128,
Uniform Code of Military Justice [UCMJ], 1 for hazing a subordinate Marine,
making a false official statement during the investigation, assaulting four
other Marines, and choking a sixth Marine into unconsciousness. In his sole
assignment of error, he asserts that a punitive discharge is inappropriately
severe, arguing that his record demonstrates sustained superior performance
along with his willingness to enter into a plea agreement. We affirm the find-
ings and sentence.
I. BACKGROUND
While acting as platoon sergeant, Appellant hazed a Lance Corporal (LCpl)
under his charge during classroom instruction, berating him for his out-of-
shape appearance, for not speaking loudly enough, and for his inability to an-
swer simple questions. Over an 18-month period, he physically assaulted five
other Marines over whom he held a position of authority. He threw one Marine
into a wall and struck him with his fists; he threw another Marine onto the
ground; he slammed a Private First Class’s night vision gear into the Marine’s
mouth, chipping his tooth; he slapped a LCpl in the face; and he placed another
LCpl in a chokehold, rendering him temporarily unconscious. When questioned
by his First Sergeant about the allegations of hazing and assault, Appellant
provided a written statement falsely denying the allegations.
Appellant subsequently entered into a plea agreement in which he agreed
to plead guilty at a special-court martial to the above-described offenses in ex-
change for the convening authority agreeing to a confinement range of three to
1 10 U.S.C. §§ 892, 907, 928.
2
United States v. Cabrera, NMCCA No. 202100085
Opinion of the Court
six months, and to withdraw and dismiss 12 other specifications. The agree-
ment placed no limitation on the military judge’s ability to adjudge a punitive
discharge.
II. DISCUSSION
We review sentence appropriateness de novo. 2 This Court may only affirm
“the sentence, or such part or amount of the sentence, as the Court finds correct
in law and fact and determines, on the basis of the entire record, should be
approved.” 3 In exercising this function, we seek to assure that “justice is done
and that the accused gets the punishment he deserves.” 4 The review requires
an “individualized consideration of the particular accused on the basis of the
nature and seriousness of the offense and the character of the offender.” 5 In
making this assessment, we analyze the record as a whole. We have significant
discretion in determining sentence appropriateness, but we may not engage in
acts of clemency. 6
In light of the serious and repeated nature of Appellant’s misconduct, which
adversely impacted the service of six Marines under his authority and the Ma-
rine Corps’ mission readiness, we find that the sentence including 5 months’
confinement and a bad-conduct discharge is just, and that Appellant received
the punishment he deserves. Despite evidence of his prior record of good ser-
vice, the evidence reveals a year and a half of abusive behavior towards junior
Marines by Appellant, who was a noncommissioned officer in a position of au-
thority. The abuse included hazing and assaults that resulted in pain, embar-
rassment, a chipped tooth, and a LCpl passing out after being placed in a
chokehold by Appellant, who then furthered his misconduct by denying to his
First Sergeant allegations he knew to be true. The presentencing hearing did
little to mitigate the egregious nature of the misconduct, about which two of
the Marines testified they initially thought, “that’s just how the Marine Corps
is.” 7
2 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
3 Article 66(d)(1), UCMJ.
4 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
5 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotation marks omitted).
6 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
7 R. at 154, 169.
3
United States v. Cabrera, NMCCA No. 202100085
Opinion of the Court
Appellant’s punishment was also the predictable result of the plea agree-
ment he negotiated and voluntarily entered into with the convening authority.
As Appellant acknowledged at trial, the agreement provided that he could be
sentenced to a punitive discharge and a period of between three and six
months’ confinement. Thus, under the terms of the agreement the military
judge could have sentenced Appellant to six months’ confinement and a bad-
conduct discharge. Instead, the military judge adjudged a sentence that in-
cluded a bad-conduct discharge and only five months’ confinement. The sen-
tence was within the parameters of this agreement, and as we have previously
stated, “we generally refrain from second guessing . . . a sentence that flows
from a lawful pretrial agreement . . . .”8
After reviewing the record as a whole, we find the sentence is correct in
law, appropriately reflects the matters in aggravation, extenuation, and miti-
gation presented, and should be approved.
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. 9
The findings and the sentence are AFFIRMED.
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
8 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172, *7 (N-M. Ct. Crim.
App. Mar. 22, 2016) (unpublished); see also United States v. Casuso, No. 202000114,
2021 CCA LEXIS 328, *8 (N-M. Ct. Crim. App. June 30, 2021) (unpublished) (ques-
tioning an appellant’s “claim of inappropriate severity when the sentence he received
was within the range of punishment he was expressly willing to accept in exchange for
his pleas of guilty”).
9 Articles 59 & 66, UCMJ.
4