United States v. Jackson ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, BAKER, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Javonte R. JACKSON
Culinary Specialist Second Class (E-5), U.S. Navy
Appellant
No. 202100087
_________________________
Decided: 25 April 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Kimberly J. Kelly
Sentence adjudged 11 December 2020 by a general court-martial con-
vened at Naval Base Kitsap, Bremerton, Washington, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: reduc-
tion to E-1, confinement for six months, and a bad-conduct discharge.
For Appellant:
Captain Jasper W. Casey, USMC
For Appellee:
Captain Tyler W. Blair, USMC
Major Clayton L. Wiggins, USMC
United States v. Jackson, NMCCA No. 202100087
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 and assault consummated by a battery in violation of Articles 92 and
128, Uniform Code of Military Justice [UCMJ], 1 for sexually harassing four
junior Sailors and assaulting a fifth. In his sole assignment of error, he asserts
that his punitive discharge is inappropriately severe, arguing that he put on a
strong case in extenuation and mitigation, was remorseful, and acknowledged
that he showed poor judgment. We affirm the findings and sentence.
I. BACKGROUND
Between June 2018 and April 2019, while assigned to USS Carl Vinson
(CVN 70), Appellant sexually harassed four of his subordinate Sailors on mul-
tiple occasions. He made sexual jokes and comments, questioned them about
their sex lives, used sexually explicit language in their workspaces, and shared
details describing his own sex life. He later admitted that his actions were of-
fensive and unwelcome, made the Sailors he supervised feel uncomfortable,
and created a hostile work environment, which impacted their ability to per-
form their duties and was detrimental to good order and discipline.
In May 2019, Appellant and his wife held a church dance routine practice
at their home. One of Appellant’s female subordinates attended the practice.
When the practice concluded, Appellant walked the Sailor to her car. As she
turned to get into her car, he grabbed her hand and moved it toward his lower
stomach area. In doing so, he restrained her and prevented her from leaving,
which made her uncomfortable and upset. He acknowledged that the Sailor did
not consent to this act and that his actions caused her bodily harm.
Appellant subsequently entered into a plea agreement, in which he agreed
to plead guilty to the above-described offenses in exchange for the convening
authority agreeing to a confinement range of four to nine months and to with-
draw and dismiss other specifications charging Appellant with sexual offenses.
1 10 U.S.C. §§ 892, 928.
2
United States v. Jackson, NMCCA No. 202100087
Opinion of the Court
The agreement placed no limitation on the military judge’s ability to adjudge
a punitive discharge or reduction in rank.
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
Appellant’s punishment was the predictable result of the plea agreement
he negotiated and voluntarily entered into with the convening authority. As
Appellant acknowledged at trial, the agreement provided that Appellant could
be sentenced to the full range of punitive discharge options—from no discharge
to a dishonorable discharge—and limited confinement to a period of between
four and nine months. Thus, under the terms of the agreement the military
judge could have sentenced Appellant to nine months’ confinement and a dis-
honorable discharge. Instead, she adjudged a sentence that included only a
bad-conduct discharge and six months’ confinement. This sentence was well
within the parameters of the plea agreement, and as we have previously
stated, “we generally refrain from second guessing . . . a sentence that flows
from a lawful pretrial agreement . . . .”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 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172 at *7 (N-M. Ct.
Crim. App. Mar. 22, 2016) (unpublished); see also United States v. Casuso, No.
202000114, 2021 CCA LEXIS 328 at *8 (N-M. Ct. Crim. App. June 30, 2021) (un-
published) (questioning an appellant’s “claim of inappropriate severity when the sen-
tence he received was within the range of punishment he was expressly willing to ac-
cept in exchange for his pleas of guilty”).
3
United States v. Jackson, NMCCA No. 202100087
Opinion of the Court
Irrespective of the plea agreement, in light of the serious and repeated na-
ture of Appellant’s misconduct, which adversely impacted the service of five
Sailors and the Navy’s accomplishment of its mission, we find that the sentence
including six months’ confinement and a bad-conduct discharge is just, and
that Appellant received the punishment he deserves. Despite evidence of his
difficult childhood and prior record of good service, the evidence reveals an 11-
month course of unwanted sexual advances by Appellant that included not only
propositioning his subordinates for sex, but also touching their private areas
and trying to make them touch his without their consent. As a result, the vic-
tims suffered significant mental pain and anxiety. After reviewing the record
as a whole, we find that the sentence is correct in law, appropriately reflects
the matters in aggravation, extenuation, and mitigation 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. 8
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
8 Articles 59 & 66, UCMJ.
4