United States v. Bocage ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Keshawn M. BOCAGE
Aviation Electrician’s Mate Airman Recruit (E-1), U.S. Navy
Appellant
No. 202000206
_________________________
Decided: 31 January 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Stephen C. Reyes (trial)
Benjamin C. Robertson (Entry of Judgment)
Sentence adjudged 18 June 2020 by a general court-martial convened
at Fleet Activities Yokosuka, Japan, consisting of a military judge sit-
ting alone. Sentence in the Entry of Judgment: confinement for 24
months 1 and a bad-conduct discharge.
For Appellant:
Captain Thomas P. Belsky, JAGC, USN
1 The convening authority suspended confinement in excess of 12 months pursuant
to a pretrial agreement.
United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
For Appellee:
Lieutenant Megan E. Martino, JAGC, USN
Major Kerry E. Friedewald, USMC
_________________________
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 wrongfully possessing,
using, distributing, and conspiring to distribute methlyenedioxyamphetamine,
a Schedule I controlled substance, in violation of Articles 81 and 112a, Uniform
Code of Military Justice [UCMJ]. 2
He asserts two assignments of error: (1) that his punitive discharge was
inappropriately severe, particularly when none of the other servicemembers
investigated for illegal drug activity at Naval Air Station (NAS) Atsugi during
the same timeframe received a punitive discharge despite engaging in similar
or more egregious misconduct; and (2) that his trial defense counsel was inef-
fective by failing to pursue a “substantial assistance” recommendation from
the trial counsel pursuant to Rule for Courts-Martial [R.C.M.] 1107(d)(1)(C)(i)
(2016), given Appellant’s cooperation with the government in the investigation
and prosecution of other servicemembers and his known objective to avoid a
punitive discharge. We find Appellant’s plea improvident to Specification 4 of
Charge II, wrongful possession of a controlled substance with intent to distrib-
ute, set aside the finding of guilty for that offense, and affirm its lesser-in-
cluded offense of wrongful possession. Finding no other prejudicial error, we
affirm the remaining findings and, upon reassessment, affirm the sentence.
I. BACKGROUND
Between June 2017 and January 2019, Appellant possessed, used, and dis-
tributed the hallucinogenic street drug, “ecstasy,” while stationed at NAS
Atsugi, Japan, where he worked in the field of aircraft maintenance. During
this 20-month period, in conspiracy with other Sailors, Appellant traveled to
2 10 U.S.C. §§ 881, 912a.
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
Tokyo over 10 times to buy the drug from a civilian supplier and sold it for
between $20 and $50 per tablet to at least 13 other Sailors, from whom he
received a total of over $6,000.
In May 2020, Appellant entered into a pretrial agreement, in which he
agreed to plead guilty to the offenses at general court-martial in exchange for
the convening authority agreeing to suspend confinement in excess of 12
months and commute any adjudged dishonorable discharge to a bad-conduct
discharge. 3 Under the agreement, Appellant also agreed to provide truthful
information and testimony regarding his knowledge of the illegal possession,
use, and distribution of controlled substances by other individuals. On 5 June
and 10 July 2020, accompanied by his trial defense counsel [TDC], Appellant
participated in proffer interviews with law enforcement as required under the
agreement.
On 1 June 2020, Appellant’s TDC spoke to the trial counsel about the pos-
sibility of his providing a “substantial assistance” letter regarding Appellant’s
cooperation with government investigators. The trial counsel declined to pro-
vide such a letter and stated his position that confinement for one year and a
bad-conduct discharge were the terms of the pretrial agreement.
On 18 June 2020, Appellant pleaded guilty to the offenses at general court-
martial and was sentenced to confinement for 24 months and a dishonorable
discharge. Pursuant to the pretrial agreement, when the convening authority
took action on the case on 9 July 2020, he suspended confinement in excess of
12 months and approved only a bad-conduct discharge.
II. DISCUSSION
A. Sentence Appropriateness
We review sentence appropriateness de novo. 4 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.” 5 In exercising this function, we seek to assure that “justice is done
3 Appellant was unsuccessful in his efforts to negotiate a pretrial agreement that
resolved his case at special court-martial and protected against a bad-conduct dis-
charge.
4 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
5 Article 66(d)(1), UCMJ.
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
and that the accused gets the punishment he deserves.” 6 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.” 7 We
have significant discretion in determining sentence appropriateness, but may
not engage in acts of clemency. 8
We may consider other court-martial sentences when determining sentence
appropriateness; however, we are only required “to engage in sentence com-
parison with specific cases . . . in those rare instances in which sentence appro-
priateness can be fairly determined only by reference to disparate sentences
adjudged in closely related cases.” 9 An appellant bears the burden of demon-
strating that another case is “closely related” to his case and that the sentences
are “highly disparate.” 10 If the appellant meets that burden, then the govern-
ment must show that there is a rational basis for the disparity. 11
Appellant argues his sentence is inappropriately severe because, of all the
Sailors investigated for buying, selling, or using illegal drugs in and around
NAS Atsugi at the time, he is the only one who received a punitive discharge.
We disagree with this argument for several reasons.
First, most of the cases Appellant cites are not closely related to his partic-
ular case. Factors that make cases “closely related” include “coactors involved
in a common crime, servicemembers involved in a common or parallel scheme,
or some other direct nexus between the servicemembers whose sentences are
sought to be compared.” 12 The majority of the cases cited by Appellant involve
different Sailors, distributing different controlled substances, with no connec-
tion to Appellant’s illegal drug operations. The mere fact that other Sailors
were illegally distributing controlled substances in the vicinity of NAS Atsugi
6 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
7 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotation marks omitted).
8 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
9 United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001) (quoting United States
v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)).
10 Lacy, 50 M.J. at 288.
11 Id.
12 Lacy, 50 M.J. at 288. See also United States v. Kelly, 40 M.J. 558, 570 (N-M. Ct.
Mil. Rev. 1994) (“[A]s a threshold requirement for the review of forum selection or sen-
tence comparison, the cases must involve offenses that are similar in both nature and
seriousness or which arise from a common scheme or design.”).
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
around the same time Appellant was distributing ecstasy is insufficient to
make their cases closely related to Appellant’s. 13
Second, to the extent that any of the cases Appellant cites is even arguably
closely related because it intersects some of his own misconduct, there is a ra-
tional basis for the disparity in Appellant’s higher court-martial sentence. The
record supports, for example, that Seaman Bravo 14 asked Appellant to buy ec-
stasy and Seaman Victor gave Appellant money to do so and accompanied him
on some of his trips to Tokyo to purchase the drug. However, the record also
indicates that these Sailors’ involvement comprised only a small fraction of the
purchase, use, and distribution of ecstasy that Appellant engaged in with nu-
merous other Sailors for over a year and a half. We find it eminently reasonable
that the ringleader responsible for buying and distributing over a hundred
doses of an illegal hallucinogenic to over a dozen Sailors received a punitive
discharge and substantial confinement at a general court-martial, whereas
less culpable actors received either lesser sentences at lower forums or adverse
administrative action. 15
Third, Appellant’s punishment was the predictable result of a pretrial
agreement that he negotiated and voluntarily entered into with the convening
authority. Pursuant to the agreement, any adjudged confinement in excess of
12 months would be suspended, and any adjudged dishonorable discharge
would be commuted to a bad-conduct discharge. These terms are the reason
half of the adjudged 24 months’ confinement was suspended and Appellant re-
ceived only a bad-conduct discharge, as opposed to the dishonorable discharge
that was adjudged. As we have previously stated, “we generally refrain from
13 As Appellant concedes, “the Court typically should not compare sentences based
on the nature of the charges alone.” Appellant’s Reply Br. at 3 (citing United States v.
Ballard, 20 M.J. 282, 285 (C.M.A. 1985) (rejecting the view that courts must “inquire
. . . whether [a] penalty is . . . unacceptable in a particular case because disproportion-
ate to the punishment imposed on others convicted of the same crime”)).
14All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
15Seaman Bravo pleaded guilty at a special court-martial to wrongfully using, dis-
tributing, and conspiring to distribute controlled substances, and received 90 days’
confinement and reduction to E-1. Seaman Victor was administratively discharged un-
der other than honorable conditions in lieu of trial by court-martial.
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
second guessing or comparing a sentence that flows from a lawful pretrial
agreement . . . .” 16
Finally, irrespective of the pretrial agreement, in the light of the prolonged
and serious nature of Appellant’s overseas misconduct, which impacted the
service of over a dozen other Sailors, we find that the approved sentence of 24
months’ confinement (12 of which were suspended) and a bad-conduct dis-
charge is just and that Appellant received the punishment he deserves. 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.
B. Ineffective Assistance of Counsel
Appellant asserts his TDC was ineffective in not requesting a substantial
assistance letter from the trial counsel. We review claims of ineffective assis-
tance of counsel de novo. 17
In the military, the Sixth Amendment right to effective assistance of coun-
sel “extends to assistance in the preparation and submission of post-trial mat-
ters,” since “[o]ne of the last best chances an appellant has is to argue for clem-
ency by the convening authority.” 18 In this regard, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 19 To determine if the presumption of competence has
been overcome, we use the following three-pronged test:
(1) Are [the] appellant’s allegations true; if so, is there a reason-
able explanation for counsel’s actions?
(2) If the allegations are true, did defense counsel’s level of ad-
vocacy fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers?
16 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) (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”).
17 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009).
18United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001) (internal quotation
marks and citations omitted).
19 Strickland v. Washington, 466 U.S. 668, 689 (1984).
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
(3) If a defense counsel was ineffective, is there a reasonable
probability that, absent the errors, there would have been a dif-
ferent result? 20
Here, TDC made a request for a substantial assistance letter, but it was
declined by the trial counsel, whose position was that the pretrial agreement
was for 12 months’ confinement and a bad-conduct discharge. Appellant was
nevertheless required under the pretrial agreement to participate in proffer
sessions with law enforcement in order to receive those principal benefits: sus-
pension of half of the adjudged 24 months’ confinement and disapproval of the
adjudged dishonorable discharge. Based on the nature and duration of Appel-
lant’s misconduct, we find reasonable the inference that the trial counsel’s po-
sition was unchanged by Appellant’s participation in the proffer sessions, one
of which occurred after the convening authority had already taken action on
the case. Accordingly, based on the record before us, we find Appellant has not
overcome the strong presumption that TDC’s advocacy fell within the wide
range of reasonable professional assistance.
C. Providence Inquiry for Possession with Intent to Distribute
A military judge may not accept a guilty plea unless he determines there is
a sufficient factual basis for every element of the offenses to which the accused
has pleaded guilty. 21 In Specification 4 of Charge II, Appellant was charged
with and pleaded guilty to wrongful possession of methylenedioxyampheta-
mine with the intent to distribute it. However, as the Government concedes,
the providence inquiry did not address the element of intent to distribute. We
therefore find Appellant’s plea provident only to the lesser-included offense of
wrongful possession, and we except and dismiss with prejudice the language,
“with the intent to distribute the said controlled substance,” as reflected in our
decretal paragraph below.
D. Sentence Reassessment
Having dismissed Appellant’s conviction for the greater offense charged in
Specification 4 of Charge II and affirmed only its lesser-included offense, we
must determine whether we can reassess the sentence or must remand for the
trial court to do so. We do so by analyzing (1) whether there have been dramatic
changes in the penalty landscape or exposure; (2) whether sentencing was by
20 Gilley, 56 M.J. at 124 (internal quotation marks and citation omitted).
21 See United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 2006); R.C.M. 910(e),
Discussion.
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
members or a military judge alone; (3) whether the nature of the remaining
offenses captures the gravamen of the criminal conduct included within the
original offenses and whether significant or aggravating circumstances ad-
dressed at the court-martial remain admissible and relevant to the remaining
offenses; and (4) whether the remaining offenses are of the type with which
appellate judges should have the experience and familiarity to reliably deter-
mine what sentence would have been imposed at trial. 22
Here, Appellant remains convicted of possessing, using, distributing, and
conspiring to distribute a Schedule I controlled substance. While his overall
exposure to confinement has been reduced from 50 years to 40 years, the record
reflects that both the parties and the military judge essentially ignored the
element of intent to distribute throughout the proceedings—e.g., the maximum
punishment was apparently calculated based on the offense of only wrongful
possession. The sentencing was conducted by a military judge, and the remain-
ing offenses capture the gravamen of Appellant’s illegal-drug-related miscon-
duct. The offenses that remain are offenses that we have sufficient experience
and familiarity with to reliably determine what sentence would have been im-
posed at trial. Accordingly, we conclude we are able to reassess the sentence
and find that the sentence the military judge would have imposed for the re-
maining offenses is the same as the one he originally adjudged.
III. CONCLUSION
The language, “with the intent to distribute the said controlled substance,”
of Specification 4 of Charge II is SET ASIDE AND DISMISSED WITH
PREJUDICE. We affirm Appellant’s conviction of the specification’s remain-
ing language, comprising the lesser-included offense of wrongful possession of
methylenedioxyamphetamine. As the Entry of Judgment does not accurately
reflect the disposition of the charges, in accordance with Rule for Courts-Mar-
tial 1111(c)(2), we modify the Entry of Judgment and direct that it be included
in the record.
The remaining findings and the sentence are AFFIRMED.
22 United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).
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United States v. Bocage, NMCCA No. 202000206
Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
9
UNITED STATES NMCCA NO. 202000206
v. ENTRY
OF
Keshawn M. BOCAGE JUDGMENT
Aviation Electrician’s Mate Airman
Recruit (E-1) As Modified on Appeal
U.S. Navy
Accused
31 January 2022
On 18 June 2020, the Accused was tried at Fleet Activities Yokosuka, Japan, by a
general court-martial, consisting of a military judge sitting alone. Military Judge Ste-
phen C. Reyes presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge I: Violation of Article 81, Uniform Code of Military Justice,
10 U.S.C. § 881.
Plea: Guilty.
Finding: Guilty.
Specification: Conspiracy to Distribute
Methylenedioxyamphetamine, a Schedule I controlled
substance, on divers occasions between about June
2017 and about January 2019.
Plea: Guilty.
Finding: Guilty.
Charge II: Violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a.
Plea: Guilty.
Finding: Guilty.
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United States v. Bocage, NMCCA No. 202000206
Modified Entry of Judgment
Specification 1: Wrongful Use of Methylenedioxyamphetamine, a
Schedule I controlled substance, on or about 8 July
2019.
Plea: Guilty.
Finding: Guilty.
Specification 2: Wrongful Use of Lysergic Acid Diethylamide on or
about 15 July 2019.
Plea: Not Guilty.
Finding: Dismissed.
Specification 3: Wrongful Introduction of
Methylenedioxyamphetamine, a Schedule I controlled
substance, between about March 2019 and about April
2019.
Plea: Not Guilty.
Finding: Dismissed.
Specification 4: Wrongful Possession of Methylenedioxyamphetamine,
a Schedule I controlled substance, with Intent to
Distribute on or about 1 December 2017.
Plea: Guilty.
Finding: Guilty of the Lesser Included Offense of Wrongful
Possession; the language, “with the intent to distribute the
said controlled substance,” was Dismissed.
Specification 5: Wrongful Distribution of
Methylenedioxyamphetamine, a Schedule I controlled
substance, on divers occasions between about June
2017 and about January 2019.
Plea: Guilty.
Finding: Guilty.
SENTENCE
On 18 June 2020, the military judge sentenced the Accused to the following (as
modified during post-trial action by the convening authority):
Confinement for 24 months.
A bad-conduct discharge.
The Accused shall be credited with 96 days of confinement already served, to be
deducted from the adjudged sentence to confinement.
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United States v. Bocage, NMCCA No. 202000206
Modified Entry of Judgment
The convening authority suspended confinement in excess of 12 months for a period
of 12 months.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
12