United States v. Delnevo ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
KING, TANG, and LAWRENCE,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Brian H. DELNEVO
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900017
Decided: 24 February 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Major Terrance J. Reese, USMC. Sentence adjudged
10 October 2018 by a general court-martial convened at Marine Corps
Base Camp Lejeune, North Carolina, consisting of a military judge
sitting alone: reduction to paygrade E-1, confinement for twenty
months, and a dishonorable discharge. Sentence approved by the con-
vening authority: as adjudged.
For Appellant: Captain Marcus N. Fulton, JAGC, USN; Lieutenant
Commander Derek C. Hampton, JAGC, USN.
For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
United States v. Delnevo, NMCCA No. 201900017
PER CURIAM:
A military judge sitting as a general court-martial convicted Appellant,
consistent with his pleas, of two specifications of conspiring to commit larceny
of military property with a value greater than $500 and to wrongfully sell
that property; one specification of conspiring to obstruct justice; three
specifications of larceny of military property; two specifications of wrongful
sale of military property; and one specification of dereliction of duty in
violation of Articles 81, 92, 108, and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 892, 908, 921 (2016). Appellant claims that he
received a highly disparate sentence compared to that of his co-actors. We
disagree, find no prejudicial error, and affirm.
I. BACKGROUND
Appellant and three other Marines, all of whom worked in a supply ware-
house at 3d Marine Raider Battalion, pleaded guilty in accordance with their
pretrial agreements to charges involving stealing military property from that
warehouse and selling it to a local pawnshop. In addition to entering into a
conspiracy with Corporal (Cpl) Anne to do so, Appellant admitted to stealing
and selling this military property. He also admitted that he conspired with
Cpl Anne to obstruct justice by replacing the hard drive in the warehouse
video surveillance system. Some of this property was stolen with the assis-
tance of Cpl Galan-Perez and Lance Corporal (LCpl) Torres. The latter two
Marines eventually stopped stealing and attempted to convince Appellant to
do the same. He did not. Instead, he and Cpl Anne conspired to steal and sell
25 Solar Portable Alternative Communications Energy Systems, with a
cumulative value of over $323,000. They were apprehended before they could
do so.
The Marines entered into pretrial agreements. 1 Cpl Anne’s case was re-
ferred to a general court-martial where he pleaded guilty to three specifica-
tions of conspiracy; two specifications of larceny of military property greater
than $500; two specifications of wrongful sale of military property; one
specification of attempted wrongful sale of military property; one specifica-
tion of dereliction of duty; and one specification of obstruction of justice.
Facing over 70 years of confinement, Cpl Anne was sentenced to confinement
for twenty-eight months, reduction to pay grade E-1, a fine of $4,000, and a
dishonorable discharge.
1 Appellant’s pretrial agreement had no impact on the approved sentence.
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United States v. Delnevo, NMCCA No. 201900017
Cpl Galan-Perez’s case was referred to a special court-martial. As part of
his pretrial agreement, he pleaded guilty to one specification of conspiracy;
two specifications of wrongful sale of military property; and two specifications
of larceny of military property. Cpl Galan-Perez was sentenced to confine-
ment for six months, reduction to pay grade E-1, and a bad-conduct dis-
charge.
Finally, LCpl Torres’s charges were also disposed of at a special court-
martial, where he pleaded guilty to one specification of dereliction of duty;
two specifications of wrongful sale of military property; and two specifications
of larceny of military property. LCpl Torres was sentenced to five months
confinement, reduction to pay grade E-1, and a bad-conduct discharge.
Appellant now argues his sentence was highly disparate to the closely
related sentences of LCpl Torres and Cpl Galan-Perez because those two
Marines received substantially shorter terms of confinement than Appellant
did. He also argues that his sentence was highly disparate from that of Cpl
Anne, because Cpl Anne, while “more culpable” received “only a slightly
larger sentence.” We disagree, find no prejudicial error, and affirm the
findings and sentence. 2
II. DISCUSSION
We review sentence appropriateness de novo, United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006), and generally without reference or comparison to
sentences in other cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985). We will engage in sentence comparison only “in those rare instances in
which sentence appropriateness can be fairly determined only by reference to
2 Appellant raises three additional assignments of error pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, Appellant requests that we set
aside the sentence and remand the case for a rehearing in order for “the inconsisten-
cies and inaccuracies of Major Norman’s testimony to be properly presented to the
sentencing judge.” Appellant’s Brief of 22 May 2019 at 7-8. Second, that trial defense
counsel was ineffective for failing to negotiate a pretrial agreement including a
waiver of forefeitures in exchange for an allotment directed toward Appellant’s
spouse. Appellant’s Brief of 25 Nov 2019 at 2. Third, that a sentence extending to
twenty months’ confinement, reduction to pay grade E-1, and a dishonorable
discharge is inappropriately severe. Id. at 4. We have considered and find no merit in
Appellant’s second, third, and fourth assignments of error. Having carefully
considered those assignments of error, we find them to be without merit. See United
States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).
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United States v. Delnevo, NMCCA No. 201900017
disparate sentences adjudged in closely related cases.” United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting Ballard, 20 M.J. at 283).
When arguing for relief based on sentence disparity, an appellant must
demonstrate “that any cited cases are ‘closely related’ to his or her case and
that the sentences are ‘highly disparate.’ If the appellant meets that burden
. . . then the Government must show that there is a rational basis for the
disparity.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). “Closely
related” cases involve “offenses that are similar in both nature and serious-
ness or which arise from a common scheme or design.” United States v. Kelly,
40 M.J. 558, 570 (N.M.C.M.R. 1994).
In assessing whether sentences are highly disparate, “adjudged sentences
are used because there are several intervening and independent factors
between trial and appeal—including discretionary grants of clemency and
limits from pretrial agreements—that might properly create the disparity in
what are otherwise closely related cases.” United States v. Roach, 69 M.J. 17,
21 (C.A.A.F. 2010). Moreover, we are “not limited to a narrow comparison of
the relative numerical values of the sentences at issue,” but may also
consider “the disparity in relation to the potential maximum punishment.”
Lacy, 50 M.J. at 289. Finally, co-conspirators are not entitled to similar
sentences and disparity between them does not necessarily render one
sentence inappropriate, “provided each military accused is sentenced as an
individual.” United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001). This is
so because the point of examining disparate sentences is not only to eliminate
actual unfairness or injustice, but also to ensure the “appearance of fairness
and integrity, without which the public, members of Congress, and service
personnel will lose confidence in the military justice system.” Kelly, 40 M.J.
at 570.
We begin here by concurring with the Government that, “nothing in the
[r]ecord evinces the facts underlying [Cpl Galan-Perez’s or LCpl Torres’s]
charges, or the evidence presented during their trials, making meaningful
comparison impossible.” 3 However, even had Appellant met his burden, he
would still fail. Assuming without deciding that Appellant’s case is “closely
related” to those of LCpl Torres and Cpl Galan-Perez, and even that the
sentences were “highly disparate,” we nonetheless find rational bases for any
disparity.
3 Appellee’s Brief of 22 Jul 2019 at 11.
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United States v. Delnevo, NMCCA No. 201900017
First, Appellant’s charges were disposed of at a general court-martial
while LCpl Torres’s and Cpl Galan-Perez’s cases were referred to a special
court-martial. The choice of forum at which to dispose of criminal charges is
part of prosecutorial discretion, for which convening authorities are afforded
“broad discretion.” Kelly, 40 M.J. at 570.
Even were we to question the convening authority’s forum decision, the
record presented to us demonstrates that it was a reasonable one. Appellant
and Cpl Anne were far more engaged in this criminal conduct than were
LCpl Torres and Cpl Galan-Perez. Appellant was involved in this scheme
from beginning to end. He conspired with Cpl Anne to steal hundreds of
thousands of dollars in military equipment. He then conspired with Cpl Anne
to obstruct justice by destroying evidence of their misdeeds. The difference in
culpability alone is also sufficient to establish for us a “rational” reason for
Appellant’s greater sentence.
Nor do we find merit in Appellant’s contention that his sentence is highly
disparate since it was only “slightly” less than Cpl Anne’s, even though
Appellant claims Cpl Anne was the “more culpable party and . . . the admit-
ted instigator of the criminal scheme.” 4 Appellant and Cpl Anne engaged in
largely the same course of misconduct over several months, namely, stealing
or attempting to steal hundreds of thousands of dollars of government
property from the warehouse they were entrusted to secure, selling some of
that property to enrich themselves, and then conspiring to cover their tracks.
Cpl Anne, the non-commissioned officer of the two, went on to actually
obstruct justice and was sentenced to eight months more of confinement and
an additional $4,000 fine. We are therefore satisfied that Appellant was
sentenced as an individual and that the delta between his sentence and
Cpl Anne’s does not create risk to the “appearance of fairness [or] integrity” of
the military justice system. Kelly, 40 M.J. at 570.
The same factors that inform our conclusion that Appellant’s sentence is
not inproperly disparate when compared to his cohorts, guide us to the
conclusion that his sentence is not inappropriately severe. 5 The appropriate-
ness of a sentence involves “the judicial function of assuring that justice is
done and that the accused gets the punishment he deserves.” United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988). Our Court is constrained by the
4 Appellant’s Brief of 23 May 2019 at 7.
5Appellant raises the closely-related issue of sentence severity pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
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United States v. Delnevo, NMCCA No. 201900017
requirements of Article 66(c), UCMJ, that we may only affirm “the sentence,
or such part or amount of the sentence” that we find “correct in law and fact”
and that “on the basis of the entire record, should be approved.” Our analysis
requires that we consider the accused individually, and 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) (citation and
internal quotation marks omitted). Appellant engaged in a large-scale
conspiracy to steal over $300,000-worth of military property. He did so from a
position of trust, and ultimately conspired to obstruct justice in an attempt to
avoid responsibility for his actions. We find that Appellant’s sentence is
correct in fact and law, and that, after a careful review of the record, should
be approved.
III. CONCLUSION
The approved findings and sentence are correct in law and fact and no
error materially prejudicial to Appellant’s substantial rights occurred. Arts.
59, 66, UCMJ, 10 U.S.C. §§ 859, 866. Although not raised by Appellant, we
note that the court-martial order (CMO) does not accurately reflect the
disposition of all charges and specifications to which Appellant entered pleas
of not guilty. The CMO indicates that Charge I, Specification 2, and the sole
specifications under Charge IV and Charge VI were dismissed without
prejudice. However, the CMO fails to indicate that the dismissals were to
ripen into prejudice upon completion of appellate review in which the
findings and sentence have been upheld. The appellant is entitled to have
court-martial records that correctly reflect the content of his proceeding.
United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
Accordingly, the supplemental CMO shall properly reflect this disposition.
With this correction, the findings and sentence as approved by the convening
authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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