United States v. DELGADO ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Ignacio DELGADO
Hospital Corpsman Third Class (E-4), U.S. Navy
Appellant
No. 201900065
_________________________
Decided: 8 December 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Roger E. Mattioli
Sentence adjudged 6 January 2020 by a general court-martial con-
vened at Washington Navy Yard, District of Columbia, consisting of a
military judge sitting alone. Sentence approved by the Convening Au-
thority: reduction to E-1, forfeiture of all pay and allowances, confine-
ment for seven years, and a dishonorable discharge. 1
For Appellant:
Lieutenant Michael W. Wester, JAGC, USN
1 The convening authority suspended confinement in excess of four years pursu-
ant to a pretrial agreement.
United States v. Delgado, NMCCA No. 201900065
Opinion of the Court
For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN
Major Clayton L. Wiggins, 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 sexual abuse of a child
in violation of Article 120b, Uniform Code of Military Justice [UCMJ]. 2 He
asserts two assignments of error: (1) his sentence was rendered inappropri-
ately severe when the Government required him to spend 30 days in segre-
gated confinement; and (2) his due process right to speedy appellate review
was violated when the Government took 46 days to docket his case with this
Court after the convening authority’s action.
We find no prejudicial error and affirm.
I. BACKGROUND
In January 2018, Appellant confessed to his psychotherapist that he had
sexually abused his daughter. Appellant said he caused his daughter, who
was between 18 and 21 months of age at the time of the abuse, to touch his
penis with her hands on at least three occasions in order to sexually arouse
himself. Appellant’s psychotherapist, as required by state law, informed
Maryland Child Protective Services of the abuse. The case was investigated,
and Appellant was charged with sexual abuse of a child.
At trial, Appellant moved to suppress his confession. The military judge
ruled the confession inadmissible under Military Rule of Evidence [Mil. R.
Evid.] 304(c). The Government appealed the military judge’s ruling to this
Court under Article 62, UCMJ. We vacated the military judge’s ruling, which
2 10 U.S.C. § 920b (2012).
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United States v. Delgado, NMCCA No. 201900065
Opinion of the Court
had applied an incorrect legal standard. 3 Upon remand, the military judge
ruled that Appellant’s confession was admissible. Appellant subsequently
pleaded guilty to sexually abusing his daughter.
A. Appellant’s Confinement
On 6 January 2020, after his guilty plea and sentencing, Appellant was
initially confined at Naval Consolidated Brig Charleston, Detachment Ches-
apeake, a Level 1 military confinement facility [MCF]. Upon arriving at the
MCF, Appellant was processed to determine his classification level. Based on
the administrative and management factors used by the MCF staff, Appel-
lant was initially screened as a medium security prisoner. However, the
Command Duty Officer [CDO] performing the screening decided to override
this initial classification due to the length of Appellant’s sentence and classi-
fied him as a maximum security prisoner. As a result, Appellant was placed
in segregated confinement away from general-population prisoners.
Within the segregated confinement section of the MCF, there were multi-
ple cells, at least two of which were occupied for most of Appellant’s time
there. Thus, he was able to converse with other prisoners in segregated
confinement while each of them remained in their respective cells. For only a
few of Appellant’s 30 days in segregated confinement was he the only person
in that section. He does not allege that he was denied life's necessities during
this period. In addition, he was permitted to have visitors, watch television,
and avail himself of telephone privileges.
On 14 January 2020, Appellant petitioned the Officer-in-Charge [OIC] of
the MCF to be removed from segregated confinement, which he described as
“solitary confinement.” His request was denied. He then filed an Article 138,
UCMJ, complaint against the OIC of the MCF, which was also denied. In
denying Appellant’s complaint, Commander, Navy Personnel Command,
explained that a complaint against the general policies of the Navy is not a
proper complaint under Article 138 and that prisoner classification levels are
based on a totality of information and regularly reviewed at multiple levels.
Appellant remained in segregated confinement for 30 days until his transfer
to Naval Consolidated Brig Miramar, California, on 7 February 2020.
3 United States v. Delgado, No. 2019000065, 2019 CCA LEXIS 314 (N-M Ct.
Crim. App. July 31, 2019) (unpublished) [Delgado I].
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Opinion of the Court
B. Delay in Docketing Appellant’s Case with This Court
The convening authority acted on Appellant’s sentence on 4 May 2020,
119 days after Appellant’s trial. On 7 May 2020, the record of trial was
delivered to the Navy-Marine Corps Appellate Review Activity, Administra-
tive Support Division (Code 40). On 19 June 2020, 46 days after the conven-
ing authority took action, the case was docketed with this Court.
II. DISCUSSION
A. Appellant’s Sentence Is Not Inappropriately Severe
Appellant alleges that his sentence was rendered inappropriately severe
when he had to spend 30 days in segregated confinement at the initial MCF
while awaiting transfer to another facility. He does not claim his placement
in segregated confinement violated the Eighth Amendment or Article 55,
UCMJ. Rather, he argues the Government lacked a legitimate reason to place
him in segregated confinement and asks us to exercise our authority under
Article 66(c), UCMJ, to approve a reduced sentence based upon his post-trial
confinement conditions. 4
1. Standard of Review and the Law
This Court “may affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be approved.” 5 Article
66(d)’s “sentence appropriateness provision is a sweeping [c]ongressional
mandate to ensure a fair and just punishment for every accused.” 6 This
analysis requires “‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the character of the
offender.’” 7 “Sentence appropriateness involves the judicial function of assur-
4 See United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016) (holding a court of
criminal appeals “did not abuse its discretion when it exercised its Article 66(c)
sentence reassessment authority for post-trial confinement conditions despite its
conclusion that the conditions did not rise to a violation of the Eighth Amendment or
Article 55”).
5 Article 66(d), UCMJ.
6 United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (internal quotations
omitted).
7 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States
v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)).
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ing that justice is done and that the accused gets the punishment he de-
serves.” 8 Confinement conditions may very well alter an accused’s punish-
ment into something worse than he deserves. 9
While we “review sentence appropriateness de novo,” 10 we do not have
“the ability to grant mercy.” 11 Nor do we have the “unlimited authority . . . to
grant sentence appropriateness relief for any conditions of post-trial confine-
ment of which [we] disapprove.” 12
2. Administrative Remedies
A prisoner “must seek administrative relief prior to invoking judicial in-
tervention to redress concerns regarding post-trial confinement conditions.” 13
A prisoner, absent “unusual or egregious circumstance,” must demonstrate he
has (1) “exhausted the prisoner-grievance system” and (2) “petitioned for
relief under Article 138, UCMJ.” 14 In this case, the Government concedes
that Appellant exhausted his administrative remedies before seeking judicial
intervention.
3. Analysis
Appellant acknowledges that the Department of the Navy Corrections
Manual 15 includes criteria for overriding the initial classification score, but
argues that the Government’s reasons for placing Appellant in segregated
confinement failed to satisfy its own regulation. We disagree.
8 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
9 United States v. White, 54 M.J. 469, 475 (Sullivan, J., concurring) (“I am heart-
ened that this Court has finally and squarely held in this case and also in United
States v. Erby, 54 M.J. 476 (C.A.A.F. 2001), that the lower courts have the duty and
the jurisdiction to review whether the sentence imposed by a court-martial is being
unlawfully increased by prison officials.”).
10 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
11 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citing United States
v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998)) (internal quotations omitted).
12 Gay, 75 M.J. at 269.
13 United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007) (citing White, 54 M.J at
472).
14 White, 54 M.J. at 472 (citation and internal quotation marks omitted).
15 Sec’y of the Navy Man. 1640.1, Department of the Navy Corrections Manual,
(May 15, 2019) [SECNAVMAN 1640.1].
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Opinion of the Court
The Department of the Navy Corrections Manual explicitly identifies cri-
teria for overriding the initial classification score. 16 The manual also requires
that when a prisoner is placed in segregated confinement he must have his
case reviewed within 72 hours, and at least every seven days for the first 60
days spent in segregation. 17 The record in this case demonstrates that the
MCF correctly followed the appropriate instructions when initially and
temporarily placing Appellant in segregated confinement, and in keeping him
in such confinement upon repeated reviews of his case. 18 Appellant may
disagree with the MCF’s actions, but he has not demonstrated that the MCF
staff failed to act in accordance with the applicable instruction or that they
acted with any ill motive to increase his sentence beyond the punishment he
deserves. Like our superior court, “[w]e are reluctant to second-guess the
security determinations of confinement officials.” 19
We conclude that Appellant’s sentence was not rendered inappropriately
severe when he spent 30 days in segregated confinement, and he is not
entitled to relief.
B. Appellant Was Not Denied Speedy Appellate Review
Convicted servicemembers have a constitutional “due process right to
timely review and appeal of courts-martial convictions.” 20 As it is a matter of
16 SECNAVMAN 1640.1, para. 4202.5 (discussing that factors to consider in as-
sessing whether to override the objective-based classification system include length
of sentence, whether the prisoner is awaiting transfer, and whether the sentence
length exceeds the designated length of confinement authorized at the MCF).
17 SECNAVMAN 1640.1, para. 4205.4.
18 Appellee’s Motion to Attach, dtd 25 May 2021, Appendix A-C, “Status Review I,
Jan 7 2020; Status Review II, Jan 13, 2020; Status Review III, Jan. 22, 2020; Status
Review IV, Jan. 27, 2020.”
19 United States v. King, 61 M.J. 225, 228 (C.A.A.F. 2005) (finding that King’s
classification as a maximum security prisoner during pre-trial confinement was not
so egregious as to give rise to any inference of intent to punish, nor were the condi-
tions of his confinement that resulted from his classification so excessive as to
amount to punishment).
20 United States v. Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013) (quoting United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)); see also Diaz, 59 M.J. at 37–38.
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law, we review de novo whether an appellant has been denied his due process
right to a speedy appellate review. 21
In United States v. Moreno, our superior court adopted the following four-
factor balancing test from Barker v. Wingo 22 to determine whether the post-
trial delay constitutes a due process violation: “(1) the length of the delay;
(2) the reasons for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice.” 23 No single Moreno factor is
required, but a facially unreasonable length of delay triggers the full due
process analysis. 24 We recognize that none of the four factors has any “talis-
manic power. Rather, we must . . . weigh all the factors collectively before
deciding whether [an accused’s] right to a speedy [post-trial processing] has
been violated.” 25 “If we conclude that an appellant has been denied the due
process right to speedy post-trial review and appeal, we grant relief unless
this court is convinced beyond a reasonable doubt that the constitutional
error is harmless.” 26
1. Length of Delay
The Government took 46 days to docket this case after the Convening Au-
thority took action on the sentence. We presume delay is facially unreasona-
ble whenever, inter alia, “the record of trial is not docketed by [this Court]
21 United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011) (citing Moreno, 63 M.J.
at 135).
22 Barker v. Wingo, 407 U.S. 514, 530 (1972).
23 Moreno, 63 M.J. at 142. This Court recently explained in United States v. Rive-
ra, 81 M.J. 741, 745 (N-M Ct. Crim. App. 2021), that Military Justice Act of 2016
[MJA 16], Pub. L. No. 114-328, § 5324, 130 Stat. 2000, 2927 (codified at 10 U.S.C.
§ 860c (2018)), superseded the Moreno I and II timelines but left untouched the
Moreno III timeline, and we also discussed new post-trial timelines as promulgated
in Dep’t of the Navy, Judge Advocate General / Cmdr. Navy Legal Service Cmd.
Instr. 5814.1D, Post-Trial Processing, (Sep. 6, 2019)). Although Appellant pleaded
guilty after the effective date of MJA 16, the pre-MJA 16 post-trial procedures are
still applicable in this case because the charged misconduct and original referral
occurred prior to the effective date of MJA 16.
24 Moreno, 63 M.J. at 136.
25 United States v. Wilson, 72 M.J. 347, 354–55 (C.A.A.F. 2013).
26 United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006) (citation and internal
quotation marks omitted).
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within thirty days of the convening authority’s action.” 27 We conclude that
this factor favors Appellant and triggers a full analysis of the Barker factors.
2. Reasons for the Delay
The Government may overcome the presumption of unreasonable delay by
providing legitimate reasons for the delay. 28 Generally, “personnel and
administrative issues . . . are not legitimate reasons for justifying otherwise
unreasonable delay.” 29 In this case, the primary reason for delay was reduced
staffing at Code 40 resulting from the COVID-19 pandemic and the public
health measures implemented to prevent the spread of COVID-19. Thus, the
delay was not the result of bad faith, negligence, or institutional neglect.
While we do not believe that COVID-19 makes any length of delay reasonable
per se, we recognize that events outside the Government’s control contributed
to the delay. We conclude that this factor marginally favors the Government.
3. Demand for Speedy Trial
“[W]here the [appellant] has asserted his speedy trial right, it is ‘entitled
to strong evidentiary weight in determining whether the [appellant] is being
deprived of the right.’” 30 Appellant did not assert his right to speedy appellate
review until he submitted his brief to this Court. We conclude that Appel-
lant’s failure to assert his right to speedy review weighs against him, but only
slightly, “given that the primary responsibility for speedy processing rests
with the Government.” 31
4. Prejudice to Appellant
Having resolved the first three Moreno factors, we turn now to the fourth
factor of prejudice, which we assess “in light of the interests of those convict-
ed of crimes to an appeal of their convictions unencumbered by excessive
delay.” 32 We consider three sub-factors in this assessment: “(1) prevention of
oppressive incarceration pending appeal; (2) minimization of anxiety and
27 Moreno, 63 M.J. at 142.
28 Arriaga, 70 M.J. at 57.
29 Arriaga, 70 M.J. at 57.
30 Moreno, 63 M.J. at 138 (quoting Barker, 407 U.S. at 531-32).
31 Moreno, 63 M.J. at 138.
32 Arriaga, 70 M.J. at 57 (quoting Moreno, 63 M.J. at 138) (additional citation and
internal quotation marks omitted).
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concern of those convicted awaiting the outcome of their appeals; and
(3) limitation of the possibility that a convicted person’s grounds for appeal,
and his or her defenses in case of reversal and retrial, might be impaired.” 33
Appellant does not argue prejudice under the three factors listed above.
Instead, he argues that this Court should grant relief in the absence of actual
prejudice because relief is warranted under the circumstances. 34 He argues
that the delay in docketing combined with his time spent in segregated
confinement favor granting relief. We disagree. As explained above, the delay
in docketing due to the COVID-19 pandemic was marginally reasonable due
to those immediate circumstances, and Appellant’s time in segregated con-
finement was not inappropriate. Thus, Appellant has failed to establish that
he was prejudiced in any way by the delay in this case, and this factor weighs
against Appellant.
Balancing these factors, we conclude that Appellant was not denied his
due process right to speedy appellate review.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. 35 The findings and sentence as approved by the conven-
ing authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
33 Moreno, 63 M.J. at 138–39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8
(5th Cir. 1980)).
34 See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (holding that mil-
itary courts of criminal appeals have the authority under Article 66(c) to grant relief
for excessive post-trial delay without a showing of actual prejudice when appropriate
under the circumstances).
35 Articles 59 & 66, UCMJ.
9