United States v. Sergeant RANDY L. SIMPSON, JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant RANDY L. SIMPSON, JR.
United States Army, Appellant
ARMY 20140126
Headquarters, I Corps
Jeffery D. Lippert and David L. Conn, Military Judges
Lieutenant Colonel Christopher A. Kennebeck, Acting Staff Judge Advocate
For Appellant: Major Todd W. Simpson, JA; Captain Joshua B. Fix, JA (on brief on
second remand).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Marc B. Sawyer, JA (on brief on second remand).
17 May 2018
-----------------------------------------------------------------
SUMMARY DISPOSITION ON FURTHER REMAND
-----------------------------------------------------------------
Per Curiam:
This case is again before this court under Article 66, Uniform Code of
Military Justice, 10 U.S.C. §§866 (2012) [UCMJ], for a sentence reassessment
following a further remand from the Court of Appeals for the Armed Forces (CAAF).
When we first saw this case, we summarily affirmed appellant’s conviction
for larceny and conspiracy to commit larceny and the sentence. United States v.
Simpson, ARMY 20120126 (Army Ct. Crim. App. 18 Dec. 2015). The CAAF
subsequently remanded this case for consideration of whether the military judge
abused his discretion in accepting appellant’s plea by failing to establish a sufficient
factual basis that Credit First National Association (CFNA) was the victim of
appellant’s offenses. United States v. Simpson, 75 M.J. 371 (C.A.A.F. 2016)
(order). We determined that JPMorgan Chase, not CFNA, should have been charged
as the victim of appellant’s misdeeds and, accordingly, set aside the findings of
guilty and sentence. United States v. Simpson, ARMY 20140126, 2017 CCA LEXIS
132 (Army Ct. Crim. App. 1 Mar. 2017) (mem. op.). On 19 March 2018, the CAAF
SIMPSON—ARMY 20140126
reversed in part and affirmed in part, and returned this case for a sentence
reassessment. United States v. Simpson, __ M.J. __, 2018 CAAF LEXIS 176, *13
(C.A.A.F. 19 Mar. 2018). The CAAF, while agreeing with this court that CFNA was
not the proper victim of a larceny, nonetheless upheld the conviction for conspiracy,
reasoning that this was an inchoate offense, completed upon appellant’s agreement
with his co-actor to use CFNA funds to pay personal debts. Id. at *11-*12 For
similar reasons, the CAAF agreed with this court in setting aside appellant’s larceny
conviction, but affirmed a finding of guilty as to the lesser offense of attempted
larceny. Id. at *12-*13.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In
evaluating the Winckelmann factors, we first find there is no change in the penalty
landscape that might cause us pause in reassessing appellant’s sentence.
Additionally, appellant was tried and sentenced at a general court-martial by a
military judge and the nature of the offenses after the CAAF’s decision, still
captures the gravamen of the original offenses and the circumstances surrounding
appellant’s conduct. Finally, based on our experience, we are familiar with the
offenses affirmed by the CAAF so that we may reliably determine what sentence
would have been imposed at trial. We are confident that based on the entire record
and appellant’s course of conduct, the military judge would have imposed a sentence
of at least that which was adjudged.
Reassessing the sentence based on the noted errors and entire record, we
AFFIRM the sentence as adjudged.
CONCLUSION
We do not take any action on the findings of guilty in this case in light of
CAAF’s decision. The sentence is AFFIRMED. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the findings set
aside by the CAAF’s decision are ordered restored.
FORTHE
FOR THECOURT:
COURT:
JOHN P. TAITT
Chief
JOHN Deputy Clerk of Court
P. TAITT
2