United States v. Chenard

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class SHAUN M. CHENARD
United States Air Force
ACM S32246
30 April 2015
Sentence adjudged 1 April 2014 by SPCM convened at Schriever
Air Force Base, Colorado. Military Judge: Christopher Schumann
(sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 3 months,
forfeiture of $1021.00 pay per month for 3 months, and reduction to E-1.
Appellate Counsel for the Appellant: Major Anthony D. Ortiz.
Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;
Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and TELLER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
PER CURIAM:
Consistent with his pleas, the appellant was convicted at a special court-martial of
wrongful use of cocaine, in violation of Article 112a, UCMJ, 10 U.S.C. §§ 912a. Officer
members sentenced him to a bad-conduct discharge, confinement for 3 months, forfeiture
of $1,012.00 pay per month for 3 months, and reduction to E-1. The convening authority
approved the sentence as adjudged.
On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
appellant contends his sentence is inappropriately severe. Finding no error that
materially prejudices a substantial right of the appellant, we affirm the findings and
sentence.
Background
While alone at a nightclub sometime in September 2013, the appellant declined an
offer to purchase cocaine from other patrons. Later in the evening, he encountered these
men using cocaine in the bathroom and accepted their offer to snort several lines. His
urine tested positive during a subsequent random urinalysis conducted on
20 September 2013. The appellant again ingested cocaine, this time in pill form while at
another nightclub in October 2013. A second urinalysis performed on 10 October 2013
was again positive for cocaine. Both test results indicated the presence of the cocaine
metabolite at well above the Department of Defense cut-off level for cocaine.
Sentence Appropriateness
This court “may affirm only . . . 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.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review
sentence appropriateness de novo, employing “a sweeping Congressional mandate to
ensure ‘a fair and just punishment for every accused.’” United States v. Baier,
60 M.J. 382, 384 (C.A.A.F. 2005) (citations omitted). “We assess sentence
appropriateness by considering the particular appellant, the nature and seriousness of the
offenses, the appellant’s record of service, and all matters contained in the record of
trial.” United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J.
35 (C.A.A.F. 2007).
The appellant asks that this court find his bad-conduct discharge inappropriately
severe in light of a serious on-duty injury he suffered prior to his trial. He points out that
the military judge who presided over the appellant’s court-martial provided a clemency
letter indicating his view that the bad-conduct discharge was too severe given the facts of
the appellant’s case, his decision to plead guilty without a pretrial agreement, the severe
injury1 he suffered while working for the Air Force, the loss of medical treatment for that
injury resulting from a punitive discharge, and the appellant’s helpful testimony in a
sexual assault case.
1
On 21 October 2013, the appellant, a member of the Civil Engineer Squadron, was involved in a workplace
accident while making a clock for the squadron’s traditional going-away gift for a departing member. While the
appellant was guiding a piece of wood into a table saw, his left hand became caught and four of the fingers were
severed. Co-workers administered immediate first aid and retrieved the fingers. The appellant was flown to a
Denver hospital for emergency surgery but the effort to reattach the fingers was unsuccessful. Following a safety
investigation, the squadron no longer makes circular items on the table saw.
2 ACM S32246
Like the military judge, we are sympathetic towards the appellant for the horrific
injury he suffered. However, we find this circumstance sounds in clemency, which is not
the province of this court. Although we have a great deal of discretion in determining
whether a particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).
We have considered the entire record of trial, including the appellant’s unsworn
statement, his enlisted performance reports, the defense exhibits submitted at trial, and
the matters submitted during clemency. We also considered the facts of the offense to
which the appellant pled guilty and all other properly admitted matters, including the
appellant’s disciplinary record which includes a letter of reprimand for driving under the
influence in May 2013 and two letters of counseling for failing to report to his duty
section in a timely manner. Based on the review of the entire record of trial, we have
determined that the adjudged and approved sentence is not inappropriately severe.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
3 ACM S32246