United States v. Willingham

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
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No. ACM S32403
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UNITED STATES
Appellee
v.
Trevor D. WILLINGHAM
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 20 July 2017
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Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 45 days, and re-
duction to E-1. Sentence adjudged 8 March 2016 by SpCM convened at Barks-
dale Air Force Base, Louisiana.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Gerald R. Bruce, Esquire.
Before MAYBERRY, KIEFER, and C. BROWN, Appellate Military Judges.
Judge KIEFER delivered the opinion of the court, in which Senior Judge MAY-
BERRY and Judge C. BROWN joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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KIEFER, Judge:
A special court-martial consisting of a military judge sitting alone convicted
Appellant, pursuant to his pleas and a pretrial agreement (PTA), of wrongful
use of cocaine and divers wrongful use of oxycodone, in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The military
judge sentenced Appellant to a bad-conduct discharge, confinement for 45
United States v. Willingham, No. ACM S32403
days, and reduction to the grade of E-1. The convening authority approved the
sentence as adjudged, but deferred automatic forfeitures for the benefit of Ap-
pellant’s dependents. 1 Appellant alleges that his sentence was inappropriately
severe.
I. BACKGROUND
Appellant was involved in an automobile accident on 29 November 2015.
He claims he was injured in the accident and experienced pain in his hand,
neck, and back. On 1 December 2015, Appellant’s wife gave him one of her
prescription oxycodone pills for his pain. Appellant placed the pill in his mouth
and swallowed it. That same evening Appellant and his wife went to a local
strip club in Bossier City, Louisiana. While at the club, a dancer offered Appel-
lant cocaine. Appellant accepted the cocaine and snorted two lines of the drug
through his nose.
On 2 December 2015, before leaving his home to report for duty, Appellant
again ingested one of his wife’s oxycodone tablets. Later that day, Appellant
was selected to provide a urine sample as part of a random inspection. This
sample tested positive for a metabolite of cocaine, oxycodone, and oxy-
morphone.
Appellant alleges that his approved sentence of a bad-conduct discharge,
45 days of confinement, and reduction to the grade of E-1 is inappropriately
severe. We disagree.
II. DISCUSSION: SENTENCE SEVERITY
This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We may “affirm only such findings of guilty,
and the sentence or such part or amount of the sentence, as [we find] correct
in law and fact and determine[ ], on the basis of the entire record, should be
approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appro-
priateness by considering the particular appellant, the nature and seriousness
of the offense[s], the appellant’s record of service, and all matters contained in
the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim.
App. 2009). Although we are accorded great discretion in determining whether
a particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
Here, Appellant was convicted of using controlled substances on multiple
occasions. He accepted these controlled substances from a stranger and his
wife and knowingly ingested them. One wrongful use was just prior to leaving
1 Pursuant to Articles 57a. and 58b, UCMJ, 10 U.S.C. §§ 857a, 858b.
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United States v. Willingham, No. ACM S32403
for work. At trial, both the Government and Appellant offered portions of his
service record, which included several strong enlisted performance reports and
evidence of three deployments. Appellant’s service record also included nonju-
dicial punishment for choking his wife. Finally, Appellant offered character
letters and other evidence in extenuation and mitigation.
The maximum authorized sentence for Appellant’s offenses was the juris-
dictional limit of a special court-martial. Appellant negotiated a pretrial agree-
ment which limited the convening authority’s approval of confinement to four
months, but imposed no other sentence limitations. We have given individual-
ized consideration to this particular appellant, the nature and seriousness of
the offenses, Appellant’s record of service, and all other matters contained in
the record of trial. Appellant cites numerous military awards, his excellent per-
formance reports, and his deployment record to support his argument that a
bad-conduct discharge is not appropriate in his case. While certain aspects of
Appellant’s military record are very favorable, they must be balanced against
the negative aspects, including the nonjudicial punishment for choking his
spouse, as well as the seriousness of the offenses. We find the approved sen-
tence of a bad-conduct discharge, 45 days of confinement, and reduction to the
grade of E-1 is not inappropriately severe based on the facts of this case.
III. CONCLUSION
The findings and the sentence are correct in law and fact, and no error ma-
terially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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