United States v. Harley

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38896
________________________
UNITED STATES
Appellee
v.
Mark W. HARLEY, Jr.
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 March 2017
________________________
Military Judge: Shelly W. Schools (sitting alone).
Approved sentence: Dishonorable discharge, confinement for 42 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 24 June 2015 by GCM convened at Kadena Air Base, Japan.
For Appellant: Major Isaac C. Kennen, USAF; Captain Annie W. Mor-
gan, USAF; Brian L. Mizer, Esquire.
For Appellee: Lieutenant Colonel Roberto Ramírez, USAF; Captain Mat-
thew L. Tusing, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge JOHNSON delivered the opinion of the Court, in which Senior
Judge MAYBERRY and Judge SPERANZA joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
JOHNSON, Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty in accordance with his pleas of one specification of possession
United States v. Harley, No. ACM 38896
of child pornography, such conduct being of a nature to bring discredit upon
the armed forces, in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. Appellant’s adjudged and approved sentence con-
sisted of a dishonorable discharge, confinement for 42 months, total forfeiture
of all pay and allowances, and reduction to E-1.
Appellant raises a single assignment of error: whether his sentence to 42
months of confinement is inappropriately severe. We find it is not, and we af-
firm the findings and sentence. 1
I. BACKGROUND
Appellant entered the Air Force in November 2012 and was assigned to
Kadena Air Base, Japan. In August 2014, Air Force Office of Special Investi-
gations (AFOSI) agents detected activity on a peer-to-peer Internet site indi-
cating someone using an account traced to Appellant was downloading sus-
pected images of child pornography. A month later, AFOSI agents obtained
and executed a search and seizure authorization, seizing several electronic me-
dia and storage devices belonging to Appellant. Analysis by the Defense Com-
puter Forensics Laboratory revealed 534 media files previously identified by
the National Center for Missing and Exploited Children as depicting child por-
nography involving known minor victims.
Prior to his court-martial, Appellant entered a pretrial agreement with the
convening authority whereby the latter agreed not to approve confinement in
excess of 42 months. The agreement contained no other limitations on the sen-
tence the convening authority could approve.
II. DISCUSSION
A. Standard of Review
We review 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 appropriateness
by considering the particular appellant, the nature and seriousness of the of-
1 This court specified an additional issue for the parties to brief related to files missing
from a disk included as a sealed prosecution exhibit in the court’s copy of the record of
trial. The issue was ultimately resolved when the military judge accomplished a cer-
tificate of correction in accordance with Rule for Courts-Martial 1104(d) and does not
require further discussion here.
2
United States v. Harley, No. ACM 38896
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). While we have a great deal of discretion in determining whether a par-
ticular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010).
B. Analysis
Appellant contends that, as a general proposition, 42 months of confine-
ment is inappropriately severe for a first-time offender convicted of possession
of child pornography not involving production of such material or any other
offense. He points to several opinions from the civilian federal judiciary as well
as various articles and reports questioning the propriety of the sentencing re-
gime for child pornography offenders in the civilian federal courts. In Appel-
lant’s opinion, his case is toward the lower end of the spectrum of severity of
child pornography offenders because it does not involve active participation in
an online community of offenders, other sexual offenses involving children, or
thousands of known images of child pornography as seen in some other cases.
Therefore, Appellant contends this court should approve only 24 months of con-
finement.
We disagree, but we first address one of the arguments advanced by the
Government in opposition to Appellant’s claim of error. The Government points
to Appellant’s pretrial agreement, asking “What is the point of a convening
authority and an accused negotiating a pretrial agreement if the accused is
simply going to later complain to this Court when the accused gets what he
bargained for with the [G]overnment?” The Government contends Appellant is
requesting that this court “usurp” the powers of the convening authority. The
Government appears to misconceive the nature and “point” of the pretrial
agreement. A pretrial agreement is an agreement that the accused and the
convening authority will perform the specified terms; it is not necessarily an
agreement by an accused that he or she deserves a particular sentence. Nor
can it or should it constrain this court from assessing whether an adjudged and
approved sentence is in fact appropriate in light of evidence adduced at a trial
that had not yet occurred and a record that did not yet exist at the time the
agreement was made. See 10 U.S.C. § 866(c). The existence of such an agree-
ment may be considered as part of the totality of the circumstances surround-
ing a particular case, but it is hardly dispositive of sentence appropriateness.
Nevertheless, we do not find Appellant’s sentence to be inappropriately se-
vere. Appellant possessed over 500 depictions of child pornography involving
known victims. The child pornography at issue in this case included various
types of explicit and severe sexual abuse of very young children. Appellant spe-
cifically sought out such material on the Internet and collected it in files orga-
nized by category. Appellant faced a maximum term of confinement of ten
3
United States v. Harley, No. ACM 38896
years; he was sentenced to just over a third of that amount. After giving indi-
vidualized consideration to Appellant, his record of service, the nature and se-
verity of the offense, and all other matters contained in the record of trial, we
cannot say the approved sentence is inappropriately severe.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
4