United States v. Sabillo

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Technical Sergeant GLENN S. SABILLO
United States Air Force
ACM 38807
30 June 2016
Sentence adjudged 21 January 2015 by GCM convened at Travis Air Force
Base, California. Military Judge: Jill M. Thomas (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 24 months,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for Appellant: Major Michael A. Schrama.
Appellate Counsel for the United States: Captain Tyler B. Musselman and
Gerald R. Bruce, Esquire.
Before
ALLRED, MITCHELL, and MAYBERRY
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.
ALLRED, Chief Judge:
At a general court-martial composed of military judge alone, Appellant was
convicted, in accordance with his pleas, of two specifications of possessing child
pornography and one specification of viewing child pornography, in violation of Article
134, UCMJ, 10 U.S.C. § 934. The court sentenced Appellant to a bad-conduct discharge,
confinement for 24 months, forfeiture of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence as adjudged. 1
Before us, Appellant claims: (1) his conviction of three specifications involving
child pornography is unreasonable, and the offenses should be merged; and (2) his sentence
is unduly severe. Finding no error materially prejudicial to the substantial rights of
Appellant, we affirm.
Background
According to the record of trial, Appellant first encountered child pornography in
2004, while searching for adult pornography. On that occasion, he viewed a video of a
male adult and a female child engaging in a sexual act, and he became curious and aroused.
After this, Appellant used peer-to-peer file sharing programs to access both child and adult
pornography. From 14 October 2009 to 10 July 2013, Appellant downloaded and viewed
on his personal computer sexually explicit images and videos of children with a frequency
that ranged from daily to a few times per month.
Merger of Allegations
Effective 12 January 2012, the Manual for Courts-Martial expressly addressed the
offenses of possessing, receiving, viewing, and distributing child pornography. Prior to
that date, child pornography had been recognized as an offense under clause 1 or 2 of
Article 134, UCMJ, or under clause 3 as an assimilated crime under 18 U.S.C. § 2251. 2
The Additional Charge in this case mirrors that change. That is, Specification 1 of the
Additional Charge alleges that Appellant possessed child pornography before the Manual
change—namely, between on or about 14 October 2009 and 11 January 2012. And
Specification 2 of the Additional Charge alleges that Appellant possessed child
pornography after the change—between 12 January 2012 and on or about 10 July 2013.
The remaining allegation (Specification 1 of the Charge) alleges that Appellant viewed
1
Pursuant to a pretrial agreement, the Government withdrew and dismissed one specification alleging distribution of
child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 134, upon the military judge’s finding Appellant
guilty of the three remaining offenses.
2
The Manual for Courts-Martial, Analysis of Punitive Articles, states:
2012 Amendment: This offense [child pornography] is new to the Manual for
Courts-Martial. It is generally based on 18 U.S.C. §2252A, as well as military
custom and regulation. The possession, receipt, distribution and viewing of child
pornography has been recognized as an offense under clause 1 or 2 of Article 134,
or under clause 3 as an assimilated crime under 18 U.S.C. § 2251. This offense
was added by Executive Order 13593, signed 13 December 2011. See Appendix
25. This paragraph applies to offenses committed on or after 12 January 2012.
Manual for Courts-Martial, United States, app. 23 at A23-22 (2012 ed.).
2 ACM 38807
child pornography between on or about 5 February 2013 and on or about 10 July 2013.
Before us, Appellant now argues it is unreasonable that he stand convicted of the three
offenses in question and they should be merged.
Appellant voluntarily entered a pretrial agreement in which the convening authority
promised to limit any confinement to 36 months and to withdraw and dismiss the
specification alleging wrongful distribution of child pornography. In exchange, Appellant
agreed to plead guilty to the offenses of which he now stands convicted. He also agreed,
inter alia, to “[w]aive all waivable motions.” At trial, the military judge addressed this
waiver provision on the record. Appellant’s counsel declared that the Defense was
specifically waiving any motion “based upon unreasonable multiplication of charges for
sentencing purposes on the additional charges being broken up the way they are.”
Appellant then acknowledged that he was indeed waiving any such motion.
Appellant now concedes that he has “waived the ability to directly assert an
unreasonable multiplication of charges either at trial or now on appeal.” Nevertheless, he
invites this court to override his waiver by exercising “the broad power entrusted to it by
Congress in Article 66(c), UCMJ, to determine whether the findings in this case are
reasonable.” We decline to accept this invitation.
We agree with Appellant that he has waived the right to assert his claim of
unreasonable multiplication of charges. See United States v. Gladue, 67 M.J. 311, 313–14
(C.A.A.F 2009) (holding the appellant’s express waiver extinguished his ability to raise
the issue of unreasonable multiplication of charges on appeal). We do not, however, agree
that granting Appellant’s present claim would be a proper exercise of our authority under
Article 66, UCMJ, 10 U.S.C. § 866.
Sentence Severity
Repeating the claim that his conviction involves an unreasonable multiplication of
charges and arguing that it “reflects triple punishment for what was actually one continuous
transaction of possessing and viewing child pornography,” Appellant contends his sentence
is unduly severe. 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, 384–85 (C.A.A.F. 2005) (quoting United States v. Bauerbach,
55 M.J. 501, 504 (Army Ct. Crim. App. 2001)).
We have given individualized 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. We find the sentence was appropriate in this case and was
not inappropriately severe.
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Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially 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 approved findings and
sentence are AFFIRMED.
FOR THE COURT
LAQUITTA J. SMITH
Appellate Paralegal Specialist
4 ACM 38807