United States v. Silvers

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39963
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UNITED STATES
Appellee
v.
Sebastian A. SILVERS
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 17 December 2021
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Military Judge: Colin P. Eichenberger (arraignment); Jennifer E. Pow-
ell (trial); Andrew R. Norton (post-trial).
Sentence: Sentence adjudged on 24 July 2020 by GCM convened at Joint
Base Lewis-McChord, Washington. Sentence entered by military judge
on 15 September 2020: Dishonorable discharge, confinement for 36
months, forfeiture of all pay and allowances, reduction to E-1, and a
reprimand.
For Appellant: Major Benjamin H. DeYoung, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Mary Ellen
Payne, Esquire.
Before POSCH, RICHARDSON, and ANNEXSTAD, Appellate Military
Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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PER CURIAM:
In accordance with his pleas and pursuant to a plea agreement, Appellant
was convicted of one specification each of possessing child pornography, dis-
United States v. Silvers, No. ACM 39963
tributing child pornography, and communicating indecent language, all in vi-
olation of Article 134, UCMJ, 10 U.S.C. § 934.* A general court-martial com-
posed of a military judge alone sentenced Appellant to a dishonorable dis-
charge, confinement for 36 months, forfeiture of all pay and allowances, reduc-
tion to the grade of E-1, and a reprimand. The maximum punishment based on
the offenses included a dishonorable discharge and over 30 years’ confinement.
The plea agreement with Appellant required the military judge to adjudge no
more than 36 months’ confinement for each child pornography specification,
and no more than 6 months’ confinement for the indecent language specifica-
tion, with periods of confinement running concurrently. The convening author-
ity took no action on the sentence, denied Appellant’s request for deferral of
forfeitures and reduction in grade, and provided the language of the repri-
mand.
This case was submitted for our review on its merits. We address the effect
of the convening authority taking “no action” on the sentence when Appellant
was convicted of conduct that occurred before 1 January 2019, specifically in-
decent language communicated in 2018.
Appellant’s sole post-trial request to the convening authority, dated 3 Au-
gust 2020, was to defer reduction in grade and adjudged forfeitures until entry
of judgment, then reduce, commute, or suspend them in whole or in part. In a
staff judge advocate recommendation (SJAR), dated 5 August 2020, the staff
judge advocate (SJA) accurately advised the convening authority of this re-
quest. The SJA informed the convening authority of the adjudged sentence,
and reminded him of the terms of the plea agreement. Finally, the SJA pro-
vided the following advice and recommendation:
6. Pursuant to Articles 60, 60a and 60b, UCMJ[,] and RCM 1109
[(2016 MCM)], you have the authority to reduce, commute, or
suspend, in whole or in part, that portion of the sentence that
includes forfeitures, reduction in rank, and a reprimand. You do
not have the authority to dismiss the finding of guilty or change
the finding of guilt to that of a lesser-included offense.
7. The sentence adjudged is appropriate for the offenses for
which the Accused was convicted. I recommend you take no fur-
ther action on the findings or sentence in this case.
* The specifications cover the time period from 24 April 2018 to 3 October 2019; there-
fore, references to the punitive articles of the UCMJ are to the Manual for Courts-
Martial, United States (2016 ed.) (2016 MCM) and Manual for Courts-Martial, United
States (2019 ed.) (2019 MCM). Unless otherwise noted, all other references to the
UCMJ and Rules for Courts-Martial are to the 2019 MCM.
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United States v. Silvers, No. ACM 39963
Appellant’s counsel notified the SJA on 21 August 2020 that neither she
nor Appellant would be submitting a response to the SJAR. On 31 August
2020, the acting SJA penned an addendum to the SJAR, stating the earlier
recommendation did not change, and recommending the convening authority
“take no further action on the findings or sentence in this case.”
In his Decision on Action memorandum, the convening authority stated, “I
take no action on the sentence in this case.” He also stated, “I take no action
on the requested deferment, reduction, commutation, or suspension of the re-
duction in grade. I take no action on the requested deferment of forfeitures.”
The convening authority asserted that he consulted with his SJA and consid-
ered the matters submitted by Appellant.
After the conclusion of his court-martial, Appellant did not raise a motion
under Rule for Courts-Martial 1104(b)(2)(B) to challenge the form or legality
of the convening authority’s decision on action, nor has Appellant asserted on
appeal that the convening authority erred in taking no action on Appellant’s
sentence.
At the time the convening authority signed the Decision on Action memo-
randum in this case, Air Force Instruction (AFI) 51-201, Administration of Mil-
itary Justice, Section 13D (18 Jan. 2019), advised Air Force convening author-
ities to grant relief as circumscribed by the applicable version of Article 60,
UCMJ. For a case involving at least one convicted offense committed between
24 June 2014 and 31 December 2018, AFI 51-201 reminded convening author-
ities to “use the version of Article 60 in effect at that time (found in the 2016
MCM).” AFI 51-201, ¶ 13.16.2. The instruction also equated “taking action”
with “[g]ranting post-sentencing relief,” explaining: “A decision to take action
is tantamount to granting relief, whereas a decision to take no action is tanta-
mount to granting no relief.” AFI 51-201, ¶ 13.17.1.
During the pendency of this appeal, the United States Court of Appeals for
the Armed Forces (CAAF) decided United States v. Brubaker-Escobar, ___ M.J.
___, No. 20-0345, 2021 CAAF LEXIS 818 (C.A.A.F. 7 Sep. 2021) (per curiam),
holding:
[I]n any court-martial where an accused is found guilty of at
least one specification involving an offense that was committed
before January 1, 2019, a convening authority errs if he fails to
take one of the following post-trial actions: approve, disapprove,
commute, or suspend the sentence of the court-martial in whole
or in part.
Id. at *1.
In Brubaker-Escobar, the CAAF found the convening authority’s failure to
explicitly take one of those actions was a “procedural error.” Id. at *2, 7–8. The
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United States v. Silvers, No. ACM 39963
court then noted: “Pursuant to Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2018),
procedural errors are ‘test[ed] for material prejudice to a substantial right to
determine whether relief is warranted.’” Id. at *8 (alteration in original) (quot-
ing United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)).
On these facts, we find no material prejudice. The convening authority re-
ceived accurate advice about his authority to act on Appellant’s sentence, but
inaccurate advice about how to articulate his decisions. The SJA and acting
SJA both recommended he “take no further action” (emphasis added), appar-
ently referencing the plea agreement which limited the maximum confinement
to 36 months. It is apparent the convening authority intended to approve the
sentence as adjudged.
The findings and the sentence entered are correct in law and fact, and no
error prejudicial to the substantial rights of the Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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