United States v. Fulps

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32665
________________________
UNITED STATES
Appellee
v.
Gage E. FULPS
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 16 December 2021
________________________
Military Judge: Wesley A. Braun.
Sentence: Sentence adjudged 27 May 2020 by SpCM convened at Scott
Air Force Base, Illinois. Sentence entered by military judge on 23 June
2020: Bad-conduct discharge, confinement for 15 days, and reduction to
E-1.
For Appellant: Major Alexander A. Navarro, USAF.
For Appellee: Lieutenant Colonel Amanda L.K. Linares, USAF; Lieuten-
ant Colonel Matthew J. Neil; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MERRIAM, Appellate Military
Judges.
Judge MERRIAM delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MERRIAM, Judge:
A special court-martial composed of a military judge alone found Appellant
guilty, in accordance with his pleas and pursuant to a plea agreement, of two
United States v. Fulps, No. ACM S32665
specifications of assaulting a person in the execution of civilian law enforce-
ment duties, in violation of Article 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 928.1,2 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 15 days,3 and reduction to the grade of E-
1.
On appeal, Appellant asserts one assignment of error: that his sentence to
a bad-conduct discharge was inappropriately severe “in light of the victim re-
questing leniency for the Appellant in his post-trial submission.” Finding no
prejudicial error, we affirm.
I. BACKGROUND
Appellant entered active duty in the United States Air Force in April 2017.
On or about 2 June 2019, while on leave in Austin, Texas, Appellant visited a
bar in a popular nightlife district and became intoxicated. After Appellant at-
tempted to provoke physical altercations with bar patrons, bar staff asked Ap-
pellant to leave. Appellant became belligerent with bar staff, who then forcibly
escorted him from the bar and called civilian law enforcement to assist. When
officers of the Austin Police Department (APD) responded to the scene, they
encountered Appellant being held on the ground just outside the bar by bar
staff. When the police officers ordered Appellant to stand up, he initially acted
unresponsive. The police officers then picked up Appellant by his arms and
placed him on a bench on the crowded sidewalk in front of the bar. As numer-
ous onlookers watched, Sergeant KB and Officer JR of the APD stood by the
bench on which Appellant was seated. Officer JR asked Appellant whether he
had a phone to call someone to pick him up. Appellant stood up, appeared to
check his pockets for a phone, then bent down and acted as though about to
vomit. Appellant then shouted, “shut the [expletive] up!” at the officers and
suddenly “shot upwards,” throwing both of his arms toward the officers with
1 All references in this opinion to the UCMJ and Rules for Courts-Martial (R.C.M.) are
to the Manual for Courts-Martial, United States (2019 ed.).
2 Pursuant to the plea agreement, Charge I and its Specification, which alleged a vio-
lation of Article 107, UCMJ, 10 U.S.C. § 907, for Appellant falsely stating to civilian
law enforcement personnel that he was an Air Force captain, were withdrawn and
dismissed with prejudice.
3 Under the plea agreement, confinement for each specification was capped at 30 days,
with no further limitation that the sentences were required to run concurrently. The
military judge sentenced Appellant as follows: for Specification 1 of Charge II (striking
Officer JR), to be confined for 15 days; for Specification 2 of Charge II (attempting to
strike Sergeant KB), to be confined for 10 days. The military judge ordered the sen-
tences of confinement to run concurrently.
2
United States v. Fulps, No. ACM S32665
his hands in fists. One of Appellant’s fists struck Officer JR’s jaw; Sergeant KB
successfully dodged Appellant’s other fist. The officers then forced Appellant
to the ground, where they were required to use two sets of handcuffs to detain
Appellant due to his level of resistance. Ultimately, at least five civilian police
officers and an emergency medical technician responded to the scene due to
Appellant’s conduct. At Appellant’s court-martial, video and audio recordings
of the incident from cameras worn by the police officers were entered into evi-
dence.
After the sentence was adjudged, Appellant did not submit a request for
clemency to the convening authority. Though neither Sergeant KB nor Officer
JR testified at trial, after trial, Sergeant KB submitted a letter to the conven-
ing authority pursuant to R.C.M. 1106A. In his letter, Sergeant KB, a military
veteran, noted that military members sometimes “get intoxicated and do
things that they regret.” Sergeant KB further opined:
I understand that punishment is required for the acts committed
and spoken of. However, I don’t think [Appellant] should be
kicked out of the military or at least not have a dishonorable
discharge because of his actions. I was not the one that was
struck with a punch but I understand people do things in their
intoxicated state that they wouldn’t normally do. . . . I don’t know
if my opinion helps but I wouldn’t want [ ] this to damage a [ser-
vicemember’s] career/life.
In his Decision on Action memorandum, the convening authority stated
that he considered Sergeant KB’s submission and that the other victim, Officer
JR, did not submit any matters. The convening authority took no action on
findings or sentence and the military judge subsequently entered the sentence
as adjudged.
II. DISCUSSION
A. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We may affirm only as much of the sentence
as we find correct in law and fact and determine should be approved on the
basis of the entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We assess
sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offense[s], the appellant’s record of service, and all mat-
ters contained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606
(A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in original) (quot-
ing United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)).
3
United States v. Fulps, No. ACM S32665
Our authority to determine sentence appropriateness “reflects the unique
history and attributes of the military justice system, [and] includes but is not
limited to considerations of uniformity and evenhandedness of sentencing de-
cisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations
omitted). Although we have great discretion to determine whether a sentence
is appropriate, and Article 66, UCMJ, empowers us to do justice, we have no
authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010).
Under R.C.M. 1106(c)(1), a convening authority may provide relief related
to an adjudged bad-conduct discharge only in limited circumstances. If an ac-
cused provides substantial assistance in the investigation or prosecution of an-
other person, a convening authority may, upon recommendation of trial coun-
sel, reduce, commute, or suspend an adjudged bad-conduct discharge. R.C.M.
1109(c)(1) and (e). A convening authority may also suspend a bad-conduct dis-
charge upon recommendation by the military judge. R.C.M. 1109(c)(1) and (f).
B. Analysis
Appellant’s assignment of error specifically asserts the bad-conduct dis-
charge is inappropriately severe “in light of the victim [requesting] leniency for
the Appellant in his post-trial submission.” Appellant did not offer evidence
from either victim at trial. After trial, Appellant did not request clemency.
However, Sergeant KB submitted a letter to the convening authority under
R.C.M. 1106A, opining that Appellant should not be “kicked out of the military
. . . .” R.C.M. 1109(c)(1) prohibited the convening authority from reducing the
punitive discharge—the sentence modification Appellant seeks.
Citing only an unpublished opinion of a panel of the Army Court of Crimi-
nal Appeals, United States v. Alcantara, No. AXXXXXXXX, 2018 CCA LEXIS 601,
at *6–7 (A. Ct. Crim. App. 31 Oct. 2018) (unpub. op.), Appellant argues we
should exercise our Article 66(d), UCMJ, responsibility and reduce Appellant’s
sentence based on Sergeant KB’s post-trial submission. While our review for
sentence appropriateness encompasses the entire record, including post-trial
matters submitted by victims and appellants, several facts distinguish the
facts of this case from the non-controlling case cited by Appellant. In Alcantara,
the staff judge advocate and the convening authority expressed in writing that
they believed the adjudged sentence was too harsh. Id. at *2. In this case, nei-
ther the staff judge advocate nor, more importantly, the convening authority,
has conveyed such a sentiment. In fact, the convening authority in this case
could have modified other portions of the sentence—the confinement and/or
reduction in grade—and chose not to. Moreover, in Alcantara, the “victim of
appellant’s most serious sexual offense” submitted a letter in which she ex-
pressed shock at his sentence. Id. at *1–2 (emphasis added). In this case, only
4
United States v. Fulps, No. ACM S32665
the victim of Appellant’s less serious of two offenses requested leniency.4 Fi-
nally, in Alcantara, more than 50 letters were submitted to the convening au-
thority supporting clemency for the accused. Id. at *6. Here, Appellant did not
request clemency and only one person submitted anything to the convening
authority for post-trial consideration.
We accord great respect to Sergeant KB who, despite being victimized by
Appellant, possessed the equanimity to write on Appellant’s behalf. However,
considering the entire record, and mindful that though Article 66, UCMJ, em-
powers us to do justice, we have no authority to grant mercy, Nerad, 69 M.J.
at 146, we are not persuaded that Sergeant KB’s post-trial request for leniency
renders Appellant’s sentence for publicly assaulting two police officers inap-
propriately severe.
Although Appellant’s assignment of error specifically asserts that the bad-
conduct discharge is inappropriately severe due to Sergeant KB’s post-trial let-
ter suggesting leniency, Appellant’s brief in support of his assignment of error
further argues that Appellant’s punitive discharge should be set aside “in light
of . . . the other matters in extenuation and mitigation in this case.” We turn
briefly to this contention.
Appellant asserts he was a “model [A]irman, as evidenced by the several
witnesses who testified on his behalf.” Indeed, four non-commissioned officers
testified on Appellant’s behalf at trial. Appellant further notes that he was only
21 years old when he committed the offenses and that he took responsibility
by pleading guilty. Appellant contends that his “overwhelming[ ] intoxication,”
the fact that the police officers were able to “quickly and effectively detain”
him, and the police officers’ lack of lasting injuries are also matters in mitiga-
tion. We note all this evidence was available to the military judge who ad-
judged the sentence.
We decline Appellant’s request to set aside the bad-conduct discharge or
otherwise modify the adjudged sentence. Appellant was sentenced for public
assaults on multiple uniformed civilian law enforcement personnel while they
were in the exercise of their duties. Based on our careful, individual, and par-
ticularized review of Appellant, the nature and seriousness of his offenses, his
acceptance of responsibility, his relatively brief but strong record of service,
4 Appellant was convicted of assaulting two police officers as they were discharging
their duties. Appellant’s repeated characterization of Sergeant KB’s letter, including
in the assignment of error, as a request for leniency from “the victim” (emphasis added)
is thus somewhat misleading. More accurately, one of the two victims suggested leni-
ency. Importantly, the victim suggesting leniency was not the officer whom Appellant
punched in the face.
5
United States v. Fulps, No. ACM S32665
and all matters contained in the record, including the letter submitted by Ser-
geant KB under R.C.M. 1106A, we find the sentence was not inappropriately
severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
6