United States v. Guinn

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Michael J. GUINN, Staff Sergeant
United States Army, Appellant
No. 19-0384
Crim. App. No. 20170500
Argued November 17, 2020—Decided May 10, 2021
Military Judge: Richard J. Henry
For Appellant: Captain Alexander N. Hess (argued); Lieu-
tenant Colonel Angela D. Swilley, Captain Catherine E.
Godfrey, Captain Zachary A. Gray, and Jonathan F. Potter,
Esq. (on brief); Lieutenant Colonel Tiffany D. Pond, Major
Jack D. Einhorn, and Captain Benjamin Accinelli.
For Appellee: Captain Christopher T. Leighton (argued);
Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
liams, and Major Jonathan S. Reiner (on brief); Major Brett
A. Cramer and Major Hannah E. Kaufman.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY and Judges SPARKS and
MAGGS, joined. Judge MAGGS filed a separate concur-
ring opinion. Senior Judge RYAN filed a separate dis-
senting opinion.
_______________
Judge OHLSON delivered the opinion of the Court.
I. Overview
Following a child sex offense conviction, Appellant began
serving a four-year sentence of confinement at Fort Leaven-
worth, Kansas. During his incarceration, a prison policy
(since revised) prohibited child sex offenders from having con-
tact with children unless they received an exception to the
policy. After Appellant unsuccessfully complained to prison
officials and the convening authority that the policy improp-
erly deprived him of contact with his biological children, Ap-
pellant sought sentence relief from the United States Army
Court of Criminal Appeals (CCA). Appellant argued that the
prison policy violated his rights under Article 55, Uniform
United States v. Guinn, No. 19-0384/AR
Opinion of the Court
Code of Military Justice (UCMJ), 10 U.S.C. § 855 (2012), and
under the First, Fifth, and Eighth Amendments of the United
States Constitution. The CCA concluded that the prison pol-
icy did not violate either Article 55 or the Eighth Amendment
but specifically declined to address Appellant’s First and
Fifth Amendment claims stating that such claims are “ ‘un-
suitable for an [Article 66, UCMJ, 10 U.S.C. § 866 (2012),]
sentence appropriateness assessment.’ ” United States v.
Guinn, No. ARMY 20170500, 2019 CCA LEXIS 143, at *10,
2019 WL 1502512, at *5 (A. Ct. Crim. App. Mar. 28, 2019)
(unpublished) (alteration in original) (quoting United States
v. Jessie, No. ARMY 20160187, 2018 CCA LEXIS 609, at *13,
2018 WL 6892945, at *5 (A. Ct. Crim. App. Dec. 28, 2018) (en
banc)). This Court granted review to determine whether the
CCA conducted a valid Article 66(c), UCMJ, review when it
“failed to consider Appellant’s First and Fifth Amendment
claims even while entertaining his Eighth Amendment
claims.” We hold that applicable precedent from this Court
requires the CCA to consider all of Appellant’s constitutional
claims.
II. Procedural History
Contrary to his pleas, a panel with enlisted representation
sitting as a general court-martial convicted Appellant of one
specification of sexual assault of a child under the age of
twelve in violation of Article 120b, UCMJ, 10 U.S.C. § 920b
(2012).1 The convening authority approved the adjudged sen-
tence of a dishonorable discharge, confinement for four years,
a reduction to E-1, and forfeiture of all pay and allowances.
In September 2017, Appellant began to serve his prison
sentence at the Joint Regional Confinement Facility (JRCF)
at Fort Leavenworth, Kansas. At that time, inmates convicted
of child sex offenses were subject to a JRCF policy that pro-
hibited inmates from having direct or indirect written, tele-
phonic, or in-person contact “with any children—to include
their biological children—unless they receive[] an exception
1 The panel acquitted Appellant of one specification of rape of a
child in violation of Article 120b, UCMJ.
2
United States v. Guinn, No. 19-0384/AR
Opinion of the Court
to [the] policy.”2 Guinn, 2019 CCA LEXIS 143, at *4, 2019 WL
1502512, at *2. A precondition for receiving an exception to
the policy was that “the inmate had to admit guilt and com-
plete a treatment program for sexual offenders.” Id., 2019 WL
1502512, at *2. In complaints to prison officials and the con-
vening authority, Appellant repeatedly but unsuccessfully
sought access to his biological children without admitting
guilt to the offenses of which he was convicted.
In his appeal to the CCA, Appellant challenged “the con-
ditions of his confinement” by alleging “the confinement vis-
itation policy unlawfully increase[d] his sentence in violation
of Article 55, UCMJ, and the First, Fifth, and Eighth Amend-
ments [of the Constitution].” Id. at *1, *7, 2019 WL 1502512,
at *1, *3. The CCA unanimously rejected the Article 55 and
Eighth Amendment challenge. The lower court first noted
that both Article 55 and the Eighth Amendment prohibit
cruel and unusual punishment, and then correctly held that
the first prong of a three-part test for determining whether
such a punishment was imposed requires an appellant to
demonstrate an impermissible “denial of necessities.” Id. at
*8, 2019 WL 1502512, at *4 (citing United States v. Lovett, 63
M.J. 211, 215 (C.A.A.F. 2006)). The CCA concluded that the
policy of depriving prisoners of contact with minors was not
equivalent to policies denying prisoners of necessities such as
food, sufficient housing, and protection from torture. The CCA
reasoned that if “long term solitary confinement”—i.e., “the
general denial of human contact”—did not violate the Eighth
Amendment, then “the deprivation of contact with one’s bio-
logical children” also would not constitute “a deprivation of a
necessity.” Id. at *9, 2019 WL 1502512, at *4. Moreover, in
regard to the second prong of the Lovett test, the CCA deter-
mined that Appellant had “not shown a culpable state of mind
on the part of prison officials” because there was “no punitive
intent in the application of the policy.” Id. at *10, 2019 WL
2 It appears this prison policy was amended while Appellant
was serving his sentence of confinement. See Guinn v. McCarthy,
No. 1:19-cv-1358, 2020 U.S. Dist. LEXIS 122703, at *2, 2020 WL
3965006, at *1 (E.D. Va. July 13, 2020) (unpublished) (stating that
Appellant “was prohibited from contacting his [three minor] chil-
dren until the Visitation Policy was amended, some 18 months after
he began his incarceration”).
3
United States v. Guinn, No. 19-0384/AR
Opinion of the Court
1502512, at *4. The CCA then ruled that it need not address
the third prong in deciding that Appellant’s claims under Ar-
ticle 55 and the Eighth Amendment must fail. Id., 2019 WL
1502512, at *4.
In terms of his other constitutional claims, Appellant es-
sentially argued that the prison policy violated his First
Amendment right of freedom of association by denying him
all contact with his children, and violated his Fifth Amend-
ment privilege against self-incrimination by requiring him to
admit to a criminal offense in exchange for communicating
with those children. Appellant then argued that the CCA
should reduce his sentence because his confinement condi-
tions violated the Constitution.
A split CCA opined that Appellant’s First and Fifth
Amendment claims were “unsuitable” for an Article 66(c),
UCMJ, sentence appropriateness assessment. Id., 2019 WL
1502512, at *5 (citation omitted) (internal quotation marks
omitted). The CCA majority determined that “another
court”—that is, an Article III court empowered to resolve
claims for injunctive and declaratory relief—was “better posi-
tioned to address” these complaints. Id. at *11, 2019 WL
1502512, at *5. However, citing the CCA’s Article 66(c) re-
quirement to review sentences, the dissenting CCA judge con-
cluded that the lower court could only fulfill its statutory
mandate by analyzing post-trial confinement conditions that
potentially violated any constitutional right of a servicemem-
ber. Id. at *12–13, 2019 WL 1502512, at *5–6 (Schasberger,
J., dissenting in part). Following this split decision, the CCA
granted Appellant’s motion for reconsideration but affirmed
the original opinion and the dissent.
III. Issues Presented
This Court granted review on the following issues:
I. Whether the Army court conducted a valid Article
66 review when it failed to consider Appellant’s First
and Fifth Amendment claims even while entertain-
ing his Eighth Amendment claims.
II. Whether Appellant’s constitutional rights were
violated by a confinement facility policy that barred
him from all forms of communication with his minor
children without an individualized assessment
demonstrating that an absolute bar was necessary.
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United States v. Guinn, No. 19-0384/AR
Opinion of the Court
United States v. Guinn, 79 M.J. 267 (C.A.A.F. 2019) (order
granting review). We ordered briefs and oral argument only
with respect to Issue I.
IV. Standard of Review
This Court recognizes a CCA’s “broad discretion in con-
ducting its Article 66(c) review.” United States v. Swift,
76 M.J. 210, 216 (C.A.A.F. 2017). Thus, a CCA’s actions under
Article 66(c) are “generally review[ed] … for an abuse of dis-
cretion,” United States v. Atchak, 75 M.J. 193, 196 (C.A.A.F.
2016), and this includes the review of a CCA’s sentence ap-
propriateness decisions, United States v. Roach, 69 M.J. 17,
21 (C.A.A.F. 2010). Importantly, however, this Court con-
ducts a de novo review with respect to the scope and meaning
of the CCA’s Article 66(c) authority. United States v. Gay, 75
M.J. 264, 267 (C.A.A.F. 2016). Therefore, this de novo review
standard is applied to the issue presented in the instant case.
V. Analysis
The applicable version of Article 66(c), UCMJ, states as
follows:
In a case referred to it, the Court of Criminal Ap-
peals may act only with respect to the findings and
sentence as approved by the convening authority. It
may affirm only such findings of guilty, and the sen-
tence or such part or amount of the sentence, as it
finds correct in law and fact and determines, on the
basis of the entire record, should be approved. In
considering the record, it may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the
trial court saw and heard the witnesses.
The plain language of the statute shows that CCAs have
two responsibilities that are of particular relevance to the is-
sue before us. The first is to ensure that the sentence imposed
on an appellant is “correct in law.” Id. As an example of this
mandate, CCAs are required to ensure that the adjudged and
approved sentence in a particular case does not exceed the
maximum penalty authorized under the applicable punitive
article. See, e.g., United States v. Datavs, 70 M.J. 595, 604
(A.F. Ct. Crim. App. 2011), aff’d on other grounds by 71 M.J.
420 (C.A.A.F. 2012). The second relevant CCA responsibility
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Opinion of the Court
under Article 66 is to determine whether the sentence im-
posed on an appellant “should be approved.” As an example,
CCAs must determine the appropriateness of an adjudged
and approved sentence in light of the underlying facts ad-
duced at trial, to include all extenuating and mitigating cir-
cumstances. See United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982).
Beyond these more obvious implications of the statutory
language, this Court has further defined the scope of a CCA’s
responsibilities under Article 66(c) through our case law. Spe-
cifically, when determining whether an imposed sentence is
“correct in law” and “should be approved,” we have held that
CCAs are empowered to grant sentence relief based on post-
trial confinement conditions. As can be seen directly below,
the nature of this authority has been laid out in three key
cases.
In United States v. White, 54 M.J. 469 (C.A.A.F. 2001), the
appellant complained to this Court of his treatment while in
confinement. We held as follows:
Our statutory authority [under Article 67(c), UCMJ,
10 U.S.C. § 867(c),] is to act “with respect to the find-
ings and sentence.” This grant of authority encom-
passes more than authority merely to affirm or set
aside a sentence. It also includes authority to ensure
that the severity of the adjudged and approved sen-
tence has not been unlawfully increased by prison
officials, and to ensure that the sentence is executed
in a manner consistent with Article 55[,UCMJ,] and
the Constitution.
Id. at 472. It is clear from this passage (as well as from our
opinion in United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001),
which is addressed immediately below), that the White Court
concluded that under Article 67(c), UCMJ, we have two dis-
tinct responsibilities: (1) to ensure that the severity of the ad-
judged and approved sentence has not been unlawfully in-
creased by prison officials;3 and (2) to ensure that the
3 Our opinion in United States v. Pena, 64 M.J. 259, 265–66
(C.A.A.F. 2007), provides some guidance for determining whether a
sentence has been unlawfully increased. That opinion indicates
that a prison policy will increase the severity of a sentence if the
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Opinion of the Court
sentence is executed in a manner consistent with Article 55,
UCMJ, and the Eighth Amendment.4
On the same day that White was decided, this Court also
handed down its opinion in Erby, 54 M.J. at 476. The appel-
lant in that case also complained of his treatment while in
confinement. In Erby, however, rather than addressing the
authority of this Court under Article 67(c) as we did in White,
we instead addressed the authority of the Courts of Criminal
Appeals under Article 66, UCMJ. Erby, 54 M.J. at 476–77.
Specifically, in interpreting the relevant portions of Article
66(c), UCMJ, our Court opined as follows:
[In White we] held that our authority under Article
67(c) “includes authority to ensure that the severity
of the adjudged and approved sentence has not been
unlawfully increased by prison officials[.]”
In addition to its duty and authority to review
sentence appropriateness, a Court of Criminal Ap-
peals also has the duty and authority under Article
66(c) to determine whether the sentence is correct “in
law.” This authority under Article 66(c) is virtually
identical to our Court’s authority to review the sen-
tence under Article 67(c). Accordingly, we hold that
the Court of Criminal Appeals erred when it con-
cluded that it lacked authority to review appellant’s
claims.
Id. at 478 (second alteration in original) (emphasis added) (ci-
tation omitted). As can be seen then, two decades ago this
Court held that a Court of Criminal Appeals not only has the
authority but also the duty to ensure that the severity of an
adjudged and approved sentence has not been unlawfully in-
creased by prison officials. And as recently as 2016, this Court
policy “constitute[s] ‘punishment’ within the meaning of the crimi-
nal law” and that “[a]s a general matter, the collateral administra-
tive consequences of a sentence … do not constitute punishment for
purposes of the criminal law.” Id. at 265.
4 In White, our reference to “the Constitution” was to the Eighth
Amendment, not more generally to other constitutional provisions.
54 M.J. at 472 (“expressly hold[ing] that we have jurisdiction under
Article 67(c) to determine on direct appeal if the adjudged and ap-
proved sentence is being executed in a manner that offends the
Eighth Amendment or Article 55” (emphasis added)); see also Erby,
54 M.J. at 478 (describing the White holding).
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Opinion of the Court
reaffirmed that the Courts of Criminal Appeals have the
unique authority and responsibility to provide sentence ap-
propriateness relief for post-trial confinement conditions in
Gay, 75 M.J. 264.
In Gay, the appellant complained to the CCA of his treat-
ment while in confinement. He specifically cited the fact that
he was placed in solitary confinement in order to segregate
him from foreign nationals. In granting the appellant relief,
the CCA held as follows:
Under our broad Article 66(c), UCMJ, authority, we
retain responsibility in each case we review to deter-
mine whether the adjudged and approved sentence
is appropriate. Under Article 66(c), UCMJ, our sen-
tence appropriateness authority is to be based on our
review of the “entire record,” which necessarily in-
cludes the appellant’s allegation of the conditions of
his post-trial confinement. While we may not engage
in acts of clemency, we hold that we may consider
post-trial confinement conditions as part of our over-
all sentence appropriateness determination, even
when those allegations do not rise to the level of an
Eighth Amendment or Article 55, UCMJ, violation.
Id. at 266 (emphasis added) (quoting United States v. Gay,
74 M.J. 736, 743 (A.F. Ct. Crim. App. 2015)). In a unanimous
opinion, this Court ratified the CCA’s interpretation of the
scope of Article 66. Specifically, we held that “[t]he CCA did
not abuse its discretion when it exercised its Article 66(c) sen-
tence reassessment authority for post-trial confinement con-
ditions despite its conclusion that the conditions did not rise
to a violation of the Eighth Amendment or Article 55.” Id. at
269 (emphasis added).
Three key and interrelated points can be discerned from
our precedents. First, if a CCA may exercise its Article 66(c)
authority in order to grant relief for post-trial confinement
conditions that do not rise to the level of cruel and unusual
punishment, then in order for it to fully perform its duties
under Article 66(c) a CCA must at least consider such claims
in order to determine whether an appellant is indeed entitled
to sentence appropriateness relief. Second, if an appellant
claims that post-trial confinement conditions unlawfully in-
creased the severity of the sentence, a CCA must consider
whether the sentence is correct in law. And third, Eighth
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Opinion of the Court
Amendment/Article 55 claims are not a prerequisite for relief,
and therefore are not a prerequisite for mandated considera-
tion of an appellant’s Article 66(c) claim.5
In the instant case, Appellant argued before the CCA that
the JRCF prison policy unlawfully increased his sentence.
Specifically, he argued that the prison policy, which effec-
tively prevented him from having any direct or indirect con-
tact with his biological children, violated his constitutional
rights under the First and Fifth Amendments. And yet, the
CCA refused to even consider Appellant’s First and Fifth
Amendment claims, asserting that such claims are “unsuita-
ble” for an Article 66(c), UCMJ, review. Guinn, 2019 CCA
LEXIS 143, at *10, 2019 WL 1502512, at *5 (citation omitted)
(internal quotation marks omitted).
However, as Appellant notes, by not “resolving [A]ppel-
lant’s constitutional claims, the Army Court could not con-
clude his sentence was ‘correct in law[,]’ let alone fulfill its
separate duty to meaningfully determine whether that sen-
tence ‘should be approved’ in the event this was error.” Brief
for Appellant at 8, United States v. Guinn, No. 19-0384
(C.A.A.F. July 22, 2020) (second alteration in original) (quot-
ing Article 66(c), UCMJ). In other words, Appellant argues
that the CCA improperly declined “to ensure that the severity
of the adjudged and approved sentence [was] not … unlaw-
fully increased by prison officials,” Pena, 64 M.J. at 265 (in-
ternal quotation marks omitted) (quoting White, 54 M.J. at
472), and improperly declined to determine whether the con-
finement conditions caused Appellant’s length of imprison-
ment to no longer be “appropriate.” Based on this Court’s
precedents, we concur with this analysis.
The Government makes a number of counter arguments,
each of which is addressed below.
First, the Government argues that, besides Eighth
Amendment claims, there is no case law that specifically re-
5 And importantly, we note that “[a] complete Article 66, UCMJ,
review is a ‘substantial right’ of an accused,” and without this com-
plete review, an appellant suffers material prejudice to a substan-
tial right. Swift, 76 M.J. at 216 (emphasis added) (quoting United
States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F. 2004)).
9
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Opinion of the Court
quires CCAs to review whether prison policies violate an ap-
pellant’s constitutional rights. Therefore, the Government
avers, Appellant is improperly advocating for “limitless” man-
datory review of constitutional prison complaints. Brief for
Appellee at 8, United States v. Guinn, No. 19-0384 (C.A.A.F.
Aug. 20, 2020). However, as explained above, Article 66(c) re-
quires CCAs to review whether a sentence is correct in law.
Swift, 76 M.J. at 216. And importantly, this Court has held
that a prison policy may increase the severity of a sentence
thereby rendering the sentence incorrect in law. See Pena,
64 M.J. at 265; Erby 54 M.J. at 478. Therefore, because a
CCA has a statutory duty to review the legality of an appel-
lant’s sentence, and because we have held that a prison policy
may affect an appellant’s sentence, a CCA cannot ignore an
appellant’s claims that a prison policy rendered an approved
sentence incorrect in law even if that claim does not invoke
the protections afforded under the Eighth Amendment. See
Swift, 76 M.J. at 216; Erby 54 M.J. at 478.
Moreover, in regard to whether a sentence “should be ap-
proved,” we readily agree with the proposition that CCAs do
not have “unlimited authority … to grant sentence appropri-
ateness relief for any conditions of post-trial confinement of
which they disapprove.” Gay, 75 M.J. at 269. However, these
courts do have the authority “to grant sentence appropriate-
ness relief” when the prison policy “was based on a legal defi-
ciency in the post-trial process.” Id. As Appellant’s brief ob-
serves, “[t]he CCAs have significant discretion in how they
resolve sentence appropriateness claims, but they have a duty
to do so one way or another.” Brief for Appellant at 13. As we
stated in United States v. Baier, a CCA “must determine
whether it finds the sentence to be appropriate,” 60 M.J. 382,
384 (C.A.A.F. 2005) (emphasis added), but then it is within
its “sound discretion” to determine “how that … sentence ap-
propriateness review should be resolved,” id. at 385 (emphasis
added). Therefore, because the CCAs are required to review
whether a sentence is appropriate, they must address an ap-
pellant’s claim that a specific prison policy contained a legal
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Opinion of the Court
deficiency that rendered the sentence inappropriate.6 Swift,
76 M.J. at 216.
Second, the Government argues that there is not a legal
deficiency in Appellant’s sentence because the prison policy
at issue in this case does not fit within “carve-out situations
wherein prison officials deviated from a policy in order to sin-
gle out an inmate in a manner resembling increased punish-
ment.” Brief for Appellee at 21. This certainly is an argument
that the Government may make to the CCA in the first in-
stance to explain why Appellant is not entitled to sentence
relief on the grounds that the sentence is incorrect in law. See
Pena, 64 M.J. at 265. However, the CCA has not even consid-
ered this argument because it wrongly believed that it could
simply ignore Appellant’s claim that the prison conditions in-
creased the severity of his sentence. But according to our case
law, the CCA did not have such discretion. See Swift, 76 M.J.
at 216.
Third, the Government characterizes Appellant’s request
as an attempt to meddle in prison policy and suggests that
the CCA is not properly positioned to evaluate prison policies.
This is an extremely important point and one that we take
seriously. We are acutely mindful of the fact that courts
should show deference to prison administrators because “the
‘problems of prisons in America are complex and intractable,’
and because courts are particularly ‘ill equipped’ to deal with
these problems.” Shaw v. Murphy, 532 U.S. 223, 229 (2001)
(citation omitted). However, as made clear above, our case law
requires CCAs to at least consider such prison policy claims
in order to determine whether the sentence is correct in law
or is appropriate. See Gay, 75 M.J. at 269; Erby, 54 M.J. at
6 At the CCA Appellant requested “day-for-day credit from the
day of his initial confinement until [the CCA] issue[d] its opinion in
[his] case against his sentence by reducing the … approved sentence
by that same period of time.” Brief for Appellant at 40–41, United
States v. Guinn, No. ARMY 20170500 (A. Ct. Crim. App. Aug. 21,
2018). In other contexts, this Court has stated that “the question of
what relief is due to remedy a violation, if any, requires a contextual
judgment, rather than the pro forma application of formulaic rules.”
United States v. Zarbatany, 70 M.J. 169, 176 (C.A.A.F. 2011).
Therefore, this question of meaningful relief will be for the CCA to
address on remand if that court finds a violation.
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Opinion of the Court
478. Upon engaging in that required consideration, we have
every confidence that the CCAs will wisely show the appro-
priate deference to prison policies in determining whether re-
lief is warranted. As we emphasized in Swift, 76 M.J. at 216,
it remains within the “broad discretion” of the CCA to deter-
mine whether relief is actually warranted in a specific case.
See also Baier, 60 M.J. at 385.
Fourth, the Government argues that granting Appellant
sentence relief would lead to an “absurd result” because the
prison policy that was designed to keep Appellant away from
children for a longer period of time would actually result in
him getting access to children sooner. However, this argu-
ment is irrelevant because it addresses an issue that is not
before this Court. The question before us is not whether Ap-
pellant is entitled to sentence relief but rather whether the
CCA properly declined to consider Appellant’s constitutional
challenges to the prison policy. The Government may make
its “absurd result” argument before the CCA in explaining
why no sentence relief is warranted in this case.
In addition to these arguments by the Government, the
CCA provided an additional reason in its reconsideration or-
der why it concluded that an Article 66(c) review of Appel-
lant’s First and Fifth Amendment claims was inappropriate.
It “believ[ed] that another court [was] better positioned to ad-
dress … [these] claims.” However, Appellant brought these
claims when seeking sentence relief under the CCA’s unique
Article 66(c) authority. The CCA is the only court that can
address the First and Fifth Amendment claims in this con-
text, and its mere belief that another court could better ad-
dress Appellant’s claims did not relieve the CCA of its statu-
tory responsibilities under Article 66(c). We further note that
when Appellant attempted to have a federal district court re-
view the JRCF policy, that court said:
The Court cannot accept the Army [CCA’s] state-
ment that a federal court would be better suited to
hear [Appellant’s] case as means of circumventing
the well-established rules of exhaustion, particu-
larly where [Appellant] has successfully obtained re-
view by the Court of Appeals for the Armed Forces
and his case there is still pending…. [Therefore], he
has failed to exhaust his military remedies and this
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Opinion of the Court
Court’s review is not appropriate, even assuming it
had jurisdiction over the matter.
Guinn, 2020 U.S. Dist. LEXIS 122703, at *7, 2020 WL
3965006, at *3.
Finally, we seek to address remaining issues this opinion
may generate. To begin with, we fully recognize that CCAs
“are not a clearinghouse for post-trial confinement complaints
or grievances,” and “[o]nly in very rare circumstances” will
sentence relief be granted “when there is no violation of the
Eighth Amendment or Article 55, UCMJ.” United States v.
Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017).
Further, in terms of whether a sentence “should be ap-
proved” a CCA’s authority to grant relief is not without limits.
As we stated in United States v. Nerad, “Article 66(c), UCMJ,
empowers the CCAs to ‘do justice,’ with reference to some le-
gal standard, but does not grant the CCAs the ability to ‘grant
mercy.’ ” 69 M.J. 138, 146 (C.A.A.F. 2010) (quoting United
States v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998)).
Next, it still remains the case that “[a]n appellant who
asks [a CCA] to review prison conditions … must establish”
the following: (1) a record demonstrating exhaustion of ad-
ministrative remedies (i.e., exhaustion of the prisoner-griev-
ance system and a petition for relief under Article 138, UCMJ,
10 U.S.C. § 938 (2012), except in “unusual or egregious cir-
cumstances that would justify [the] failure” to exhaust); (2) “a
clear record demonstrating … the jurisdictional basis for [the
CCA’s] action”; and (3) “a clear record demonstrating … the
legal deficiency in administration of the prison.” United
States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997); cf. Erby, 54
M.J. at 478.
Additionally, a CCA’s responsibilities under Article 66(c)
cannot properly be viewed as being unduly onerous. Parallels
can be drawn between Article 66(c) claims and claims made
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Grostefon requires a CCA to “acknowledge that it has
considered … issues enumerated by the accused and its dis-
position of them,” even if those issues seem facially frivolous.
Id. at 436. However, as long as a CCA indicates that it has
considered an issue raised by an appellant, a single sentence
13
United States v. Guinn, No. 19-0384/AR
Opinion of the Court
disposition is sufficient. United States v. Matias, 25 M.J. 356,
361 (C.M.A. 1987).
Lastly, it certainly may be argued that this Court’s prece-
dents regarding the scope of a CCA’s responsibilities under
Article 66(c) are not properly predicated on the plain lan-
guage of that statute. However, when asked at oral argument,
the Government specifically denied any interest in overturn-
ing this Court’s prior case law on this point. Therefore, we do
not address this issue in this opinion. As a consequence, we
hold that under our precedents, the CCA had an Article 66(c)
duty to determine whether Appellant’s approved sentence, as
executed, was correct in law and was appropriate. Because
the CCA improperly declined to conduct this required review,
“Appellant did not receive a proper legal review under Article
66(c) [and] the remedy is a remand to the Court of Criminal
Appeals for a proper review” of his sentence. United States v.
Holt, 58 M.J. 227, 233 (C.A.A.F. 2003).7
VI. Conclusion
In light of the precedents of this Court, we answer Issue I
in the affirmative and hold that the CCA erred by failing to
conduct a valid Article 66(c), UCMJ, review when it refused
to consider whether Appellant’s First and Fifth Amendment
claims entitled him to sentence relief. Because of our disposi-
tion of this matter, we need not reach Issue II in this case.
VII. Judgment
We reverse the decision of the United States Army Court
of Criminal Appeals as to the sentence and remand this case
to the lower court so that it may conduct a proper Article
7 The dissent misapprehends the majority’s position. As is read-
ily apparent from the face of our opinion, we merely hold that our
precedents require the CCA to consider all of Appellant’s constitu-
tional claims to determine whether his sentence is correct in law or
is appropriate. We make no new law here, and we do not mandate
a remedy for Appellant’s claims. And importantly, we do not ad-
dress the merits of our prior case law for the simple reason that the
Government specifically disavowed any interest in having this
Court revisit our applicable precedents. In the future if a party pe-
titions us to reconsider the meaning of the plain language of Article
66(c), UCMJ, we will reevaluate our precedents after both parties
have an appropriate opportunity to fully brief and argue that issue.
14
United States v. Guinn, No. 19-0384/AR
Opinion of the Court
66(c), UCMJ, 10 U.S.C. § 866(c) (2012), review of Appellant’s
sentence.
15
United States v. Guinn, No. 19-0384/AR
Judge MAGGS, concurring.
I agree with the Court’s decision that our precedents re-
quire the United States Army Court of Criminal Appeals
(ACCA) to consider all of Appellant’s constitutional claims. As
the Court correctly reasons, we previously have held that a
Court of Criminal Appeals (CCA) must consider an appel-
lant’s claims that post-trial confinement conditions have
made his sentence either inappropriate or legally incorrect.
In United States v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001), the
Court held that a CCA erred in not considering the appel-
lant’s claims that post-trial confinement conditions amounted
to cruel and unusual punishment. We determined that review
of these claims was required by Article 66(c), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), which im-
poses on the CCAs the “duty and authority to review sentence
appropriateness” and to “determine whether the sentence is
correct ‘in law.’ ” Id. (quoting Article 66(c), UCMJ). We have
not limited the duty of review to situations in which an appel-
lant is claiming that confinement conditions constitute cruel
and unusual punishment. In United States v. Gay, the Court
held that “[t]he CCA did not abuse its discretion when it ex-
ercised its Article 66(c) sentence reassessment authority for
post-trial confinement conditions despite its conclusion that
the conditions did not rise to a violation of the Eighth Amend-
ment or Article 55.” 75 M.J. 264, 269 (C.A.A.F. 2016). I see no
relevant difference between this case and our precedents.
I write separately to address in more depth two important
subjects that the Court briefly covers in its opinion. The first
concerns the soundness of our precedents in this area. “[I]t
certainly may be argued,” the Court correctly states, “that
this Court’s precedents regarding the scope of a CCA’s respon-
sibilities under Article 66(c) are not properly predicated on
the plain language of that statute.” United States v. Guinn,
__ M.J. __, __ (14) (C.A.A.F. 2021). The initial sentence of Ar-
ticle 66(c), UCMJ, provides: “In a case referred to it, the Court
of Criminal Appeals may act only with respect to the findings
and sentence as approved by the convening authority.” (Em-
phasis added.) In Erby and Gay, as in this case, the appellants
were not complaining about the legality or appropriateness of
a sentence as approved by the convening authority. They were
instead complaining about post-trial confinement conditions
United States v. Guinn, No. 19-0384/AR
Judge MAGGS, concurring.
that were not in any way part of the approved sentence. Ac-
cordingly, I agree with the Court that it may be argued, from
the plain meaning of its text, that Article 66(c), UCMJ, does
not give a CCA jurisdiction to address post-trial confinement
conditions that are not part of the approved sentence. The re-
sult of this apparent departure from the plain meaning may
be a practice at variance with that of other federal appellate
courts, which do not consider complaints about confinement
conditions on direct appeal in criminal cases. See, e.g., United
States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (refus-
ing to consider complaints from two appellants about the col-
lection of DNA samples by the Bureau of Prisons because the
collection was “not part of appellants’ sentence, but is rather
a prison condition that must be challenged through a separate
civil action after exhaustion of administrative remedies”).
The second subject concerns the scope of our decision
today. The Court properly declines to question the validity of
our precedents in this case because “the Government
specifically denied any interest in overturning this Court’s
prior case law on this point.” Guinn, __ M.J. at __ (14). This
conclusion follows from the principle of “party presentation,”
which generally requires the parties to raise an issue before
a court may consider it. United States v. Sineneng-Smith, 140
S. Ct. 1575, 1581 (2020) (holding that a court of appeals erred
when it raised, and invited briefing on, an issue the parties
had not contested because “no extraordinary circumstances
justified the [court’s] takeover of the appeal”). But a party
could ask this Court to reconsider our precedents in a future
case. If that happened, we would evaluate the arguments on
both sides at that time. See United States v. Blanks, 77 M.J.
239, 242 (C.A.A.F. 2018) (explaining that “[w]e consider the
following factors in evaluating the application of stare decisis:
whether the prior decision is unworkable or poorly reasoned;
any intervening events; the reasonable expectations of
servicemembers; and the risk of undermining public
confidence in the law”) (internal quotation marks omitted)
(citation omitted).
2
United States v. Guinn, No. 19-0384/AR
Senior Judge RYAN, dissenting
The majority opinion, however well intentioned, ignores
the fact that a condition of confinement that does not
constitute—and is not claimed to constitute—punishment
simply cannot “increase the sentence,” let alone the severity
of the sentence. Such a condition therefore has nothing at all
to do with whether a sentence is correct in law, and is thus,
as the United States Army Court of Criminal Appeals
correctly held, “unsuitable for a sentence appropriateness
assessment.” United States v. Guinn, No. ARMY 20170500,
2019 CCA LEXIS 143, at *10, 2019 WL 1502512, at *5 (A. Ct.
Crim. App. Mar. 28, 2019) (unpublished). The Court
nonetheless, and to my mind inexplicably, insists on
mandatory appellate review of any and all prisoner
complaints alleging a constitutional violation based on the
application of any and all administrative prison policies, even
where, as in this case, the policy as related to the remaining
constitutional claims is not even alleged to constitute
punishment.1 This decision has no basis in the text of Article
66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(c) (2012), unnecessarily extends our precedent, and
requires the lower courts to entangle themselves in an
assessment of nonpunitive prison administrative decisions, in
contravention of Supreme Court precedent.
Article 66(c), UCMJ, states that the Courts of Criminal
Appeals (CCAs) “may act only with respect to the findings and
sentence.” The plain text of Article 66(c), UCMJ, thus limits
judicial review to the findings and sentence adjudged by the
court-martial. Nonetheless, this Court has concluded that an
1 The majority characterizes Appellant’s claims as follows:
In the instant case, Appellant argued before
the CCA that the JRCF prison policy unlawfully
increased his sentence. Specifically, he argued that
the prison policy, which effectively prevented him
from having any direct or indirect contact with his
biological children [unless he receives an
exception, which requires that “the inmate had to
admit guilt and complete a treatment program for
sexual offenders”] violated his constitutional
rights under the First and Fifth Amendments.
United States v. Guinn, __ M.J. __, __ (9) (C.A.A.F. 2021) (emphasis
added).
United States v. Guinn, No. 19-0384/AR
Senior Judge RYAN, dissenting
allegation that a post-trial condition of confinement that
violates the Eighth Amendment, U.S. Const. amend. VIII, or
Article 55, UCMJ, 10 U.S.C. § 855, prohibitions against cruel
or/and unusual punishment could render the sentence legally
deficient, and thus triggers Article 66(c) review and possible
sentence relief. See United States v. White, 54 M.J. 469(C.A.A.F. 2001) (considering Eighth Amendment and Article
55, UCMJ, challenge for harassment from a prison guard);
United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001) (same);
United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)
(evaluating Eighth Amendment challenge to the conditions of
a Mandatory Supervised Release Program). And it has
permitted relief even where a post-trial condition of
confinement did not rise to the level of an Eighth Amendment
or Article 55, UCMJ, violation, in a circumstance where what
is historically considered punishment—solitary confinement,
see In re Medley, 134 U.S. 160, 171 (1890)—was imposed not
to further any penological interest of the prison, but rather to
avoid violating the Article 12, UCMJ, 10 U.S.C. § 812,
prohibition on confinement of members of the armed forces
with foreign nationals detained under the law of war. United
States v. Gay, 75 M.J. 264, 265 (C.A.A.F. 2016). Cf. Turner v.
Safley, 482 U.S. 78, 98 (1987) (disapproving a prison
regulation that did not relate to a penological interest).
But all of the above cases at least arguably constitute
increased or otherwise unlawful punishment under Supreme
Court precedent and the Constitution. Cf. Smith v. Doe, 538
U.S. 84, 92 (2003) (stating that the initial determinative
question of whether a penal restriction violates the Ex Post
Facto Clause of the U.S. Const., art. I, § 10, cl. 1., is whether
the restriction was intended to impose punishment). Rather
than the broad “legally deficient” standard that the majority
relies upon for its extra-statutory result, the actual context of
these cases is far more narrow—and tied in fact to
punishment.
Consistent with that background principle, we recognized
in Pena that we could review a Mandatory Supervised
Release program only to determine whether the condition at
issue: “(1) constituted cruel or unusual punishment or
otherwise violated an express prohibition in the UCMJ; (2)
unlawfully increased Appellant’s punishment; or (3) rendered
his guilty plea improvident.” Pena, 64 M.J. at 264. As that
2
United States v. Guinn, No. 19-0384/AR
Senior Judge RYAN, dissenting
case made clear, collateral administrative consequences of a
sentence—which includes such things as sex offender
registration, Smith, 538 U.S. at 97–99, and limits on seeing
children, see Overton v. Bazzetta, 539 U.S. 126, 133 (2003)—
“do not constitute punishment for purposes of the criminal
law.” Pena, 64 M.J. at 265. Neither do other restrictions on
liberty attendant upon incarceration that do not amount to
punishment. Overton, 539 U.S. at 131 (recognizing that
“[m]any of the liberties and privileges enjoyed by other
citizens must be surrendered by the prisoner”).
Today’s decision mandates appellate review of a clearly
nonpunitive prison regulation that is not even alleged to
constitute punishment, Guinn, __ M.J. at __ (2), is outside the
statutory authority of either this Court or the CCAs, is a clear
expansion of our precedent, and necessarily entangles the
CCAs in precisely the minutia of prison administration that
every other court in the country avoids.2
And to be absolutely clear, the neutrally applied prison
policy in question in this case is not only not part of the
adjudicated and adjudged findings and sentence, it is not
punishment at all. As the CCA already held, there was no
Eighth Amendment violation. See Guinn, 2019 CCA LEXIS
143, at *9–10, 2019 WL 1502512, at *4. Nor is there a single
precedent supporting the notion that the policy in question in
this case—that incarcerated child sex offenders cannot have
contact with children—is punishment under any other test.
2 The Supreme Court has clarified, on multiple occasions, that
courts should leave prison administration to prison administrators.
See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“[p]rison
administrators . . . should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security”); Overton, 539 U.S. at 132(courts “accord substantial deference to the professional judgment
of prison administrators”); Shaw v. Murphy, 532 U.S. 223, 229
(2001) (courts should show deference to prison administrators
because “the ‘problems of prisons in America are complex and
intractable,’ and because courts are particularly ‘ill equipped’ to
deal with these problems”) (quoting Procunier v. Martinez, 416 U.S.
396, 404–05 (1974)); Beard v. Banks, 548 U.S. 521, 536 (2006)
(Thomas, J., concurring) (“Judicial scrutiny of prison regulations is
an endeavor fraught with peril.”).
3
United States v. Guinn, No. 19-0384/AR
Senior Judge RYAN, dissenting
Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69
(1963). The fact that Appellant, a convicted child sex offender,
was not permitted to see his children in accordance with
extant prison regulations “serves a legitimate, nonpunitive
governmental objective,” United States v. Guardado, 79 M.J.
301, 304 (C.A.A.F. 2020) (citing Howell v. United States, 75
M.J. 386, 393 (C.A.A.F. 2016)), has not been historically
regarded as punishment, cf. Kansas v. Hendricks, 521 U.S.
346, 366 (1997), and does not constitute a condition of
confinement cognizable by either this Court or the CCA under
the test utilized in Pena. Pena, 64 M.J. at 264. In fact,
Appellant does not claim, and the majority does not hold, that
the regulations constitute punishment—just that
nonpunishment framed as an alleged constitutional violation
can somehow potentially increase the sentence or render it
unlawful and thus must be reviewed by the CCAs as part of
their Article 66(c), UCMJ, review. None of our precedents
must be read so broadly as to require that result.
Prison inmates in every legal system in this country
routinely allege constitutional violations based on “conditions
of confinement” grounded in routine prison policies. These
civil claims are not based on criminal law or criminal
procedure, the sole matters over which the military justice
system has jurisdiction. The insistence that the CCAs, in
order to fulfill their Article 66(c), UCMJ, duties must review
essentially civil claims for relief from alleged constitutional
violations based on prison policies that are filed as Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971), or 42
U.S.C. § 1983 suits by every other prisoner in the country is
inexplicable. The CCAs have much to do, and we should not
unnecessarily add to their statutory burden.
Conclusion
While the Government did not ask us to revisit our
precedents, it surely did not ask us to go further down our
extra-statutory path. Yet it is incontrovertible that the
majority opinion unnecessarily expands the previous holdings
of this Court, and does in fact create a requirement that the
CCAs engage in “limitless mandatory review of constitutional
prison complaints.” Guinn, __ M.J. at __ (10) (citing Brief for
Appellee at 8) (internal quotation marks omitted). Because
the prison regulation in question is neither punishment
4
United States v. Guinn, No. 19-0384/AR
Senior Judge RYAN, dissenting
under any known test nor even claimed to be punishment, it
simply does not increase the sentence and I do not think the
CCA can, let alone must, consider Appellant’s remaining
constitutional claims in conducting its Article 66(c), UCMJ,
review. “A demonstrably incorrect judicial decision . . . is
tantamount to making law, and . . . both disregards the
supremacy of the Constitution and perpetuates a usurpation
of the legislative power.” Gamble v. United States, 139 S. Ct.
1960, 1984 (2019) (Thomas, J., concurring). I respectfully
dissent.
5