United States v. Anne

This opinion is subject to administrative correction before final disposition.
Before
KING, TANG, and LAWRENCE,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Michael C. ANNE
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900072
Decided: 18 December 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Keaton H. Harrell, USMC. Sen-
tence adjudged 22 August 2018 by a general court-martial convened at
Camp Lejeune, North Carolina, consisting of a military judge sitting
alone. Sentence awarded by the military judge: reduction to E-1, a fine
of $4,000.00, confinement for 28 months, and a dishonorable dis-
charge. 1
For Appellant: Major Matthew A. Blackwood, USMC.
For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN.
_________________________
1 The Convening Authority approved the adjudged sentence but suspended con-
finement in excess of 24 months pursuant to a pretrial agreement.
United States v. Anne, NMCCA No. 201900072
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A military judge sitting as a general court-martial convicted Appellant,
consistent with his pleas, of three specifications of conspiracy, two specifica-
tions of larceny of military property, two specifications of wrongful sale of
military property, attempted wrongful sale of military property, dereliction of
duty, and obstruction of justice, in violation of Articles 80, 81, 92, 108, 121,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881,
892, 908, 921, and 934 (2016).
Appellant claims that he received a highly disparate sentence compared
to that of his co-conspirator, Lance Corporal (LCpl) (E-3) Delnevo. We disa-
gree, find no prejudicial error, and affirm.
I. BACKGROUND
While serving as a supply Marine for 3d Marine Raider Battalion, and
over the course of three years (2016-2018), Appellant engaged in a campaign
to steal and sell or attempt to steal and sell to a local pawn shop military
property valued in the hundreds of thousands of dollars. As part of this cam-
paign, he approached LCpl Delnevo, a junior Marine with whom he worked,
with the idea of selling stolen property, including 25 Solar Portable Alterna-
tive Communications Energy Systems. Also stolen were Leatherman multi-
tools, Gerber S39V knives, Surefire flashlights, scout lights, Hellfighter lights
and helmet lights, and Recon Sleeping Systems. Finally, when the command
became suspicious, Appellant conspired with LCpl Delnevo to destroy evi-
dence of their activities by replacing the hard drive for the warehouse securi-
ty camera. LCpl Delnevo then drove Appellant to a store at which Appellant
purchased a new hard drive and then replaced the original hard drive with
the newly purchased drive. Appellant then destroyed the original. Pleading
guilty to ten related specifications, Appellant faced a total of 70 years and six
months confinement. LCpl Delnevo pleaded guilty at a separate general court
martial to the conspiracies, larcenies of military property (including larcenies
that did not involve Appellant), attempted sale of military property, and
dereliction of duty. LCpl Delnevo did not plead guilty to obstruction of justice
or the separate charge of attempting to sell military property. Pleading guilty
to nine related specifications, LCpl Delnevo faced a total of 70 years and six
months of confinement. LCpl Delnevo’s military judge sentenced him to re-
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United States v. Anne, NMCCA No. 201900072
duction to E-1, confinement for 20 months, and a dishonorable discharge. The
convening authority approved the sentence as adjudged.
The same trial counsel represented the government at both courts-martial
and the same convening authority acted on both sentences. Different military
judges presided over and sentenced the two Marines. Finally, while Appel-
lant’s sentencing hearing is part of the record, the record does not contain the
evidence in aggravation, extenuation, or mitigation offered at LCpl Delnevo’s
sentencing proceedings. Additional facts necessary to the resolution of the
issue are discussed infra.
II. DISCUSSION
The appellant now contends his sentence is highly disparate to that of
LCpl Delnevo and that this Court should remedy that disparity by affirming
a sentence of no more than 20 months’ confinement, reduction to paygrade E-
1, and a dishonorable discharge. The Government concedes the cases are
“closely related,” but argues they are not “highly disparate,” or if they are,
that a “rational basis” exists for said disparity.
We review sentence appropriateness de novo, United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006), and generally without reference or comparison to
sentences in other cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985). We will engage in sentence comparison only “in those rare instances in
which sentence appropriateness can be fairly determined only by reference to
disparate sentences adjudged in closely related cases.” United States v. So-
then, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting Ballard, 20 M.J. at 283).
When arguing for relief based on sentence disparity, an appellant must
demonstrate “that any cited cases are ‘closely related’ to his or her case and
that the sentences are ‘highly disparate.’ If the appellant meets that burden
. . . then the Government must show that there is a rational basis for the
disparity.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). “Closely
related” cases involve “offenses that are similar in both nature and serious-
ness or which arise from a common scheme or design.” United States v. Kelly,
40 M.J. 558, 570 (N.M.C.M.R. 1994); see also, Lacy, 50 M.J. at 288.
In assessing whether sentences are highly disparate, adjudged sentences
are used because there are several intervening and independent factors be-
tween trial and appeal—including discretionary grants of clemency and lim-
its from pretrial agreements—that might properly create the disparity in
what are otherwise closely related cases. United States v. Roach, 69 M.J. 17,
21 (C.A.A.F. 2010). Moreover, we are “not limited to a narrow comparison of
the relative numerical values of the sentences at issue,” but may also consid-
er “the disparity in relation to the potential maximum punishment.” Lacy, 50
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United States v. Anne, NMCCA No. 201900072
M.J. at 287. Finally, co-conspirators are not entitled to similar sentences and
disparity between them does not necessarily render one sentence inappropri-
ate, “provided each military accused is sentenced as an individual.” United
States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001) (citations omitted). This is
so because the point of examining disparate sentences is not only to eliminate
actual unfairness or injustice, but to ensure the “appearance of fairness and
integrity, without which the public, members of Congress, and service per-
sonnel will lose confidence in the military justice system.” United States v.
Kelly, 40 M.J. 558, 570 (N-M Ct. Crim. App. 1994). The United States con-
cedes that these cases are closely related for purpose of this appeal. We con-
cur and so begin with the next prong—whether the sentences are highly
disparate.
We begin with the established principle that “sentence comparison does
not require sentence equation,” Durant, 55 M.J. at 260, as the goal is to “at-
tain relative uniformity rather than arithmetically averaged sentences.” Id.
Here, two supply Marines engaged in largely the same course of misconduct
over several months, namely, stealing or attempting to steal from the ware-
house in which they were entrusted to work, hundreds of thousands of dollars
of government property, selling some of that property to enrich themselves,
and then conspiring to obstruct justice. Considering that each Marine faced
decades of confinement, we do not find a difference of eight months of con-
finement to be highly disparate. Nor do we perceive such a small delta indica-
tive of unfairness or that it risks such a perception.
Regarding the fine, the record indicates the appellant was paid at least
$3000 for his criminal activity. At trial, the Government requested a sentence
that included a fine of $5000. The Defense objected to that amount, request-
ing instead a “fair fine.” 2 While we know he was enriched, 3 the record before
us does not indicate the amount LCpl Delnevo was paid beyond approximate-
ly $1800.00. Without this information, we decline to assume Appellant’s fine
resulted in a “highly” disparate sentence.
Even had Appellant satisfied his burden, we would find a rational basis
for the disparity. First, Appellant was a non-commissioned officer engaging in
criminal activity with a junior Marine. We have routinely recognized the
2 Rawle at 45.
3 See Prosecution Exhibit 1, at 2: “Lance Corporal Delnevo and I split the $2600 and
we each received $1300.”
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United States v. Anne, NMCCA No. 201900072
military maxim that with greater authority goes greater responsibility and,
thus, accountability, especially when the senior encourages or engages in
misconduct with subordinates. See e.g., United States v. Flowers, 2017 CCA
LEXIS 712 (N-M Ct. Crim. App. 21 Nov. 2017) (unpub. op.) (considering
seniority of appellant as a senior, non-commissioned officer in determining
rational basis for sentence disparity); United States v. Lambert, 2006 CCA
LEXIS 300 at * 14 (N-M Ct. Crim. App. 27 Nov. 2006) (unpub. op.) (“as the
senior NCO, [co-conspirator] was invested with greater responsibility and
authority.”) So too here. Not only did Appellant raise with his junior the idea
of selling stolen military property, he informed that junior Marine that a
security camera may have recorded their crimes and subsequently entered
into a second conspiracy with that junior Marine to obstruct justice—a con-
spiracy that culminated with Appellant alone buying a new hard drive, re-
placing the old one, and destroying the original hard drive. We concur with
the Government that such a brazen attempt to obstruct justice increases
Appellant’s level of culpability and provides a rational basis for the difference
in Appellant’s sentence.
III. CONCLUSION
Having carefully considered Appellant’s assigned error, the record of trial,
and the parties’ submissions, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudiced Appellant’s
substantial rights. Arts. 59, 66, UCMJ.
Although not raised by Appellant, we note that the court-martial order
(CMO) does not accurately reflect the disposition of all charges and specifica-
tions to which Appellant entered pleas of not guilty. The CMO indicates that
Charge I, Specification 2, Charge II, Specification 2, Charge III, and Specifi-
cation 3 were dismissed without prejudice. However, the CMO fails to indi-
cate that the withdrawn charges and specifications were also “dismissed by
the convening authority without prejudice to ripen into prejudice upon com-
pletion of appellate review in which the findings and sentence have been
upheld.”4 The appellant is entitled to have court-martial records that correct-
ly reflect the content of his proceeding. United States v. Crumpley, 49 M.J.
538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the supplemental CMO
shall properly reflect the disposition of Charge I, Specification 2, Charge II,
Specification 2, Charge III, and Specification 3, as reflected above.
4 Appellate Exhibit I at 6, Record at 108.
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United States v. Anne, NMCCA No. 201900072
Accordingly, the findings and sentence as approved by the Convening Au-
thority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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