United States v. Foote

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ETHAN C. FOOTE
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201400276
GENERAL COURT-MARTIAL
Sentence Adjudged: 24 March 2014.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, San Diego, CA.
Staff Judge Advocate's Recommendation: Col Timmothy M.
Dunn, USMCR.
For Appellant: CAPT Bree A. Ermentrout, JAGC, USN.
For Appellee: LCDR Jeremy R. Brooks, JAGC, USN; Capt
Matthew M. Harris, USMC.
23 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of attempted
robbery, desertion, and aggravated assault in violation of
Articles 80, 85, and 128, Uniform Code of Military Justice, 10
U.S.C. §§ 880, 885, and 928. The military judge sentenced the
appellant to confinement for a period of two years, reduction to
pay grade E-1, forfeiture of all pay and allowances, and a
dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged but, pursuant to a pretrial agreement,
suspended all confinement in excess of 12 months.
In his sole assignment of error, the appellant contends
that a dishonorable discharge is inappropriately severe in his
case. After carefully considering the record of trial and the
submissions of the parties, we find that no error materially
prejudicial to substantial rights of the appellant occurred. We
therefore affirm the findings and the approved sentence. Arts.
59(a) and 66(c), UCMJ.
Under Article 66(c), UCMJ, this court “may affirm only such
findings of guilty and the sentence 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.” We
independently determine the appropriateness of the sentence in
each case we affirm. See United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005). Assessing sentence appropriateness
involves the judicial function of assuring that justice is done
and that the appellant gets the punishment he deserves. United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the
character of the offender.’” United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982)(quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
On 20 June 2013, the appellant, fearing adverse legal
action, wrote goodbye notes, left behind his military
identification card, and consciously deserted from the Marine
Corps. He fled to Tecate, Mexico, where he found himself in
need of transportation to his ultimate planned destination of
Cancun. He decided upon stealing a vehicle and attempted to
force a man from his car by brandishing a pocket knife at him.
When the man resisted, the appellant stabbed him repeatedly in
the neck. The appellant fled the scene, but was later arrested,
jailed, and charged by Mexican authorities. The appellant spent
nearly four months in a Mexican jail as these civilian charges
were adjudicated before being turned over to military
authorities.
In arguing that a dishonorable discharge is inappropriately
severe, the appellant focuses primarily on the time he spent in
2
the hands of Mexican authorities and the “deplorable”1 conditions
of the jail. The time in Mexican jail was, however, presented
and properly considered by both the military judge and the CA.
Based on our individualized consideration of the appellant and
the circumstances of his offenses — including his time in a
Mexican jail for the same misconduct forming the basis for two
of the three charges here — we are satisfied that a dishonorable
discharge is not inappropriately severe.
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
1
Appellant’s Brief of 16 Sep 2014 at 4, 6.
3