United States v. Buehler

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ERIC J. BUEHLER
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300389
GENERAL COURT-MARTIAL
Sentence Adjudged: 11 June 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island,
SC.
Staff Judge Advocate's Recommendation: LtCol R.G. Palmer,
USMC.
For Appellant: CAPT Stephen White, JAGC, USN.
For Appellee: CDR Mary Grace McAlevy, JAGC, USN; LT Philip
S. Reutlinger, JAGC, USN.
20 February 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 one
specification of abusive sexual contact with a child, in
violation of Article 120(i), Uniform Code of Military Justice,
10 U.S.C. § 920(i) (2006). The military judge sentenced the
appellant to five years’ confinement, reduction to pay grade
E-1, and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged. In accordance with a
pretrial agreement, the CA suspended all confinement in excess
of 24 months, and waived automatic forfeiture of pay and
allowances for six months, provided that the appellant provided
an allotment during the period of waiver to his dependent child.
The appellant’s sole assignment of error1 is that, “[i]n
view of Appellant’s prior exemplary military record, a
dishonorable discharge for a single specification of consensual
contact with a fifteen year-old [sic] is unjustifiably severe.”
Appellant’s Brief of 8 Nov 2013 at 4. After carefully
considering the record of trial and the submissions of the
parties, we are convinced that the findings and the sentence are
correct in law and fact, and that no error materially
prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant, a 27-year-old Marine Corps recruiter, first
met the victim, a fifteen year old high school freshman, while
he was representing the Marine Corps at her high school’s Career
Day event. A couple of days later, the appellant contacted her
via phone to discuss the recruiting process. At that time, the
appellant learned from her father, who was listening in on the
conversation, that she was a 15-year-old freshman and knew then
that she was too young to be recruited. However, rather than
discontinue communication with her, over the course of the next
several days, the appellant and the victim engaged in sexually
graphic dialogue via phone calls and text messages. Although
most of these communications were initiated by the victim, the
appellant did nothing to dissuade her. Approximately two weeks
after they first met, the appellant met the victim at a local
pizza shop near her school and took her back to his residence.
The appellant was wearing his Marine Corps uniform and driving a
Government vehicle when he picked her up that day. Once at his
residence, the appellant engaged in unprotected sexual
intercourse with her multiple times before he drove her back to
the pizza shop and dropped her off. The appellant spoke with
her via phone a couple of days later and told her that he would
not see her anymore because he could get in trouble.
Sentence Appropriateness
1
This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
2
The appellant contends that a dishonorable discharge is
unjustifiably severe under the circumstances of his case. We
disagree.
This court reviews the appropriateness of the sentence de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). A
military appellate 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.” Art. 66(c), UCMJ.
Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused 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)).
After review of the entire record, we find that the
sentence is appropriate for this appellant and his offenses. The
appellant was a 27-year-old Marine Corps recruiter who took
advantage of the immaturity and vulnerability of a 15-year-old
high school freshman. Although the appellant could have, and
should have, avoided any further communications or contact after
learning of the victim’s age, he did not. Considering the
nature and seriousness of this conduct, weighed against the
appellant’s military service, we conclude that justice was done
and the appellant received the punishment he deserved. Granting
sentence relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.
Conclusion
Accordingly, the findings and the sentence, as approved by
the CA, are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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