United States v. Specialist NATHAN C. WILSON ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist NATHAN C. WILSON
United States Army, Appellant
ARMY 20140135
Headquarters, United States Army Maneuver Center of Excellence
Charles A. Kuhfahl, Jr., Military Judge
Lieutenant Colonel Charles C. Poché, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
D. Andes, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA;
Captain John Gardella, JA (on brief).
6 February 2017
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of two specifications of wrongful possession of a
controlled substance with intent to distribute and one specification of larceny of
military property of a value greater than $500, and contrary to his pleas, of one
specification of housebreaking in violation of Articles 112a, 121, and 130, Uniform
Code of Military Justice, 10 U.S.C. §§ 912a, 921, 930 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
twenty-one months, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.
On 18 November 2015, after amending the Specification of The Additional
Charge by removing the words “on divers occasions,” this court affirmed the
findings and sentence in this case. United States v. Wilson, ARMY 20140135, 2015
CCA LEXIS 544 (Army Ct. Crim. App. 18 Nov. 2015) (summ. disp.).
WILSON—ARMY 20140135
On 13 January 2017, the United States Court of Appeals for the Armed Forces
(CAAF) reversed our decision and dismissed Charge I and its Specification. The
CAAF returned this case to the Judge Advocate General of the Army for remand to
this court for reassessment of the sentence or, if necessary, to order a sentence
rehearing.
Sentence Reassessment
We must now consider the impact of the error identified by our superior court
and determine whether we can appropriately reassess the sentence. In making this
determination, we consider several non-exclusive factors:
(1) Dramatic changes in the penalty landscape and
exposure.
(2) Whether an appellant chose sentencing by members or
a military judge alone. As a matter of logic, judges of the
courts of criminal appeals are more likely to be certain of
what a military judge would have done as opposed to
members. . . .
(3) Whether the nature of the remaining offenses
capture[s] the gravamen of criminal conduct included
within the original offenses and, in related manner,
whether significant or aggravating circumstances
addressed at the court-martial remain admissible and
relevant to the remaining offenses.
(4) Whether the remaining offenses are of the type that
judges of the courts of criminal appeals should have the
experience and familiarity with to reliably determine what
sentence would have been imposed at trial.
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted). Additionally, we must determine that a sentence we propose to affirm is
appropriate, as required by Article 66(c), UCMJ. In short, a reassessed sentence
must be purged of prejudicial error and appropriate for the offense and the offender
involved. United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).
First, the sentencing landscape has changed somewhat due to our superior
court’s dismissal of Charge I and its Specification. However, the resultant decrease
in the maximum sentence to confinement, from thirty-five years to thirty years, does
not amount to a “dramatic change” in penalty landscape.
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WILSON—ARMY 20140135
Second, appellant was sentenced by a military judge alone. We are confident
we can discern what punishment a military judge would adjudge in this case.
Third, the nature of the remaining offenses capture the gravamen of
appellant’s criminal conduct, which was the larceny of military property of a value
greater than $500 and wrongful possession of controlled substances with the intent
distribute. The dismissed offense of housebreaking with the intent to commit
larceny carries the least amount of punitive liability and falls outside the gravamen
of appellant’s offenses.
Fourth, we have familiarity and experience with the remaining offenses to
reliably determine what sentence would have been imposed at trial. After weighing
these factors, we are confident that we can reassess the sentence in this case.
CONCLUSION
Our superior court dismissed Charge I and its Specification, and we affirm
only so much of the Specification of The Additional Charge as finds:
[Appellant], U.S. Army, did, at or near Fort Benning,
Georgia, between on or about 1 August 2013 and on or
about 6 October 2013, steal batteries, military property, of
a total value greater than $500, the property of the U.S.
Army.
The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm
only so much of the sentence as provides for a bad-conduct discharge, confinement
for nineteen months, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c),
75(a).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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