U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32378
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UNITED STATES
Appellee
v.
Latavius K. COLLINS
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 29 March 2017
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Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge, confinement for 3 months, and re-
duction to E-1. Sentence adjudged 3 December 2015 by SpCM convened at Avi-
ano Air Base, Italy.
For Appellant: Major Virginia M. Bare, USAF; Captain Allen S. Abrams,
USAF.
For Appellee: Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the Court, in which Chief
Judge DREW and Judge MINK joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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J. BROWN, Senior Judge:
At a judge-alone special court-martial, Appellant was convicted, consistent
with his plea and in accordance with a pretrial agreement, of divers use of
marijuana and divers distribution of marijuana, in violation of Article 112a,
United States v. Collins, No. ACM S32378
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. * The military
judge sentenced Appellant to a bad-conduct discharge, confinement for three
months, and reduction to E-1. As Appellant was credited with 113 days of pre-
trial confinement and the convening authority agreed to direct his immediate
release as a term of the pretrial agreement, Appellant was released from con-
finement once the military judge adjourned the trial.
The pretrial agreement included a provision that any confinement would
be deferred until action and then disapproved by the convening authority. De-
spite this, and without explanation, the convening authority (CA) approved the
sentence as adjudged. We approve all but the three months of adjudged con-
finement.
I. DISCUSSION
Appellant entered into a pretrial agreement with the CA where Appellant
agreed to plead guilty to divers use of marijuana and divers distribution of
marijuana, plead not guilty to a specification of possession of marijuana, enter
into a reasonable stipulation of fact, elect to be tried by military judge alone,
request no witnesses or consultants at Government expense, and, other than a
motion in limine and a request for sentencing credit, waive all waivable mo-
tions. In return, the CA agreed, among other things, to defer any adjudged
confinement until action and approve no confinement.
Appellant satisfied all the terms of the pretrial agreement and the Govern-
ment dismissed with prejudice the possession of marijuana specification. The
staff judge advocate’s recommendation subsequently advised the CA of the
terms of the pretrial agreement and, in accordance with that agreement, ad-
vised the CA to approve all but the confinement. In his clemency submission,
Appellant, while highlighting that the pretrial agreement required the CA to
disapprove the confinement, requested that the CA also disapprove the reduc-
tion in rank.
The addendum to the staff judge advocate’s recommendation, however, de-
parted from the original advice and, without explanation, advised the CA to
approve the findings and sentence as adjudged. The CA’s action approved the
sentence as adjudged, to include the three months of confinement.
In the instant case, the CA’s action was erroneous as it failed to disapprove
the adjudged confinement as required by the pretrial agreement. Although we
could return the record for a corrected CA’s action, we are able to correct the
* Pursuant to a pretrial agreement, the Government dismissed with prejudice a speci-
fication alleging divers possession of marijuana, in violation of Article 112a, UCMJ, 10
U.S.C. § 912a.
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United States v. Collins, No. ACM S32378
error without remanding the case. When a CA fails to take action required by
a pretrial agreement, this court has authority to enforce the agreement. See
United States v. Cox,
46 C.M.R. 69, 72 (C.M.A. 1972). Under Article 66(c),
UCMJ, this court is empowered to “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.” 10
U.S.C. § 866 (emphasis added). We exercise that authority here to enforce the
terms of the pretrial agreement.
II. CONCLUSION
We affirm only so much of the sentence as provides for a bad-conduct dis-
charge and reduction to E-1. The findings and modified sentence are correct in
law and fact, and no further error materially prejudicial to Appellant’s sub-
stantial rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a),
866(c). Accordingly, the findings and modified sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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