United States v. Durant , 55 M.J. 258 ( 2001 )

UNITED STATES, Appellee
v.
Louis J. DURANT III, Sergeant
U. S. Army, Appellant
No. 00-0664
Crim. App. No. 9801661
United States Court of Appeals for the Armed Forces
Argued March 28, 2001
Decided August 1, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in which
SULLIVAN, GIERKE, and BAKER, JJ., joined. SULLIVAN, J., filed a
concurring opinion. EFFRON, J., filed a dissenting opinion.
Counsel
For Appellant: Colonel Adele H. Odegard (argued); Lieutenant
Colonel David A. Mayfield and Major Mary M. McCord (on brief).
For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel
David L. Hayden, Lieutenant Colonel Edith M. Rob, and Major
Anthony P. Nicastro (on brief).
Military Judge: Paul Johnston
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Durant, No. 00-0664/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of dereliction of
duty and two specifications of larceny (totaling $8,800) for the
improper use of an international merchants purchase
authorization card (IMPAC), in violation of Articles 92 and 121,
Uniform Code of Military Justice, 10 USC §§ 892 and 921.
The military judge sentenced appellant to a dishonorable
discharge, confinement for 30 months, and reduction to Private
E-1. Pursuant to a pretrial agreement, the convening authority
approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for 12 months, and reduction to
E-1. In an act of clemency not required by the pretrial
agreement, the convening authority also waived automatic
forfeitures imposed pursuant to Article 58b, UCMJ, 10 USC
§ 858b, for 6 months.
In his matters submitted to the convening authority under
RCM 1105, Manual for Courts-Martial, United States (2000 ed.),1
appellant requested that his sentence to confinement be reduced
to time served (about 5 months at the time of the convening
authority action) and that his bad-conduct discharge be
disapproved. The basis for this request was that his coactor,
1
All Manual provisions are cited to the current versions, which are identical
to the ones in effect at the time of appellant’s court-martial.
2
United States v. Durant, No. 00-0664/AR
Staff Sergeant (SSG) Cochrane, received a sentence that did not
include either confinement or a discharge.
Appellant again raised the issue of disproportionately
harsh sentencing before the Army Court of Criminal Appeals.
Prior to deciding the case, the Court of Criminal Appeals
granted appellant’s motion for attachment of an authenticated
copy of the record of trial in the general court-martial case of
United States v. Staff Sergeant Garland J. Cochrane, Army No.
9900228. After review, the lower court affirmed the findings
and sentence in appellant’s case in an unpublished decision
memorandum.
We hold that appellant has failed to show an abuse of
discretion or obvious miscarriage of justice.
I. FACTUAL BACKGROUND
This case presents the unique situation of determining
whether Article 66, UCMJ, 10 USC § 866, requires a Court of
Criminal Appeals to mitigate a sentence, which that court
otherwise determines to be appropriate, simply because an
appellant’s coactor receives substantially less punishment at
his or her court-martial.2
2
The granted issue in this case is:
WHETHER APPELLANT’S DISPROPORTIONATELY HARSH SENTENCE, COMPARED
WITH THE SENTENCE RECEIVED BY HIS CO-ACTOR, WARRANTS APPELLATE
RELIEF.
3
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Although charged differently by two separate commands,
appellant and SSG Cochrane were essentially coconspirators. The
stipulations of fact, introduced at the courts-martial of
appellant and SSG Cochrane, show that both noncommissioned
officers (NCOs) were IMPAC program cardholders. IMPAC cards are
issued in order to buy supplies for a particular military unit
efficiently; they are not to be used for personal purchases.
SSG Cochrane was the approving official for purchases made by
several cardholders, to include appellant, within his 63d
Ordnance Battalion. SSG Cochrane was stationed at Fort Dix, New
Jersey; appellant was assigned to Fort Monmouth, New Jersey.
Each installation had its own general court-martial convening
authority.
In January 1996, SSG Cochrane approached appellant, whom he
supervised, and initiated a scheme: appellant would make
unauthorized purchases of personal items with his IMPAC card for
both himself and SSG Cochrane, and SSG Cochrane would approve
the purchase of these items and authorize payment with
government funds. Over the next 2 years, appellant made over 90
unauthorized purchases totaling more than $30,000 for himself,
SSG Cochrane, and others. During this period of time, appellant
progressively increased the amount of purchases that he
illegally made with his IMPAC credit card, knowing that SSG
Cochrane would approve the purchases and cover for him. The
4
United States v. Durant, No. 00-0664/AR
record shows that SSG Cochrane received just over $4,000 worth
of ill-gotten goods, purchased by appellant on his behalf.
Appellant illegally purchased for himself, with SSG Cochrane’s
approval, goods totaling about $6,000.
SSG Cochrane was arraigned at Fort Monmouth, New Jersey, on
November 24, 1998, the same day that appellant pled guilty to
his charges before a military judge sitting as a general court-
martial. During SSG Cochrane’s arraignment, he requested and
was granted the option of deferring his decision on forum
selection. SSG Cochrane’s next session of his general court-
martial was held on February 24, 1999, at Fort Dix, New Jersey.
In the interim, he negotiated a pretrial agreement with the Fort
Dix general court-martial convening authority that limited his
confinement to 15 months and any discharge adjudged to one no
more severe than a bad-conduct discharge, and required the
Government to dismiss four of the six charges against him.
The presiding judge, Judge Johnston, was the same judge who
presided over appellant’s trial. SSG Cochrane requested, as was
his right, officer and enlisted members to sentence him
following his guilty plea to one charge and specification of
conspiracy with appellant, and eight specifications of larceny
totaling over $4,000. The members sentenced SSG Cochrane to be
reduced to E-3 and to pay a fine of $4,200. SSG Cochrane was
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United States v. Durant, No. 00-0664/AR
discharged from the Army on March 26, 1999, with an honorable
discharge, at the expiration of his term of service.
II. DISCUSSION
Congress has vested responsibility for determining sentence
appropriateness in the Courts of Criminal Appeals. “The power
to review a case for sentence appropriateness, which reflects
the unique history and attributes of the military justice
system, includes but is not limited to considerations of
uniformity and evenhandedness of sentencing decisions.” United
States v. Sothen, 54 M.J. 294, 296 (2001), citing United States v.
Lacy, 50 M.J. 286, 287-88 (1999).
The role of this Court in cases such as the one at bar is
to determine, as a matter of law, whether a Court of Criminal
Appeals abused its discretion or caused a miscarriage of justice
in carrying out its highly discretionary “sentence
appropriateness” role. See id.; United States v. Fee, 50 M.J. 290
(1999). In so doing, we examine three questions of law: “(1)
whether the cases are closely related ...; (2) whether the cases
resulted in ‘highly disparate’ sentences; and (3) ... whether
there is a rational basis for the differences between [these]
... cases.” See Lacy, 50 M.J. at 288.
Sentence comparison does not require sentence equation.
See United States v. Ballard, 20 M.J. 282 (CMA 1985); United
States v. Snelling, 14 M.J. 267 (CMA 1982).
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Both sides agree that Lacy controls the disposition of this
case, and that the courts-martial of appellant and SSG Cochrane
are closely related. Appellate defense counsel maintain that
the sentences are highly disparate on their face because one NCO
received no punitive discharge and no confinement while the
other received a punitive discharge and a year’s confinement
(after modification in accordance with the pretrial agreement).
Citing Lacy, the Government contends that the sentences are not
highly disparate: “The test in such a case is not limited to a
narrow comparison of the relevant numerical values of the
sentences at issue, but also may include consideration of the
disparity in relation to the potential maximum punishment.”
50 M.J. at 289.
In addition to Lacy, two other recent cases are
instructive. In Fee, supra, the appellant received a sentence
that included a dishonorable discharge and 6 years’ confinement
(confinement in excess of 36 months was suspended). Her husband
received a sentence that included a bad-conduct discharge and 15
months’ confinement. The convictions of both Fee and her
husband stemmed from their illegal use and distribution of
various controlled substances.
The Navy-Marine Corps Court of Criminal Appeals determined
that the cases were closely related but the sentences were not
highly disparate. The lower court then found two factors which
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United States v. Durant, No. 00-0664/AR
provided a rational basis for differences in the sentences. See
Fee, 50 M.J. at 291. This Court found it unnecessary to decide
whether the two sentences were highly disparate, thus leaving
the lower court’s finding that the two sentences were not highly
disparate. We found that there was no abuse of discretion or
miscarriage of justice in the lower court’s judgment because the
factors which were used to justify the differences in sentences
were indeed logical and rational.
In United States v. Noble, 50 M.J. 293 (1999), a case that
involved differences in initial disposition of cases rather than
sentence uniformity, this Court found no abuse of discretion or
miscarriage of justice in the lower court’s holding. Noble, a
Marine Corps Staff Sergeant, was convicted, among other things,
of adultery, obstruction of justice, and fraternization. His
coactor in a sexual escapade with lower ranking women Marines
was allowed to leave the Marine Corps with an honorable
discharge, pursuant to an early-separation program, without ever
facing a court-martial. Even though Noble was sentenced to a
bad-conduct discharge and 6 months’ confinement, both the Court
of Criminal Appeals and this Court found that appellant Noble’s
sentence was appropriate.
Unfortunately, we are forced to examine the issues of
sentence disparity and appropriateness in this case without a
considered, written opinion from the experienced judges of the
8
United States v. Durant, No. 00-0664/AR
Court of Criminal Appeals. See id. at 295; United States v.
Hawes, 51 M.J. 258, 260 (1999); United States v. Cook, 46 M.J. 37,
39 (1997). In cases such as the one at hand, involving a unique
sentencing issue of first impression, analysis of the facts and
the law applicable to those facts by the Courts of Criminal
Appeals, with their special expertise, is extremely beneficial.
Sound articulation of their rationale by the Courts of Criminal
Appeals avoids speculation and promotes judicial economy.
The military justice system promotes sentence uniformity
through Article 66 and the requirement that the Courts of
Criminal Appeals engage in a sentence appropriateness analysis.
While the United States Federal District Courts attempt to
control disparate treatment of similarly situated defendants
through sentencing guidelines, analogies to the other federal
system of criminal justice are helpful.3
“[P]rosecutorial charging, plea, and motion practices are
... a well-spring of sentencing disparity.... [P]rosecutors
have always enjoyed great discretion in deciding what cases to
pursue and what charges to bring.” United States v. Rodriguez,
162 F.3d 135, 151 (1st Cir. 1998), quoting Kate Stith & Jose´ A.
Cabranes, Fear of Judging: Sentencing Guidelines in the Federal
Courts 140-41 (1998). As this case reflects, charging decisions
3
See, e.g., the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1987
(1984), codified at 18 USC § 3551 et seq. and 28 USC §§ 991-98.
9
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by commanders in consultation with their trial counsel, as well
as referral decisions by convening authorities after advice from
their Staff Judge Advocates, can certainly lead to differences
in sentencing.
Here, appellant was charged with two specifications of
larceny covering two distinct periods of time (one for the 18
months prior to appellant’s deployment to Bosnia and the other
for the 6 months after his return from Bosnia). SSG Cochrane,
on the other hand, was charged with 8 specifications of larceny.
Accordingly, appellant was facing a maximum sentence that
included 20 years’ confinement for his larcenous activity,
whereas SSG Cochrane was facing a potential confinement of 80
years for the larceny offenses. See para. 46e(1)(c), Part IV,
Manual, supra. Yet appellant’s thefts netted him a higher value
of stolen goods.
Neither charging decision was unreasonable, nor the result
of some type of invidious, constitutionally impermissible
discrimination. Just as “disparity in sentencing among
codefendants is not, by itself, a sufficient ground for
attacking an otherwise proper sentence under the [federal
sentencing] guidelines,” the military system must be prepared to
accept some disparity in the sentencing of codefendants,
provided each military accused is sentenced as an individual.
See United States v. Taylor, 991 F.2d 533, 536 (9th Cir. 1993),
10
United States v. Durant, No. 00-0664/AR
quoting United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.
1991); see also United States v. Bonnet-Grullon, 212 F.3d 692
(2d Cir. 2000); United States v. Torres, 81 F.3d 900 (9th Cir.
1996); United States v. Alahmad, 211 F.3d 538 (10th Cir. 2000).
Similarly, federal courts have held that since the
guidelines were enacted to promote uniformity in sentencing
among the federal courts trying federal crimes, federal district
courts may not depart from sentencing guidelines in order to
equalize acknowledged disparities between state and federal
sentences for coactors. See United States v. Snyder, 136 F.3d
65, 69-70 (1st Cir. 1998); United States v. Vilchez, 967 F.2d
1351 (9th Cir. 1992).
Without analysis from the court below as to whether the
sentences are highly disparate, we will assume, without
deciding, that appellant has met his burden of demonstrating the
sentences are highly disparate. See United States v. Sothen,
supra. Accordingly, we must determine whether or not the
Government has presented a rational basis for the assumed high
degree of disparity. Since the lower court failed to articulate
its rationale for affirmance, we will affirm only where the
respective records of trial clearly manifest differences in
these two soldiers’ cases that explain the respective sentences.
11
United States v. Durant, No. 00-0664/AR
This is not a case where we must decide whether the
proverbial scheming Fagin is more culpable than the boy
pickpocket Oliver.4 Appellant presented his sentencing authority
with 10 years of credible service, to include tours in both the
Gulf War and Bosnia. However, the three witnesses who testified
on his behalf, to include the Company First Sergeant and
Commander, were lukewarm in their assessment of appellant’s
future potential. Their testimony was to the effect that
“appellant was above average for a supply sergeant”; “I would
probably hire him again knowing about the crime”; “His duty
performance was pretty good”; “I have known two supply
sergeants, appellant was better than the first one.” Appellant
testified, expressed remorse for his crimes, explained that he
committed the thefts because he did not think he would get
caught, and admitted that he could “never regain that trust”
which he had violated. He did not ask to remain on active duty.
The extenuation and mitigation presented at SSG Cochrane’s
trial, albeit summarized in his record of trial, is more
substantive. The defense called four witnesses, ranging in rank
from Sergeant First Class to Captain, who had known SSG Cochrane
at different locations and times during his 10-year career.
Captain Sargent, who was serving as a troop commander in the
Third Armored Cavalry Regiment at the time of his trial
4
See Charles Dickens’s Oliver Twist (1838).
12
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testimony, described SSG Cochrane’s duty performance as
“outstanding in every facet.” He added: “SSG Cochrane’s
military character and professional demeanor was impeccable as
far as appearance, soldier skills, everything that counts as
being a soldier.” Command Sergeant Major (CSM) Carey, the CSM
of a Ranger training battalion at the time, testified to SSG
Cochrane’s exemplary military character and noted that SSG
Cochrane “accomplished all missions.” Significally, all of the
active duty soldiers testifying on SSG Cochrane’s behalf said he
had either good or outstanding rehabilitative potential.
SSG Cochrane’s wife and three children were also present in
court. Mrs. Cochrane testified and begged the members not to
send her husband to jail. Finally, SSG Cochrane testified that
he would welcome a second chance to return to the Army at any
rank. In his own summarized words, “there would not be a better
soldier if given a second chance.”
Our review is limited to the legal questions whether the
cases are “closely related,” whether the sentences are “highly
disparate,” and if so, whether there is a “rational basis” for
the difference. Lacy, 50 M.J. at 288. Having assumed that the
cases are closely related and the sentences are highly
disparate, the differences in mitigation evidence reviewed above
demonstrate that there is a rational basis for the differences
13
United States v. Durant, No. 00-0664/AR
in sentences. Therefore, we must, as a court of law, decline to
grant relief on the basis of Lacy.
While the mitigating evidence in the two cases may well
explain why appellant and SSG Cochrane received different
sentences, it does not answer appellant’s claim that his
sentence is neither uniform nor appropriate. Sentence
uniformity and appropriateness are matters exclusively within
the providence of the Courts of Criminal Appeals. In light of
all the evidence, we conclude that the Court of Criminal Appeals
did not abuse its discretion in reviewing appellant’s sentence
for appropriateness and uniformity.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
14
United States v. Durant, 00-0664/AR
SULLIVAN, Judge (concurring):
The Uniform Code of Military Justice provides that an accused
may be tried by a court-martial of members or a court-martial
composed of a military judge alone. Article 16, UCMJ, 10 USC §
816. This optional procedure alone may lead to court-martial
sentences in closely related cases which are not the same, and
that is what happened in this case. Appellant’s confederate
received from a court of members a sentence consisting of a
reduction from E-6 to E-3 and a fine of $4,200. Appellant
received from a military judge a sentence of a dishonorable
discharge, confinement for 30 months, and reduction from E-5 to
E-1. The convening authority, pursuant to a pretrial agreement,
reduced this sentence to a bad-conduct discharge, confinement for
12 months, and reduction to E-1.
The Court of Criminal Appeals is statutorily required to
ensure that a military accused receives a correct and appropriate
sentence. Article 66(c), UCMJ, 10 USC § 866(c). In United
States v. Lacy, 50 M.J. 286, 287-88 (1999), we recognized that the
Court of Criminal Appeals is primarily responsible for ensuring
at least “relative uniformity” in sentencing. We said:
The power to review a case for sentence
appropriateness, including relative
uniformity, is vested in the Courts of
Criminal Appeals, not in our Court, which
is limited to errors of law. Compare Art.
United States v. Durant, 00-0664/AR
66(c) with Art. 67(c), UCMJ, 10 USC §
867(c)(1994); see United States v.
Christopher, 13 USCMA 231, 236, 32 CMR
231, 236 (1962). With respect to
reviewing the actions of the Courts of
Criminal Appeals on issues of sentence
appropriateness, our review is limited to
preventing “obvious miscarriages of
justice or abuses of discretion.” United
States v. Dukes, 5 M.J. 71, 73 (CMA 1978);
see United States v. Henry, 42 M.J. 231, 234
(1995).
Nevertheless, in Lacy, we further delineated when our Court
could find an abuse of discretion by the appellate court below.
We said:
Our review of a decision from a Court of
Criminal Appeals in such a case is limited
to three questions of law: (1) whether the
cases are “closely related” (e.g.,
coactors involved in a common crime,
servicemembers involved in a common or
parallel scheme, or some other direct
nexus between the servicemembers whose
sentences are sought to be compared); (2)
whether the cases resulted in “highly
disparate” sentences; and (3) if the
requested relief is not granted in a
closely related case involving a highly
disparate sentence, whether there is a
rational basis for the differences between
or among the cases.
Id at 288. If evidence exists in the record from which the
service appellate court could conclude that a rational basis
existed for a “highly disparate” sentence in a closely related
case, we must affirm the Court of Criminal Appeals denial of
sentence relief.
2
United States v. Durant, 00-0664/AR
Turning to the evidence of record in this case, I note that
appellant did not request to remain in the Army, but his
confederate did. Compare Record at 98 (appellant’s unsworn
statement) with Cochrane Record at 32 (SSG Cochrane’s unsworn
statement). Appellant also had a record of military performance
that was obviously inferior to his confederate. Compare Record
at 85 (appellant’s first sergeant noted that he would try to
replace appellant as Supply Sergeant if his company went to war)
with Cochrane Record at 28 (SSG Cochrane’s Command Sergeant Major
stated, “SSG Cochrane’s duty performance during that time [in
Hawaii] was excellent. SSG Cochrane’s military character was
exemplary. . . . SSG Cochrane explained what he did about
stealing government property. I believe SSG Cochrane has good
rehabilitative potential. I know he can still do great things
for the Army.”). Appellant also stole merchandise worth more
money than SSG Cochrane did. Compare Record at 20-21
(stipulating that appellant stole goods valued at at least
$30,000) with Cochrane Record at Charge Sheet (charging SSG
Cochrane with theft of property worth $4,144.44). Finally, SSG
Cochrane offered powerful mitigation witness testimony which
appellant did not. See, e.g., Cochrane Record at 26 (SSG
Cochrane’s supervisor at the Casualty Mortuary Affairs Office
noted his “excellent” duty performance and “positive” attitude,
even in light of a pending court-martial). Based on this
evidence in the record, I conclude that there is a rational basis
3
United States v. Durant, 00-0664/AR
for the disparity between the sentences of appellant and SSG
Cochrane, per our holding in Lacy.
Finally, I personally share Judge Effron’s view that
articulation by the Court of Criminal Appeals of the basis for
its conclusion that highly disparate sentences in closely related
cases are rational will promote the interests of fairness in the
military justice system. Nevertheless, as I said before, I am
“aware of no requirement of law that appellate courts in general
or a court of military review in particular must articulate its
reasoning on every issue[.]” United States v. Matias, 25 M.J. 356,
363 (CMA 1987). And I refuse to do so under the circumstances in
this case today. Accordingly, I affirm.
4
United States v. Durant, 00-0664/AR
EFFRON, Judge (dissenting):
As noted in the majority opinion, our decision in United
States v. Lacy, 50 M.J. 286 (1999), provides that the issue of
sentence appropriateness raises three questions of law: (1)
whether the cases are closely related; (2) whether the sentences
are highly disparate; and (3) whether there is a rational basis
for the disparity.
There is no dispute that appellant’s case was closely
related to that of his coactor. The highly disparate nature of
the sentences is reflected in the fact that the coactor received
no discharge, no confinement, a reduction to E-3, and a fine of
$4,200, while appellant’s sentence included a punitive discharge
and confinement for 15 months.
With respect to the question of whether there is a rational
basis for the disparity, the responsibility for making such a
determination under Article 66, UCMJ, 10 USC § 866, rests with
the Court of Criminal Appeals, not with this Court. I agree
that the Courts of Criminal Appeals are not required to
articulate reasons for their sentence-appropriateness
determinations in all cases. When there are closely related
cases involving highly disparate sentences, however, it is
particularly critical for the lower court to provide some
explanation of its decision on the question of a rational basis
for the disparity. This is not an unduly onerous task; there
United States v. Durant, 00-0664/AR
are relatively few cases involving coactors, and even fewer
involving highly disparate sentences.
In such a case, a Court of Criminal Appeals possesses a
unique expertise that places it in an ideal position to
determine whether there exists a rational basis for the sentence
disparity. This special expertise is derived from a number of
factors, such as the regularity with which the Courts of
Criminal Appeals examine cases for sentence appropriateness,
relative to the small number of sentence-appropriateness cases
decided by our Court; and the active-duty status of most judges
on the Courts of Criminal Appeals, which typically affords them
recent field experience, including exposure to a broad range of
courts-martial and alternative dispositions not within the
routine jurisdiction of our Court.
A Court of Criminal Appeals might properly determine that a
sentence adjustment is not required where the sentence at issue
is found to be objectively appropriate and where it finds that
the disparity is largely the result of the coactor’s relatively
lenient sentence. We cannot assume that the Court of Criminal
Appeals made such a determination in this case, particularly in
view of factors that heighten concerns about the disparity
between appellant’s sentence and that of his coactor. For
example, factors such as the status of the coactor as the more
senior noncommissioned officer —— and the fact that the coactor
2
United States v. Durant, 00-0664/AR
was the person who initiated the crime —— underscore the need
for a reasoned explanation of the already significant disparity
between the sentences. In such as the present appeal,
confidence in the fairness of the military justice system
requires an articulation by the Court of Criminal Appeals of its
reasons for affirming appellant’s sentence. I respectfully
dissent, and would remand this case to the Court of Criminal
Appeals.
3