United States v. Specialist BRANDON T. PARKER ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
GLANVILLE, YOB, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist BRANDON T. PARKER
United States Army, Appellant
ARMY 20110248
Headquarters, 10th Mountain Division (Light Infantry)
Michael J. Hargis, Military Judge
Colonel Michael O. Lacey, Staff Judge Advocate (pretrial and addendum);
Lieutenant Colonel Olga M. Anderson, Acting Staff Judge Advocate
(recommendation)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA;
Major James A. Ewing, JA (on brief).
26 September 2013
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SUMMARY DISPOSITION ON REMAND
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KRAUSS, Judge:
A military judge, sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of conspiracy, two specifications of
larceny, one specification of soliciting another to commit an offense, and one
specification of stealing mail, in violation of Articles 81, 121, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 921, 934 (2006) [hereinafter UCMJ].
Appellant was sentenced to a bad-conduct discharge, confinement for forty-three
months, and reduction to the grade of E-1. The convening authority approved only
so much of the sentence extending to a bad-conduct discharge, confinement for
thirty-eight months, and reduction to the grade of E-1.
On 23 July 2013, we issued a decision in this case affirming the findings of
guilty and the sentence. On 4 September 2013, in view of United States v. Goings,
72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F.
PARKER — ARMY 20110248
2013), our superior court reversed our decision as to Charge III and its two
specifications (soliciting another to commit an offense and stealing mail in violation
of Article 134, UCMJ) and as to the sentence. The court returned the record of trial
to The Judge Advocate General of the Army for remand to this court to either
dismiss Charge III and its specifications and reassess the sentence b ased on the
affirmed findings or order a rehearing on the affected charge and sentence. We
choose the former as more appropriate under the circumstances of this case.
We recognize that appellant’s misconduct was largely defined by his theft of
mail matter and that the maximum sentence is significantly affected by dismissal of
Charge III and its specifications. However, the affirmed findings of guilty include
appellant’s conviction for conspiring to steal mail matter and two larcenies
associated with his theft of mail matter. In addition, the evidence of appellant’s
theft of mail matter is inextricably intertwined with that of the conspiracy and
larceny charges, and the evidence of wrongful solicitation and theft of mail matter
was otherwise admissible as evidence in aggravation. See United States v. Gaines,
9 C.M.R. 854 (A.F.B.R. 1953); Rule for Court -Martial 1001(b)(4). We therefore
conclude that reassessment is appropriate. See United States v. Sales, 22 M.J. 305(C.M.A. 1986). Applying the principles of Sales, we are satisfied that our
reassessment cures the error concerned and find , under the circumstances of this
case, that appellant would have received an approved sentence at least as severe as a
bad-conduct discharge, confinement for twenty-six months, and reduction to the
grade of E-1 even absent charge of the Article 134 , UCMJ, offenses here dismissed.
Therefore, the findings of guilty of Charge III and its specifications are set
aside and dismissed. The remaining findings of guilty have been affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles of Sales and United States v. Moffeit, 63 M.J. 40(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms only so much of the sentence as provides for a
bad-conduct discharge, confinement for twenty-six 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) and 75(a).
Chief Judge GLANVILLE and Senior Judge YOB concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of
Clerk of Court
Court
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