United States v. Winckelmann , 73 M.J. 11 ( 2013 )

UNITED STATES, Appellee
v.
Douglas K. WINCKELMANN, Lieutenant Colonel
U.S. Army, Appellant
No. 11-0280
Crim. App. No. 20070243
United States Court of Appeals for the Armed Forces
Argued September 17, 2013
Decided December 18, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, J., and EFFRON, S.J., joined. STUCKY and RYAN, JJ.,
each filed separate opinions concurring in the result.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Captain John L.
Schriver (on brief); Captain Brian D. Andes and Captain Kristin
McGrory.
For Appellee: Captain Jessica J. Morales (argued); Major
Catherine L. Brantley and Major Robert A. Rodrigues (on brief);
Major Elizabeth A. Claus and Captain Edward J. Whitford.
Military Judge: David L. Conn
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Winckelmann, No. 11-0280/AR
Chief Judge BAKER delivered the opinion of the Court.
This case is before us following a remand to the lower
court for, among other things, reassessment of the sentence.
The facts upon which Appellant’s convictions rest are detailed
in the lower court’s first opinion in this case as well as our
previous opinion. United States v. Winckelmann, 70 M.J. 403,
404-06 (C.A.A.F. 2011); United States v. Winckelmann
(Winckelmann I), No. ARMY 20070243, 2010 CCA LEXIS 390, at *4-
*8, 2010 WL 4892816, at *1-*3 (A. Ct. Crim. App. Nov. 30, 2010)
(unpublished). The current appeal is addressed to the lower
court’s sentence reassessment for Appellant’s remaining
convictions of one specification of attempted enticement of a
minor, two specifications of indecent acts, two specifications
of obstructing justice, all in violation of Article 134, UCMJ,1
and four specifications of conduct unbecoming an officer in
violation of Article 133, UCMJ.2
This appeal raises two questions.3 First, did the United
States Army Court of Criminal Appeals abuse its discretion by
1
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2012).
2
United States v. Winckelmann (Winckelmann II), No. Army
20070243, 2012 CCA LEXIS 342, 2012 WL 3860024 (A. Ct. Crim. App.
Aug. 30, 2012) (unpublished); Article 133, UCMJ, 10 U.S.C. § 933(2012).
3
The Court granted review of the following issue:
2
United States v. Winckelmann, No. 11-0280/AR
treating Appellant’s case on remand as “within the zone of Sales
reassessment,” rather than ordering a rehearing? United States
v. Moffeit, 63 M.J. 40, 44 (C.A.A.F. 2006) (Baker, J.,
concurring in the result). Second, to what extent, if at all,
should courts of criminal appeals consider the factors
identified in the concurring opinion in Moffeit when determining
whether to conduct a sentence reassessment or, alternatively,
order a sentence rehearing?
We conclude that based on the totality of circumstances,
the Court of Criminal Appeals did not abuse its broad discretion
in either deciding, in the first instance, to reassess the
sentence or in arriving at the reassessed sentence in this case.
Further, we hold that where the Court of Criminal Appeals
conducts a reasoned and thorough analysis of the totality of the
circumstances presented, greater deference is warranted on
review before this Court. However, these factors are
illustrative rather than exhaustive or demonstrative benchmarks.
WHETHER THE ARMY COURT OF CRIMINAL APPEALS, AFTER
DISAPPROVING THE FINDINGS OF GUILTY FOR CHARGE IV AND
ITS SPECIFICATIONS AND AFTER CONSIDERING THIS
HONORABLE COURT’S DECISION DISMISSING SPECIFICATION 3
OF CHARGE III, ERRED BY REASSESSING APPELLANT’S
SENTENCE TO CONFINEMENT, FIRST FROM 31 YEARS TO 20
YEARS (IN THEIR INITIAL DECISION), AND THEN FROM 20
YEARS TO 11 YEARS (IN A SUBSEQUENT DECISION), RATHER
THAN DIRECTING A SENTENCE REHEARING.
3
United States v. Winckelmann, No. 11-0280/AR
BACKGROUND
At trial, Appellant pled guilty to two specifications of
indecent acts and two specifications of unbecoming conduct, all
stemming from allegations that Appellant had videotaped himself
engaged in sexual acts with two others. Contrary to his pleas,
a panel of members convicted him of a variety of other offenses.4
He was sentenced to a dismissal, confinement for thirty-one
years and forfeiture of all pay and allowances. Winckelmann II,
2012 CCA LEXIS 342, at *2, 2012 WL 3860024, at *1. During its
initial review of this case, the United States Army Court of
Criminal Appeals set aside one of three findings of guilty to
attempted enticement of a minor and one finding of guilty of
possession of child pornography. Winckelmann I, 2010 CCA LEXIS
390, at *44, 2010 WL 4892816, at *14. The court reassessed the
4
Ultimately, Appellant was found guilty of several
specifications charged under Article 133 and 134, UCMJ. The
Article 134, UCMJ, offenses were:
1) One specification of possession of child pornography.
2) Three specifications of attempting to entice a minor to
engage in sexual activity.
3) Two specifications of communicating indecent language.
4) Two specifications of indecent acts.
5) Two specifications of obstructing justice.
The Article 133, UCMJ, findings included:
1) Two specifications of engaging in cybersex with whom
Appellant believed to be a person under the age of
sixteen.
2) Two specifications of possessing videotapes of Appellant
engaged in sex acts with two others.
4
United States v. Winckelmann, No. 11-0280/AR
sentence and reduced the approved confinement of thirty-one
years to twenty years. Id.Appellant filed a timely petition in this Court asserting
that the lower court erred by affirming one of the two remaining
enticement findings. He also challenged the findings of guilt
as to the Article 134, UCMJ, offenses on the ground that the
specifications failed to allege the terminal elements. This
Court agreed with Appellant regarding the enticement offense and
dismissed it. 70 M.J. at 409. With respect to the other
Article 134, UCMJ, offenses, the Court remanded for
consideration of those findings in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Id. We affirmed the
remaining findings, vacated the sentence, and returned the case
to the Judge Advocate General of the Army for remand to the
Court of Criminal Appeals “for reassessment of the sentence, or
if it determines appropriate, for the ordering of a rehearing on
sentence.” Id. On remand, the Court of Criminal Appeals
dismissed two Article 134, UCMJ, indecent language findings,
again reassessed the sentence and affirmed eleven years of
confinement. Winckelmann II, 2012 CCA LEXIS 342, at *11, 2012
WL 3860024 at *3. Appellant again filed a timely petition in
this Court asserting that the Court of Criminal Appeals erred by
reassessing the sentence rather than ordering a rehearing on
sentence.
5
United States v. Winckelmann, No. 11-0280/AR
As a result of the lower court’s two reviews of this case
and our previous review, the remaining findings of guilty
include five specifications charged under Article 134, UCMJ,
namely, one specification of attempted enticement of a minor,
two specifications of indecent acts, and two specifications of
obstructing justice. In addition, four findings of guilty of
conduct unbecoming an officer remain. These remaining findings
of guilty together carry a maximum penalty of a dismissal,
forfeiture of all pay and allowances, and fifty-one years of
confinement. However, in the event of a rehearing on sentence,
the convening authority could approve no greater period of
confinement than thirty-one years, the sentence adjudged by the
members at Appellant’s court-martial. The military judge
calculated that Appellant’s maximum exposure at his original
sentencing hearing was 115 years.
DISCUSSION
Three cases are central to defining the lower courts’
authority in this area. Jackson v. Taylor, 353 U.S. 569, 577
(1957), upheld the authority of boards of review to conduct
sentence reassessments in the first instance. United States v.
Sales, 22 M.J. 305 (C.M.A. 1986), set the standard for sentence
reassessment by the lower appellate courts intended to cure
prejudicial error within a framework of broad discretion.
Finally, Moffeit reaffirmed Sales, but a separate concurrence in
6
United States v. Winckelmann, No. 11-0280/AR
the case raised the question whether this Court should identify
factors to be considered in determining whether the lower court
has abused its broad discretion in applying Sales. Moffeit, 63
M.J. at 43 (Baker, J., concurring in the result). Moreover,
some of the courts of criminal appeals have begun applying these
factors. See, e.g., United States v. Certa, No. ACM 38037, 2013
CCA LEXIS 807, at *35, 2013 WL 5460154, at *11 (A.F. Ct. Crim.
App. Sept. 5, 2013) (unpublished); United States v. Gorski, 71
M.J. 729, 738 (A. Ct. Crim. App. 2012). We briefly review each
of these controlling precedents in turn.
In Jackson v. Taylor, the appellant was convicted of
premeditated murder and attempted rape, and received a life
sentence. 353 U.S. at 570. The board of review set aside the
murder conviction, reassessed the sentence and affirmed a term
of confinement of twenty years. Id. Jackson argued before the
Supreme Court that the board should have ordered a rehearing on
sentence and that it lacked authority to impose the twenty-year
sentence to confinement. Id. at 572. In response to this
latter argument, the Court observed that military sentences are
aggregate sentences not apportioned among the various offenses
of which an accused is convicted. Id. at 574. Citing Article
66(c) of the Uniform Code,5 the Court further concluded, “The
board may ‘affirm . . . such part or amount of the sentence, as
5
Article 66(c), UCMJ, 10 U.S.C. § 866(c).
7
United States v. Winckelmann, No. 11-0280/AR
it finds correct . . . .’ That is precisely what the review
board did here.” Id. at 576. The Court noted that Congress
could have required the court-martial to enter a sentence on
each separate offense, which would have made it easier for the
boards of review to conduct reassessments of sentences. Id. at
578-79. However, Congress chose not to do so. The Court also
reflected on some practical difficulties inherent in remanding a
case to a new court-martial for a sentence hearing alone. Id.
at 580. This, the Court noted, “would merely substitute one
group of nonparticipants for another.” Id. The Court went on
to observe that:
Congress thought the board of review could modify
sentences when appropriate more expeditiously, more
intelligently, and more fairly. Acting on a national
basis the board of review can correct disparities in
sentences and through its legally-trained personnel
determine more appropriately the proper disposition to
be made of the cases. Congress must have known of the
problems inherent in rehearing and review proceedings
. . . .
Id. Finally, the Court concluded that Congress could not have
intended that rehearings be required in every case because
“[s]uch a court-martial would be no more capable -- if as
capable -- as a board of review.” Id. at 581 n.12. Although
Jackson conclusively established the review boards’ authority to
reassess sentences in appropriate cases, in light of certain
dicta in Jackson, a certain amount of confusion arose as to the
authority of the boards of review to order a rehearing on the
8
United States v. Winckelmann, No. 11-0280/AR
sentence alone.6 However, what confusion that might have arisen
as a result of the dicta in Jackson was resolved by this Court
in United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959).
The Miller court discussed Jackson and reaffirmed that “a
rehearing limited to sentence alone may be an appropriate and
permissive remedy for the cure of errors not affecting
findings.” 10 C.M.A. at 299, 27 C.M.R. at 373. This consistent
practice has stood since 1959 without legislative amendment by
Congress.
In Sales, this Court defined the standard by which a court
of criminal appeals should determine its capacity to reassess a
sentence. Sales was convicted by members of indecent acts under
Article 134, UCMJ, and sodomy under Article 125,7 UCMJ. 22 M.J.
at 306. He received six months of confinement and a bad-conduct
discharge. Id. The Court of Military Review found the indecent
acts offense multiplicious with the Article 125, UCMJ, offense
and dismissed the indecent acts offense. Id. It affirmed the
Article 125, UCMJ, conviction and reassessed the sentence but
concluded that the adjudged sentence was “clearly appropriate.”
6
This confusion arose from the following statement in Jackson,
“Finally the petitioner suggests that the case should be
remanded for a rehearing before the court-martial on the
question of the sentence. We find no authority in the Uniform
Code for such a procedure and the petitioner points to none.”
353 U.S. at 579.
7
10 U.S.C. § 925.
9
United States v. Winckelmann, No. 11-0280/AR
Id. Sales argued the court’s reassessment of his sentence
deprived him of his statutory right to be sentenced by court
members. Id. This Court affirmed.
In some cases, the Court of Military Review may
conclude that it cannot reliably determine what
sentence would have been imposed at the trial level if
the error had not occurred. Under these
circumstances, a rehearing on sentence is in order. .
. . On other occasions, the Court of Military Review
may be convinced that even if no error had occurred at
trial, the accused’s sentence would have been at least
of a certain magnitude. Under those circumstances the
Court of Military Review need not order a rehearing on
sentence, but instead may itself reassess the
sentence.
Id. at 307. Distinguishing between reassessment under Article
59(a), UCMJ,8 and appropriate-sentence review under Article
66(c), UCMJ, this Court held that “[I]f the court can determine
to its satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity, then a
sentence of that severity or less will be free of the
prejudicial effects of error . . . .” Id. at 308.
This Court returned to Sales in Moffeit, affirming anew the
Sales standard. “[I]f the court can determine to its
satisfaction that, absent any error, the sentence adjudged would
have been of at least a certain severity, then a sentence of
that severity or less will be free of the prejudicial effects of
error.” 63 M.J. at 41. However, the concurrence argued for a
8
10 U.S.C. § 859(a) (2012).
10
United States v. Winckelmann, No. 11-0280/AR
more transparent and predictable process by identifying
illustrative factors this Court should consider in determining
whether a court of criminal appeals has abused its discretion.
Id. at 42.
We take this opportunity to affirm three principles.
First, while there have been many changes to the UCMJ since
Jackson was decided, the Jackson court’s observations regarding
the difficulties inherent in sentence rehearings and that
court’s conclusions regarding the reassessment powers of the
boards of review are as apt today as then. In members cases it
is impossible to remand for a rehearing on sentence before the
same court-martial that convicted the accused. “A court-martial
has neither continuity nor situs and often sits to hear only a
single case. Because of the nature of military service, the
members of a court-martial may be scattered throughout the world
within a short time after a trial is concluded.” Jackson, 353
U.S. at 579.9 Remanding to a new court-martial “merely
substitute[s] one group of nonparticipants in the original trial
for another.” Id. at 580. If, as the Supreme Court concluded
in Jackson, the judge advocates who then comprised the boards of
review could modify sentences “more expeditiously, more
9
The relevant language in Article 63, UCMJ, is virtually the
same as it was at the time Jackson was decided: “Each rehearing
under this chapter shall take place before a court-martial
composed of members not members of the court-martial which first
heard the case.” 10 U.S.C. § 863.
11
United States v. Winckelmann, No. 11-0280/AR
intelligently, and more fairly” than a new court-martial, that
is certainly the case with respect to today’s military judges
sitting on the courts of criminal appeals. Id.Second, in light of the experience, training, and
independence of military judges, courts of criminal appeals act
with broad discretion when reassessing sentences for the reasons
stated in Jackson. “We will only disturb the [lower court’s]
reassessment in order to prevent obvious miscarriages of justice
or abuses of discretion.” United States v. Harris, 53 M.J. 86,
88 (C.A.A.F. 2000) (quoting United States v. Hawes, 51 M.J. 258,
260 (C.A.A.F. 1999) (internal quotation marks omitted)).
Third, and finally, the Sales analysis is based on the
totality of the circumstances presented. In this regard, the
factors we enunciate today are among those illustrative, but not
dispositive, points of analysis we would expect the lower
appellate courts to consider when determining whether to
reassess a sentence or order a rehearing. It is hoped that
these factors will assist the courts of criminal appeals in
carrying out this important function. These include:
(1) Dramatic changes in the penalty landscape and
exposure. Compare Hawes, 51 M.J. at 260, and United
States v. Davis, 48 M.J. 494, 495 (C.A.A.F. 1998),
with United States v. Buber, 62 M.J. 476, 479
12
United States v. Winckelmann, No. 11-0280/AR
(C.A.A.F. 2006), United States v. Riley, 58 M.J. 305,
312 (C.A.A.F. 2003), and Harris, 53 M.J. at 88.
(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. This factor could become more
relevant where charges address service custom, service
discrediting conduct or conduct unbecoming.
(3) Whether the nature of the remaining offenses capture
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.
The Court of Criminal Appeals did not detail its analysis
in this case; nor was it obligated to do so. Going forward,
however, a reasoned analysis will be given greater deference
than otherwise. Here, the record reflects that the lower court
13
United States v. Winckelmann, No. 11-0280/AR
considered the totality of circumstances, including the above
factors, and applied the correct framework. As a result, and in
light of the totality of circumstances, as well as the deference
we give to such decisions, we conclude that the court below did
not abuse its discretion, nor do we discern any obvious
miscarriage of justice. Among other things, Appellant remained
exposed to fifty-one years of confinement, which was otherwise
limited by the thirty-one years adjudged at the original court-
martial. He also remained convicted of five offenses, which
continued to reflect the gravamen of the original charges at
court-martial: use of the Internet to entice a child to have
sex; obstruction of justice; and conduct unbecoming. This also
meant that much of the aggravating evidence introduced at trial
remained relevant and could properly be considered by the Court
of Criminal Appeals during its reassessment analysis.
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
14
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STUCKY, Judge (concurring in the result):
“[A] precedent of [the Supreme] Court must be followed by
the lower federal courts no matter how misguided the judges of
those courts may think it to be.” Hutto v. Davis, 454 U.S. 370,
375 (per curiam), reh’g denied, 455 U.S. 1038 (1982); see United
States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (holding
that a lower court does not have the discretion to overrule the
precedent of a superior court). By discussing at length and in
a favorable light the Supreme Court’s opinion in Jackson v.
Taylor, 353 U.S. 569 (1957), the majority would have us believe
that they have faithfully followed it. Such is not the case.
Jackson specifically asked the Supreme Court to remand his
case for a rehearing on sentence. 353 U.S. at 579. The Supreme
Court refused:
We find no authority in the Uniform Code for such a
procedure and the petitioner points to none. The
reason is, of course, that the Congress intended that
the board of review should exercise this power. This
is true because the nature of a court-martial
proceeding makes it impractical and unfeasible to
remand for the purpose of sentencing alone. See
United States v. Keith, 1 C.M.A. 442, 451, 4 C.M.R.
34, 43 (1952). Even petitioner admits that it would
now, six years after the trial, be impractical to
attempt to reconvene the court-martial that decided
the case originally. A court-martial has neither
continuity nor situs and often sits to hear only a
single case. Because of the nature of military
service, the members of a court-martial may be
scattered throughout the world within a short time
after a trial is concluded. Recognizing the
impossibility of remand to the same court-martial,
petitioner suggests as an alternative that the case
United States v. Winckelmann, No. 11-0280/AR
should be remanded for a rehearing before a new court-
martial. He admits that it would now be impractical
for such a new court-martial to hear all of the
evidence, and that the court would have to make its
sentence determination on the basis of what it could
learn from reading the record. Such a procedure would
merely substitute one group of nonparticipants in the
original trial for another. Congress thought the
board of review could modify sentences when
appropriate more expeditiously, more intelligently,
and more fairly. Acting on a national basis the board
of review can correct disparities in sentences and
through its legally-trained personnel determine more
appropriately the proper disposition to be made of the
cases. Congress must have known of the problems
inherent in rehearing and review proceedings for the
procedures were adopted largely from prior law. It is
not for us to question the judgment of the Congress in
selecting the process it chose.
Id. at 579–80 (emphasis added) (footnotes omitted).
Despite the clear language of Jackson, this Court has
refused to follow it. See, e.g., United States v. Sills, 56
M.J. 239, 239–40 (C.A.A.F. 2002) (per curiam); United States v.
Boone, 49 M.J. 187, 195 (C.A.A.F. 1998); United States v. Sales,
22 M.J. 305, 307–08 (C.M.A. 1986); United States v. Miller, 10
C.M.A. 296, 297, 27 C.M.R. 370, 371 (1959). Instead, we have
required remand for a rehearing on sentence alone when the court
below determines it “cannot reliably determine what sentence
would have been imposed at the trial level if the error had not
occurred,” Sales, 22 M.J. at 307, or when there is a “dramatic
change in the penalty landscape.” United States v. Riley, 58
M.J. 305, 312 (C.A.A.F. 2003) (internal quotation marks
2
United States v. Winckelmann, No. 11-0280/AR
omitted); accord United States v. Buber, 62 M.J. 476, 480
(C.A.A.F. 2006).
In this case, the majority asserts that we ignored Jackson
in the past, and will continue to do so, because “certain dicta”
in the opinion caused “confusion . . . as to the authority of
the boards of review to order a rehearing on the sentence
alone.” Winckelmann, __ M.J. at __ (8–9) & n.6. The statement
in Jackson that there was no authority in the Uniform Code for a
rehearing on sentence alone is neither confusing nor a mere
dictum. 353 U.S. at 579. It is a core holding that this Court
is required to follow.
The majority also affirms a standard for the Courts of
Criminal Appeals to follow in reassessing a sentence: The court
can only affirm a sentence that did not exceed that which would
have been adjudged by the court-martial, absent the error.
Winckelmann, __ M.J. at __ (10) (citing United States v.
Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006); Sales, 22 M.J. at 308).
But the Supreme Court rejected a similar argument in Jackson as
“based on pure conjecture. No one could say what sentence the
court-martial would have imposed [absent the error]. . . .
Military law provides that one aggregate sentence must be
imposed and the board of review may modify that sentence in the
manner it finds appropriate.” 353 U.S. at 578 (emphasis added).
3
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This Court is authorized to “take action only with respect
to matters of law.” Article 67(c), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 867(c) (2012). Therefore, this
Court’s review of a Court of Criminal Appeals’ sentence
reassessment is limited to preventing “‘obvious miscarriages of
justice or abuses of discretion.’” United States v. Nerad, 69
M.J. 138, 142 (C.A.A.F. 2010) (quoting United States v. Jones,
39 M.J. 315, 317 (C.M.A. 1994)).
The reassessed sentence was neither a miscarriage of
justice nor an abuse of discretion. Therefore, I concur in the
judgment of this Court in affirming Appellant’s reassessed
sentence.
4
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RYAN, Judge (concurring in the result):
I agree with Judge Stucky that the Jackson v. Taylor
language about “rehearing on sentence alone is neither confusing
nor a mere dictum,” United States v. Winckelmann, __ M.J. __, __
(3) (C.A.A.F. 2013) (Stucky, J., concurring in the result), but
a binding Supreme Court determination that: (1) the Uniform
Code of Military Justice (UCMJ) does not provide for the Court
of Criminal Appeals (CCA) to remand for a rehearing on sentence
alone; and (2) Congress chose the process of sentence
reassessment by the CCA after the CCA disapproves a finding,
where a rehearing on that finding was not ordered. 353 U.S.
569, 579-80 (1957). But while the Supreme Court in Jackson
appeared to hold squarely that rehearing on sentence alone was
not a legally available option for the CCA, United States v.
Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 (1959),
nonetheless, and inexplicably, held precisely to the contrary
(“[T]he literal but entirely unreasonable construction of
Article 66(d), supra, can easily be avoided merely by
substituting ‘or’ for ‘and,’” to construe the statute as stating
“‘findings or sentence.’”), precedent the majority follows in
addressing the question before us.
Yet no party has asked us to overrule Miller, however
flawed its holding is, let alone explained the reasons for
ignoring stare decisis with respect to a case that has been the
United States v. Winckelmann, No. 11-0280/AR
rule in this Court on an issue that is statutory, rather than
constitutional in nature, for a very long time. See, e.g.,
Flood v. Kuhn, 407 U.S. 258, 282 (1972) (“[Our past decision
produced] an aberration that has been with us now for half a
century, one heretofore deemed fully entitled to the benefit of
stare decisis . . . .”); see also Hilton v. South Carolina Pub.
Rys. Comm’n, 502 U.S. 197, 202 (1991) (“Considerations of stare
decisis have special force in the area of statutory
interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is
implicated, and Congress remains free to alter what we have
done.” (citation and quotation marks omitted)).
Regardless, I disagree with the majority that the CCA is
required to explain its reasoning on the record in order to be
afforded “greater” deference in its decision to reassess the
sentence rather than order a rehearing on sentence.
Winckelmann, __ M.J. at __ (13). It is unclear how one provides
CCAs with more deference than this Court’s extant recognition
that CCAs have a “highly discretionary power.” United States v.
Lacy, 50 M.J. 286, 287 (C.A.A.F. 1999).
In this case, the CCA reassessed the sentence. Given that
the authority to reassess the sentence derives from Article
66(c), UCMJ, 10 U.S.C. § 866(c) (2012), the same highly
deferential review of the reassessed sentence is warranted that
2
United States v. Winckelmann, No. 11-0280/AR
we give to any other review under Article 66(c), UCMJ.
Winckelmann, __ M.J. at __ (3-4) (Stucky, J., concurring in the
result); United States v. Nerad, 69 M.J. 138, 140, 146-47
(C.A.A.F. 2010). I respectfully concur in the result.
3