United States v. Sothen , 54 M.J. 294 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Galen E. SOTHEN, Jr., Aviation Ordnanceman First Class
U.S. Navy, Appellant
No. 00-0200
Crim. App. No. 98-0738
United States Court of Appeals for the Armed Forces
Argued October 12, 2000
Decided January 5, 2001
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.
Counsel
For Appellant: David P. Sheldon (argued); Eugene R. Fidell and Lieutenant
Mari-Rae Sopper, JAGC, USNR (on brief).
For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR (argued);
Colonel Kevin M. Sandkuhler, USMC (on brief).
Amicus Curiae Urging Reversal: Lieutenant Colonel Adele H. Odegard,
Lieutenant Colonel David A. Mayfield, Major Jonathan F. Potter, and Captain
Kevin J. Mikolashek – For the United States Army Defense Appellate Division.
Military Judge: James. D. Rockwell
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Sothen, No. 00-0200/NA
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of
conspiracy to commit murder, two specifications of solicitation
to commit murder, and adultery, in violation of Articles 81 and
134, Uniform Code of Military Justice, 10 USC §§ 881 and 934,
respectively. He was sentenced to a dishonorable discharge,
confinement for 25 years, total forfeitures, and reduction to
E-1. The convening authority suspended all adjudged forfeitures
greater than $600 pay per month for 6 months and waived the
automatic forfeiture of pay for 6 months, directing payment of
all such monies via allotment to appellant’s wife. The Court of
Criminal Appeals affirmed in an unpublished opinion.
On appellant’s petition, we granted review of the following
issues:
WHETHER APPELLANT’S APPROVED SENTENCE TO
CONFINEMENT CONSTITUTES AN OBVIOUS
MISCARRIAGE OF JUSTICE OR AN ABUSE OF
DISCRETION BECAUSE HIS SENTENCE OF 25 YEARS
WAS MORE THAN EIGHT TIMES GREATER THAN HIS
CO-DEFENDANT’S SENTENCE OF 3 YEARS.
WHETHER THE GOVERNMENT FAILED TO MEET ITS
BURDEN TO PROVE A RATIONAL BASIS FOR THE
HIGHLY DISPARATE SENTENCES GIVEN TO
APPELLANT AND HIS CO-DEFENDANT.
WHETHER, IN PERFORMING ITS SENTENCE
APPROPRIATENESS ANALYSIS GIVEN TWO “CLOSELY
RELATED CASES,” THE COURT OF CRIMINAL
APPEALS ERRED IN DISREGARDING THE SENTENCE
OF A CIVILIAN CO-DEFENDANT BECAUSE THE
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MILITARY AND CIVILIAN SYSTEMS HAVE DIFFERING
APPROACHES TO SENTENCING PRINCIPLES AND THE
ADMINISTRATION OF PUNISHMENT.
For the reasons set forth below, we affirm the decision of the
Court of Criminal Appeals.
I. Background
Appellant, who enlisted in the Navy in 1978, was married in
1979 and remained married to his wife Judy during his military
service through the events pertinent to this appeal. In 1995,
they purchased a house in her hometown of Knoxville, Tennessee.
When appellant received orders to the Naval Support Activity,
Memphis, his wife and their son remained in Knoxville while he
lived approximately 200 miles away in Memphis. Appellant
anticipated retiring and returning to Knoxville upon completion
of his assignment at Memphis.
In 1996, appellant entered into an intimate relationship
with Ms. Marney Steen while in Memphis. As the relationship
deepened, appellant and Steen took steps to terminate
appellant's marriage by arranging for the murder of appellant's
wife. Appellant, in Ms. Steen's presence, asked James Warthen
to commit the murder. Warthen declined, but said that he knew
of a person, Baxter Holland, who would do so. Warthen arranged
for appellant and Steen to meet with Holland, who, unbeknownst
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to them, was an informant for the Shelby County Police
Department. These arrangements resulted in a series of meetings
involving appellant, Steen, and Holland, at which Holland wore a
hidden recording device. At these meetings, appellant and Steen
engaged in various conversations about the proposed murder,
which resulted in the arrest of both appellant and Steen.
Steen pled guilty in Tennessee state court proceedings to one
count of solicitation to commit murder, which resulted in a
sentence to 3 years’confinement and a $500 fine. As noted
above, appellant's sentence included confinement for 25 years,
total forfeitures, reduction to E-1, and a dishonorable
discharge.
II. Review of Sentences by the Courts of Criminal Appeals
Article 66(c) of the UCMJ, 10 USC § 866, provides the
Courts of Criminal Appeals with broad discretion to determine
whether a sentence "should be approved," a power that has no
direct parallel in the federal civilian sector. See United
States v. Lacy, 50 M.J. 286, 287-88 (1999). 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
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evenhandedness of sentencing decisions. See id.; see also
United States v. Boone, 49 M.J. 187, 191-92 (1998).
The Courts of Criminal Appeals are required to engage in
sentence comparison only “in those rare instances in which
sentence appropriateness can be fairly determined only by
reference to disparate sentences adjudged in closely related
cases.” United States v. Ballard, 20 M.J. 282, 283 (CMA
1985)(quoting lower court’s unpublished opinion). An appellant
who asks the Court of Criminal Appeals to engage in sentence
comparison bears the burden of demonstrating that any cited
cases are “closely related” to the appellant’s case, and that
the sentences are “highly disparate.” Lacy, supra at 288. If
the appellant meets that burden, or if the court raises the
issue on its own motion, the burden shifts to the Government to
show a rational basis for the disparity. Id.
Our review of decisions by the Courts of Criminal Appeals
on issues of sentence appropriateness is limited to the narrow
question of whether there has been an “obvious miscarriage[]of
justice or abuse[]of discretion.” Id., quoting United States v.
Dukes, 5 M.J. 71, 73 (CMA 1978).
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III. Sentence Comparison by the Court of Criminal Appeals
The Court of Criminal Appeals concluded that appellant’s
case was “closely related” to that of his civilian co-actor, Ms.
Steen. The court also found the respective sentences to be
highly disparate. The court concluded, however, that there were
“many good and cogent reasons in the record of trial that
explain the disparity between the two sentences awarded.”
Unpub. op. at 6. The court cited the following reasons: (1)
the parties were tried by two different sovereigns; (2) while it
is appropriate to consider closely related civilian cases,
sentence comparison between civilian and military cases is less
persuasive than comparison among courts-martial in light of the
differences between civilian and military approaches to
sentencing and punishment; (3) appellant was convicted of
multiple serious offenses, while his co-actor was convicted only
of a single count of solicitation; (4) the charges against
appellant were contested, while the conviction of the civilian
co-actor was based on a voluntary, negotiated plea of guilty;
and (5) the sentence of appellant’s co-actor reflected the fact
that she had agreed to assist the prosecution by testifying
against appellant.
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Appellant contends that the lower court abused its
discretion in affirming his sentence without “cogent reasons.”
Appellant takes the position that the reasons articulated by the
court below do not justify the significant disparity in the
sentences, that the court placed too much emphasis on Ms.
Steen’s guilty plea, and that the court did not give sufficient
weight to her culpability or to appellant’s record of service.
The Government, on the other hand, contends that any deficiency
in sentence comparison is immaterial because, in the
Government’s view, it is not permissible for the Courts of
Criminal Appeals to compare military and civilian sentences.
With respect to the Government’s argument, we note that
there is nothing in the plain language of Article 66, in its
legislative history, or in our case law that would preclude the
Courts of Criminal Appeals from engaging in sentence comparison
when there is a closely related case (e.g., a civilian co-actor)
with a highly disparate sentence. To the extent that Article
66’s legislative history and much of our case law discuss
sentence uniformity within the military justice system, this
simply reflects the fact that most closely related cases involve
military relationships. It does not preclude consideration of
cases involving military and civilian co-actors. With respect
to appellant’s argument, we note that all of the factors cited
by appellant involve pertinent considerations on the question of
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sentence appropriateness, but they do not demonstrate that the
decision of the court below constituted an abuse of discretion
or an obvious miscarriage of justice. See Lacy, supra.
The considerations articulated by the court below provide a
legally sufficient justification for the disparity between the
two sentences. The court properly considered the treatment of
appellant’s co-actor under the civilian justice system, and
noted a number of variances that could have reasonably accounted
for the differential sentences. These factors, specifically
enumerated by the court, meet the rational basis standard set
forth in Lacy.
IV. Conclusion
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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