Sentence Reassessment on Appeal

Military defense counsel who do appellate work are often asked to help get a sentence reduced. What follows applies equally to the Air Force Court of Criminal Appeals, the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals.

The Court of Criminal Appeals, where we as your civilian military defense counsel represent you, the basic rule is that the Court has broad power to determine what is an appropriate sentence that “should be approved." But, the courts cannot give clemency. The law is clear on that because clemency is equitable relief not legal relief. The Court of Appeals for the Armed Forces made that clear in the Nerad case in 20210.

Here is an interesting article about the frequency and reasons for giving sentence relief on appeal, by Maj. Kevin Gotfredson and Capt. Micah Smith,Sentence Relief: At the Air Force Court of Criminal Appeals During the Last 10 Years. 43(3) THE REPORTER 21 (2016). Their research was motivated by public discussion of an "epidemic" number of valid convictions being reversed because of "factual sufficiency." The authors:

• Discuss the scope of authority granted to the military courts of criminal appeals, specifically AFCCA.
• Give a framework to analyze the frequency where AFCCA granted some sentence relief.
• Looked at what influence, if any, the Court of Appeals for the Armed Forces (CAAF) may have had on the sentence review by AFCCA.
• Looked at the confinement relief granted by AFCCA as a quantifiable measure of sentence relief.
• Analyzed cases where sentence relief was granted on the basis of factual sufficiency of the evidence or the appropriateness of the sentence.
• Looked at whether sentence relief shares any connection to the rank of the appellant.

My conclusion based on their review (as a military appellate lawyer)--the sky is not falling, and it continues to be difficult to get any relief, let alone sentence relief on appeal--you must "win" at trial. There are any number of cases where one of several convictions is set-aside for factual sufficiency. However, the court then does a sentence reassessment review. In doing so, the court follows the direction from two significant military cases: United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Winckelmann. Essentially, the court looks at:

1. Dramatic changes in the penalty landscape and exposure.
2. Whether an appellant chose sentencing by members or a military judge alone. Appellate judges are more likely to be certain of what a military judge would have done as opposed to members.
3. Whether 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.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

In the rare case there will be a remand for a re-sentencing hearing.

In most cases, the appellate panel makes their own reassessment. When this happens, most frequently the panel finds the same sentence to be appropriate and affirms it. Here are several examples of from opinions.

The occasional decision says that some charges are dismissed, but then goes on to say the sentence is appropriate because the totality of the specific facts and circumstances show that any judge would have imposed the same sentence regardless of any of the dismissed charges. United States v. Narewski, Army Court of Criminal Appeals is an example of the phenomena.

Many times when the appellant gets relief it is what we call Pyrrhic relief. For example, some months cut from the confinement sentence. But usually the appellant has already served their minimum required confinement and has been released from confinement. Your military defense counsel should advise of these actions and opportunities at the time of your trial. I recently filed a brief with the Air Force Court of Criminal Appeals for sentence appropriateness. When I filed the brief I also filed a motion for expedited review; if the court agrees, there is a chance that a favorable decision will come out in time for the client to be released early. To me, that would be meaningful relief.

As always, we as civilian military defense lawyers are available to discuss your case and the legal issues that may be involved.