However, once that deal is signed, the judge accepts it, and it is now on appeal, it is hard to get the appellate court to reduce the sentence that is actually adjudged so long as it is within the specified limits of the deal and does not contain any clause that violates public policy. United States v. Spencer from the Navy-Marine Corps Court of Criminal Appeals is one example of how the appeals court looks at the sentence appropriateness where there is a pretrial agreement.

The Navy–Marine Corps Court of Criminal Appeals (NMCCA) reviewed LCpl Spencer’s sentence de novo under the pre‑2023 version of Article 66(d)(1), UCMJ. That statute authorizes the service courts to approve only so much of the sentence as they find “correct in law and fact” and, on the whole record, “should be approved.” Congress removed this text when it overhauled military sentencing in the Fiscal Year 2022 NDAA, but the new regime applies only to offenses occurring on or after 27 January 2023, so the legacy standard controlled here.

Applying that standard, the court reiterated several long‑standing principles: (1) sentence appropriateness review is a matter of law that the court exercises independently; (2) the court must give the accused the punishment he deserves to ensure justice; and (3) it must individually assess both the gravity of the offense and the character of the offender. The court possesses wide latitude to mitigate a legally valid sentence, yet it may not dispense pure clemency—an executive, rather than judicial, function. United States v. Lane frames the de novo review mandate; Healy and Snelling stress individualized proportionality; and Nerad distinguishes sentence tailoring from clemency.

Key facts

Spencer pled guilty, under a negotiated plea agreement, to stealing merchandise from a Marine Corps Exchange on four occasions over eight days. After an initial theft with a fellow Marine, he returned three more times—twice on the same day—to take high‑value items ranging from clothing to electronics. He deliberately circumvented store security and kept the goods for personal use. The agreement left the military judge free to adjudge, but not obligated to impose, a bad‑conduct discharge; it also capped confinement. The judge recommended suspending confinement—but not the discharge—in light of Spencer’s post‑offense reform efforts. The convening authority approved the adjudged sentence.

Analysis

• Legal ceiling. The adjudged punishment neither exceeded the presidential maximums under Article 56(a) nor breached the confinement and punitive‑discharge limits the plea agreement imposed. Reviewing courts will not disturb a sentence that remains within both the UCMJ ceiling and the bargained‑for cap.
• Standard‑of‑review discipline. By invoking Lane and its progeny, the panel correctly treated sentence appropriateness as a question of law—distinct from factual or legal sufficiency—and reviewed it without deference to the trial court’s discretion. The judges therefore asked the right question: “Does this appellant deserve this sentence on this record?”
• Individualized proportionality. The panel weighed Spencer’s repetitive, escalating thefts, the deliberate evasion of security, and the significant value of the property against the mitigating evidence of rehabilitation. That balanced assessment comported with the individualized‑justice mandate of Snelling and Healy.
• Clemency vs. justice. Nerad cautions that Article 66 power must operate under an articulable legal standard, not raw equity. The court honored that boundary by declining to grant outright clemency; instead, it verified that the punishment matched the misconduct and the plea‑agreement expectations.
• Plea‑agreement deference. The panel emphasized that Spencer freely negotiated the agreement and reaped its benefits. Echoing NMCCA precedent in Avellaneda, the court prudently refrained from “second‑guessing” the bargained sentence absent legal error or manifest injustice. Findlaw

Conclusion

The NMCCA performed a textbook Article 66 sentence‑appropriateness review: it applied the correct legal standard, conducted a fact‑intensive proportionality analysis, respected the limits of judicial power, and declined to intrude upon the negotiated plea framework. Given Spencer’s serial thefts and the agreement’s caps, the panel reasonably concluded that the approved sentence was lawful, just, and not unduly severe.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid an ineffective assistance of counsel claim, such as in Padilla v. Kentucky, please ensure (especially for those supervising line Defense Counsel) that the defense attorney advises the client of a mandatory, and thus ‘direct’ consequence of such a sentence, viz., a federal felony, especially if they are avid hunters, target shooters, skeet shooters, etc., they cannot possess firearms or ammunition!

_____________________________ 18 U.S.C. § 922:

(g) It shall be unlawful for any person—

* * * * *

6) who has been discharged from the Armed Forces under dishonorable conditions;

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ______________________

Needless to say, I’m working on a case where [client] got a DD over 14 years ago, who has been a hunter all of his life – at least until now – when he went to buy a new shotgun for next Fall’s deer season, popped up on the background check as being “ineligible” to possess. While they didn’t sell him that firearm, ATF showed up at his house a few days later and asked if he had “any firearms” in the house, and he dutifully showed them his 2 shotguns, and 3 rifles [along with @ 200 rounds of ammo], which he surrendered in lieu of arrest. The US Attorney’s Office is not pressing this as they’re not interested in adding to Padilla and its progeny, and (at least for now) is looking to simply forfeit the confiscated weapons.

Of course there’s nothing in the RoT remotely discussing this mandatory prohibition, so add it to the stuff you advise clients. As an aside, I think it fair game to get the Court to judicially note the above statute as a mandatory consequence of a Dismissal or DD, and if the discharge isn’t mandatory especially to argue for no more than a BCD if that.

Be advised.

United States v. Haymond, decided today (26 June 2019) by the Supremes. The opinion is written by Gorsuch. (I’ve linked to SCOTUSBlog so you can the briefs and the opinion.

Some early comment from Prof. Doug Berman — here.

[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:

This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness…. The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad. The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Note: trial defense counsel did not object at trial! So, the NMCCA reviewed for plain error. Slip op. at 10. See United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017).

The NMCCA cited United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) for the proposition that the sentencing authority may consider pretrial confinement as mitigation or aggravation. Slip op. at 13. Ultimately the NMCCA found no error and gave no relief. But again, trial defense counsel had not objected.

Based on our superior court’s holding in Balboa, we cannot say that it was plain error for the trial counsel to argue that the members should increase their sentence to confinement for the express purpose of nullifying the Allen credit determined by the military judge in order, ostensibly, to permit the appellant to complete five years of treatment. Notwithstanding the C.A.A.F.’s language in Balboa, however, we would not condone a trial counsel’s effort to “appeal” a military judge’s Allen or Article 13 credit determination to members. Our holding might be different in a case where the issue was properly preserved for appeal.

In Balboa, Senior Judge Everett observed:

It seems curious (and more than coincidental) that the confinement adjudged was “68 days, plus 12 months”—not 14 months or 15 months—when the court-martial members knew that their announced sentence to confinement would be reduced by precisely 68 days. This Court does not need an appellate crystal ball to discern the real likelihood that, as a practical result of the members’ action, appellant has been denied the legally required credit for his pretrial confinement.

Balboa, 33 M.J. at 307-08 (Everett, S.J., concurring).

It would seem that the current law may now be that while an accused should get credit for PTC, it is not required if the sentencing authority doesn’t think it appropriate. We’ll have to see if the issue comes up again similar to the facts of Howell with a defense counsel objection. I would imagine Navy TCAP will make much ado about Howell and you may well see the issue again.

So, consider,

• Asking the MJ not to advise the members of any pretrial confinement credit?
• Move in-limine to prohibit TC arguing for nullification? Note, Howell is a retrial case. So it’s possible that there will be significant PTC in any retrial case. My other concern is that the advice to members about PTC gives them information or guidance on what the prior trial adjudged–something not raised in Howell.
• Object!

As this case demonstrates, the novelty of an assimilative charging decision under Article 134 often wears off during the course of an appeal,

Says ACCA in a footnote to United States v. Meredith, 7 August 2018.

Specification 1 of Charge II alleged appellant violated the Computer Fraud and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN SS’s and KS’s computer. We agree with the parties that the evidence for the Article 134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally and factually insufficient.

Most of the reasoning is found in footnote 5.

Interestingly,

In an unusual twist, the government asks us to send this case back to the convening authority for a sentence rehearing, arguing that the gravamen of the misconduct of which appellant was found guilty was the violation of the CFAA and pointing out HN EA and HN TH did not testify about the impact of the offenses during sentencing. We disagree.

On reassessment, the Court approved all of the sentence except the 45 days confinement (and total forfeitures) the Appellant had already served–another pyrrhic victory (although the Appellant might have a little back-pay coming).

In Saugen, the Appellant executed a pretrial agreement. One of the standard terms in that agreement was,

to waive all motions except those that are otherwise nonwaivable pursuant to [RULE FOR COURTS-MARTIAL] 705(c)(1)(B). I have not been compelled to waive my right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to raise the issue of unlawful command influence, or any other motion that cannot be waived. I have no motions to bring and I am not aware of any motion that was waived pursuant to this provision. [1]

[1] Apparently the Appellant was not told by his defense counsel that a possible multiplicity motion existed and the military judge did not ask about that. This standard provision is similar to that in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). Appellant made an unconditional guilty plea.

On appeal,

The appellant avers that one of the child pornography possession specifications is a lesser-included offense of the distribution specification and that the specifications are facially duplicative because they involve the same files downloaded on the same date on the same electronic media. Invoking the Fifth Amendment prohibition against double jeopardy, the appellant asserts that he cannot be convicted of both the facially duplicative lesser-included offense of possession and the greater offense of distribution. [2]

[2] It appears that the issue of combining the two specifications under Quiroz did not come up either.

NMCCA determined that the waiver provision precluded them from deciding the multiplicity question–findings and sentence affirmed.

Compare Saugen and Gladue to United States v. Hardy, 77 M.J. 438 (C.A.A.F. 2018). In Hardy, the standard motions waiver language was missing. Some language in Hardy appears to allow a CCA to address the multiplicity issue anyway using its Article 66(c), UCMJ, power to ensure an appropriate sentence, and is consistent with Chin.

Once again we have a case discussing waiver or forfeiture of an issue. Although as the court notes in Hardy,

The President amended the language of R.C.M. 905(e) in Executive Order No. 13,825. See Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 8, 2018) (effective Jan. 1, 2019). The amendment specifies that a failure to raise an objection under R.C.M. 905(b) “forfeits” the objection “absent an affirmative waiver.” This amendment is not yet in effect and will not apply to cases in which charges were referred to trial prior to the effective date.

To be determined is whether the standard language is a sufficient “affirmative waiver” or whether something more is needed to have a waiver. One might expect a change to the Benchbook to account for the upcoming change.

Note to DC. You are not precluded by the PTA language from arguing to the military judge that she may herself take into account when determining an appropriate sentence that the two specifications should be punished as one. There is a vast difference between a legal ruling on multiplicity–the maximum potential sentence and arguing that the specifications should be looked at as one. And such an argument is not in violation of the PTA, that is my position, you are merely putting the facts and circumstances into context and perspective.

Compare further United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016). The Appellant had the standard motions waiver provision in his pretrial agreement. Regardless, the Air Force CCA pierced the waiver provision and took action on the multiplicity question. This would be consistent with the language in Saugen. A possible factor is that the defense counsel at trial told the judge that they’d raise a multiplicity motion but for the PTA waiver language. As with Hardy and Saugen, there was a split of opinion among the CAAF judges. I think the point here is that piercing the waiver language is discretionary with the CCA and is consistent with its independent duty to evaluate sentence appropriateness.

In New York a defendant can be forced to register as a sex offender for the rest of his life based on accusations a jury rejected. So the state’s highest court ruled last week in a case that illustrates how fear and loathing of sex offenders lead to results that would be recognized as unjust and illogical in any other context.

See more at reason.com

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress’s delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline “The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal.”

So begins a post by Professor Berman of Sentencing Law & Policy blog.

Rule 1, don’t have a letter (or testimony) in which the writer impeaches the verdict. “This is out of character,” or something to that effect is much better and won’t draw criticism from the judge.

Here is a link to Simple Justice, a blog worth following, in which there is a discussion of support letters.

Bennett: The Art of Submitting Letters of Support