Fosler eddying around at NMCCA–280911 (amended)

I have updated the list to indicate whether or not the appellant got a benefit on sentence as a result of the Fosler issue.

• United States v. Gibson, No. 201000669 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted pursuant to pleas) – Affirmed, no sentence relief.
• United States v. Lonsford, No. 201100022 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted contrary to pleas) – Reversed, sentence rehearing.
• United States v. Leubecker, No. 201100091 (N.M.Ct.Crim.App., 13 Sep 2011) (convicted pursuant to pleas) – Affirmed, no sentence relief.
• United States v. Scaringello, No. 201100192 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted pursuant to pleas) – Affirmed, no sentence relief.
• United States v. Walton, No. 201000508 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted contrary to pleas) – Reversed as to the Article 134 charges. No sentence relief.

For convenience I have adopted the basic list from Zach Spillman’s at CAAFLog-NIMJ. None of the opinions are “published” as of yet. Add the following (it’s getting interesting).

• United States v. Thaxton, No. 201100261 (N.M.Ct.Crim.App., 27 Sep 2011) (convicted pursuant to pleas) – Affirmed, no sentence relief. Note a twist:

Although not raised as error, we note that the specification under Charge III, alleging a violation of the General Article did not allege the terminal element.

• United States v. Simmons, No. 201100044 (N.M.Ct.Crim.App., 27 Sep 2011) (convicted pursuant to pleas) – Reversed as to some of the specified issues, affirmed on the Fosler issue as to the remaining Article 134, UCMJ, charges. No sentence, just humor (a Marine out of uniform case), relief, but that’s because the court sent the case back for a resentencing.

In his initial pleading, the appellant averred that the General Article specification failed to state an offense because it did not allege that his disorder/neglect was prejudicial to good order and discipline or that his conduct was of a nature to bring discredit upon the armed forces. We then specified four additional issues[.]

• United States v. Raucher, No. 201000684 (N.M.Ct.Crim.App., 27 Sep 2011) (convicted contrary to pleas) – Affirmed. No sentence relief.

In his single assignment of error, the appellant avers that his conviction of aggravated assault cannot stand because that offense is not a lesser included offense (LIO) of the offense for which he originally stood trial, namely, an assault with intent to commit murder in violation of Article 134, and he was thus convicted of an offense with which he had not been charged. . . . [see] United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010)[.]

What’s interesting in this case is the charge did not allege an offense under Fosler, but he was convicted of an LIO, in violation of Article 128, UCMJ.EndFragment EndFragment