UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ULYSSES LOPEZ
PRIVATE (E-1), U.S. MARINE CORPS
NMCCA 201400192
GENERAL COURT-MARTIAL
Sentence Adjudged: 22 January 2014.
Military Judge: Col M.B. Richardson, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, MCAS Miramar, San Diego, CA.
Staff Judge Advocate's Recommendation: LtCol K.C. Harris,
USMC.
For Appellant: Maj Jeffrey Stephens, USMCR.
For Appellee: Maj Tracey Holtshirley, USMC; LT Ann Dingle,
JAGC, USN.
12 February 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of two
specifications of attempting to introduce two types of
prohibited designer drug analogs onto a military installation,
and three specifications of violating a lawful general order by
possessing two types of designer drug analogues and drug
paraphernalia, in violation of Articles 80 and 92, Uniform Code
of Military Justice, 10 U.S.C. §§ 880 and 892. The military
judge sentenced the appellant to confinement for 30 months,
forfeiture of all pay and allowances, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, pursuant to a pretrial agreement (PTA),
suspended all confinement in excess of twelve months.
The appellant raises two assignments of error: (1) that the
military judge committed plain error when he “failed to dismiss
Specifications 1 and 2 of Charge I as multiplicious with
Specifications 1 and 2 of Charge II or [as] an unreasonable
multiplication of charges;” 1 and (2)that the appellant’s sentence
was inappropriately severe.
After carefully considering the record of trial and the
parties’ pleadings, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Background
On 21 February 2013, the appellant, then a private first
class, was convicted at a special court-martial for, inter alia,
wrongfully using, possessing, and introducing analog drugs. The
appellant was awarded eleven months’ confinement, reduction to
pay grade E-1, and a bad-conduct discharge. Pursuant to a PTA
all confinement in excess of six months was disapproved. The
appellant was credited with 146 days for pretrial confinement in
that case.
Approximately three months after his first court-martial
conviction, a civilian friend (“Holly”) asked the appellant to
go on-line and purchase a quantity of 1-(5-benzofuranyl)-2-
propanime (Drug Analog 1), a drug analog to
Methylenedioxyamphatamine (“MDA”), which he would sell to her so
that she could later sell Drug Analog 1 to attendees at an
upcoming electric music festival.
The appellant placed the drug order which was shipped to an
off-base residence of another friend. When the appellant
retrieved the package from his friend and opened it, he saw that
in addition to Drug Analog 1, the shipment also contained a
1
Appellant’s Brief of 6 Aug 2014 at 4.
2
small quantity of 5-(2-aminopropyl)2, 3-dihydrobenzofuran, an
MDA drug analog (Drug Analog 2), which the appellant decided to
keep for his own personal use. Both of these drug analogs are
illegal for Marines and Sailors to possess, use, distribute, or
introduce on board a military installation. 2
Approximately a week later, the appellant was in a vehicle
driven by his friend Holly when he attempted to bring the entire
shipment of Drug Analog 1 and Drug Analog 2 aboard Marine Corps
Air Station, Miramar, California (Air Station). The vehicle was
stopped and searched at the gate, where both drug analogs were
discovered in the vehicle - Drug Analog 1 was found in the trunk
of Holly’s car and Drug Analog 2 was found in the appellant’s
pocket. The appellant also attempted to bring drug
paraphernalia 3 aboard the Air Station and during the providence
inquiry acknowledged that the items seized were intended to be
used so that Holly could “repackage [her] drugs and sell them as
drugs.” Record at 53. Although the appellant claimed that he
had not planned on taking the drug analogs with him to the Air
Station that day, he was running late and decided to try to get
on base knowing the drug analogs and drug paraphernalia were in
his possession.
Multiplicity/Unreasonable Multiplication of Charges
At trial the appellant pleaded guilty to the charges he now
attacks. The appellant did not raise the issue of multiplicity
or unreasonable multiplication of charges at trial.
Absent plain error, an unconditional guilty plea waives a
multiplicity claim. United States v. Heryford, 52 M.J. 265, 266
(C.A.A.F. 2000). Claims of multiplicity are also waived by a
failure to make a timely motion to dismiss, unless the claim is
found to be plain error. Id. To find plain error we are
required to determine that the pertinent offenses are facially
duplicative . United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F.
1997). This is a question of law that this court reviews de
novo. United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004).
The appellant argues that the offenses are facially
duplicative because he was convicted of simultaneously
attempting to introduce the same quantity of each drug analog
that he was charged with possessing. We disagree.
2
SECNAVINST 5300.23E (23 May 2011).
3
The drug paraphernalia included a digital scale, measuring spoons, tweezers
and empty pill capsules.
3
Whether offenses are facially duplicative requires that we
examine the language of the specifications and “facts apparent
on the face of the record.” Lloyd, 46 M.J. at 24; see also
United States v. Harwood, 46 M.J. 26, 28 (C.A.A.F. 1997). In
United States v. Hendrickson, 16 M.J. 62, 63 (C.M.A. 1983), the
Court of Military Appeals held that the possession and
introduction of the same quantity of LSD 4 in violation of Article
92, UCMJ, was multiplicious for findings where the evidence
adduced at trial established that the appellant possessed and
wrongfully introduced the same amount of LSD on the same day
onto the same ship. Likewise, in United States v. Gatlin, 60
M.J. 804, 807 (N.M.Ct.Crim.App. 2004), this court determined
that the facts of the case supported a finding that the
appellant’s convictions for possession and introduction of LSD
were multiplicious for findings. However, offenses are not
necessarily facially duplicative where the language in the
specification and the facts apparent on the face of the record
are “sufficiently broad to permit a finding of possession
independent from wrongful introduction . . . .” Heryford, 52
M.J. at 267.
Here, we find that although the pertinent offenses are all
alleged to have occurred “on or about 30 May 2013,” the
stipulation of fact and the appellant’s guilty plea colloquy
clearly establish that the appellant came to possess the two
prohibited analog drugs approximately a week prior to his
attempt to introduce them on board the Air Station. Further,
the record makes clear that in this case the appellant’s prior
off-base possession of the two analog drugs, followed by his
subsequent attempt to bring those same drugs on board the Air
Station are aimed at independent and distinct conduct and thus
not facially duplicative.
Since we find that the appellant’s convictions for
possession and attempted introduction are not facially
duplicative based on the facts of this case, we find no plain
error and conclude that the multiplicity issue was waived.
Additionally, we have considered the appellant’s
unreasonable multiplication of charges claim and find no error. 5
4
Lysergic Acid Diethylamide.
5
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001); United States v.
Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
4
Sentence Appropriateness
It is well-settled that “a court-martial is free to impose
any sentence it considers fair and just.” United
States v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964). We review
the appropriateness of the sentence de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We engage in a review that
gives “‘individualized consideration’ of the particular accused
‘on the basis of the nature and seriousness of the offense and
the character of the offender.’” United States v. Snelling, 14
M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180-81 (C.M.A. 1959)).
We note that the appellant was convicted of unlawfully
possessing two kinds of illegal drug analogs and a variety of
drug paraphernalia, as well as attempting to bring these
unlawful substances on board a Marine Corps installation. The
appellant also admitted that he planned to sell Drug Analog 1 to
his friend and keep Drug Analog 2 for his own use. The appellant
expressed his regret and remorse at sentencing.
Based upon these circumstances, coupled with the
appellant’s previous special court-martial conviction involving
illegal drugs, we conclude that the approved sentence is
appropriate for the appellant and his offenses. To grant relief
at this point would be engaging in clemency, a prerogative
reserved for the convening authority, and we decline to do so.
United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). We
are convinced that justice was done and that the appellant
received the punishment he deserved.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5