UNITED STATES, Appellee
v.
Bryan WACHA, Jr., Lance Corporal
U.S. Marine Corps, Appellant
No. 01-0019
Crim. App. No. 99-1715
United States Court of Appeals for the Armed Forces
Argued April 17, 2001
Decided August 1, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, J., filed an
opinion concurring in the result.
Counsel
For Appellant: Lieutenant Colonel Dwight H. Sullivan, USMCR
(argued); Lieutenant Jonathan R. Goodman, JAGC, USNR
(on brief); Lieutenant Amanda St. Claire, JAGC, USNR.
For Appellee: Major Edward C. Durant, USMC (argued);
Colonel Marc W. Fisher, Jr., USMC, and Lieutenant Commander
Philip L. Sundel, JAGC, USNR (on brief).
Military Judge: R.W. Redcliff
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Wacha, No. 01-0019/MC
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant pleaded guilty before a military judge sitting
alone as a general court-martial to six specifications involving
conspiracy with other Marines and civilians to possess, use, and
distribute marihuana; eight specifications involving the use,
distribution, and possession of marihuana; and two
specifications of soliciting a fellow Marine, Private Rice, to
buy and possess marihuana, in violation of Articles 81, 112a,
and 134, Uniform Code of Military Justice, 10 USC §§ 881, 912a,
and 934. His sentence to a bad-conduct discharge, confinement
for 20 months, partial forfeiture of pay for 20 months, and
reduction to E-1 was approved by the convening authority, and
the findings and sentence were affirmed by the Court of Criminal
Appeals.
We granted review of the following issue:
WHETHER THE UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS ERRED BY FAILING
TO CONSIDER WHETHER APPELLANT’S SENTENCE
SATISFIED A SENTENCE UNIFORMITY STANDARD AS
INTENDED BY CONGRESS WHEN IT ADOPTED ARTICLE 66(c).
For the reasons set out below, we affirm.
The gravamen of appellant’s contention lies in the
following sentence from the lower court’s unpublished opinion:
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United States v. Wacha, No. 01-0019/MC
Sentence comparison is appropriate only in those
rare instances of highly disparate sentences in
closely related cases. United States v. Lacy, 50 MJ
286, 288 (1999); United States v. Olinger, 12 MJ 458,
460 (CMA 1982).
Unpub. op. at 2.
Appellant contends the lower court misread our holdings in
both Lacy and Olinger by declaring that it could not consider
and compare other court-martial sentences with that of this
appellant unless the cases were closely related and the
sentences were highly disparate. He argues that since the Court
of Criminal Appeals did not consider other court-martial
sentences, it failed, ipso facto, to perform the sentence
appropriateness analysis required by Article 66(c), UCMJ, 10 USC
§ 866(c).
Recognizing the highly discretionary role of the
experienced Court of Criminal Appeals judges when they perform
their Article 66(c) sentence appropriateness review, Lacy
required Courts of Criminal Appeals “to engage in sentence
comparison with specific cases ... in those rare instances in
which sentence appropriateness can be fairly determined only by
reference to disparate sentences adjudged in closely related
cases.” 50 MJ at 288, quoting United States v. Ballard, 20 MJ
282, 283 (CMA 1985) (emphasis added); see also United States v.
Sothen, 54 MJ 294 (2001); United States v. Durant, No. 00-0664,
___ MJ ___ (2001). Nothing in Lacy or its progeny suggests any
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United States v. Wacha, No. 01-0019/MC
limitation on a Court of Criminal Appeals’ discretion to
consider and compare other courts-martial sentences when that
court is reviewing a case for sentence appropriateness and
relative uniformity.
If the Court of Criminal Appeals did misinterpret our
decision in Lacy and felt constrained to specifically limit its
comparison of sentences to closely related cases with disparate
sentences among co-actors, that court erred. As Judge Cox so
succinctly stated in Ballard, supra at 286:
We are, of course, well aware that the experienced and
professional military lawyers who find themselves
appointed as trial judges and judges on the courts of
military review have a solid feel for the range of
punishments typically meted out in courts-martial.
Indeed, by the time they receive such assignments,
they can scarcely help it; and we have every
confidence that this accumulated knowledge is an
explicit or implicit factor in virtually every case in
which a military judge imposes a sentence or a court
of military review assesses for sentence
appropriateness. Thus, to hold that a trial or
appellate court may not consider the sentences in
other cases would be folly. We simply hold that these
courts cannot be required to consider such other
sentences. Thus, if a court concludes that further
edification in the area of sentence averages is
unnecessary, we will respect that judgment.
Appellant does not challenge the lower court’s ruling that
the cases of appellant and Private Rice are not closely related
or that the sentences are not highly disparate. Although it is
clear that appellant was the supplier of Private Rice’s
marijuana, that fact in and of itself does not make the cases
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United States v. Wacha, No. 01-0019/MC
closely related. The charges and specifications reflect that
only four of appellant’s 16 drug offenses involved Private Rice.
See unpub. op. at 3.
Instead, he contends that the court below failed to ensure
relative uniformity of sentences as intended by Congress. He
asserts that because the sentence appropriateness decision was
made based on an erroneous legal principle (misinterpretation of
Lacy), we must reverse. In support of this argument, appellant
avers that charges such as those appellant was facing are
normally sent to a special court-martial, the election made by
Private Rice’s special court-martial convening authority, but
not appellant’s. Accordingly, appellant argues that his
sentence to 20 months’ confinement, more than three times the
maximum sentence to confinement authorized by a special court-
martial in March 1999, is per se inappropriate.
Congress has vested responsibility for determining sentence
appropriateness in the Courts of Criminal Appeals. “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 evenhandedness of sentencing decisions.” Sothen,
54 MJ at 296.
The role of this Court is to determine, as a matter of law,
whether a Court of Criminal Appeals abused its discretion or
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United States v. Wacha, No. 01-0019/MC
caused a miscarriage of justice in carrying out its highly
discretionary “sentence appropriateness” role. See United
States v. Fee, 50 MJ 290, 291 (1999). Assuming arguendo that
the lower court applied Lacy in an unduly restrictive manner, we
must test that court’s finding, that appellant’s sentence was
relatively uniform and appropriate, for abuse of discretion.
See generally United States v. Judd, 11 USCMA 164, 170, 28 CMR
388, 394 (1960)(Ferguson, J., concurring in the result)
(congressional intent in enacting an Article 66 was to attain
relative uniformity of sentences rather than an arithmetically
averaged sentencing scheme).
A fair reading of the lower court’s opinion convinces us
that the judges went beyond a mere comparison to Private Rice’s
sentence when determining that appellant’s sentence was both
relatively uniform and appropriate. Finding that sentence
comparison was but one aspect of the sentence appropriateness
equation, the court found that appellant’s sentence was
appropriate for the crimes he had committed, “and the fact that
Pvt Rice received less punishment [did] not render the
appellant’s sentence a miscarriage of justice.” Unpub. op. at
4; see generally Durant, ___ MJ at (3); United States v.
Snelling, 14 MJ 267, 268 (CMA 1982). Accordingly, we find no
abuse of discretion or miscarriage of justice in the Article
66(c) analysis performed by the Court of Criminal Appeals.
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United States v. Wacha, No. 01-0019/MC
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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United States v. Wacha, 01-0019/MC
SULLIVAN, Judge (concurring in the result):
Sentence appropriateness determinations are matters for the
Courts of Criminal Appeals. See United States v. Durant, No. 00-
0664, ___ MJ ___ (2001) (Sullivan, J., concurring). Moreover, if
those appellate courts make errors of law in their sentence
appropriateness determinations, we are still not allowed to
decide this important question in their stead. See United States
v. Brock, 46 MJ 11, 13 (1997). We can, however, decide whether
an error of law by a Court of Criminal Appeals materially
prejudiced its sentence appropriateness determination. See
Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
The appellate court below stated that “[s]entence comparison
is appropriate only in those rare instances of highly disparate
sentences in closely related cases. United States v. Lacy, 50 MJ
286, 288 (1999); United States v. Olinger, 12 MJ 458, 460 (CMA
1982).” (Emphasis added.) This was an erroneous statement of
the law (see United States v. Sothen, 54 MJ 294, 296 (2001)) and
constituted an abuse of the lower court’s discretion. See United
States v. Travers, 25 MJ 61, 63 (CMA 1987).
Nevertheless, I conclude that such error was harmless, i.e.,
it did not materially prejudice the lower appellate court’s
sentence appropriateness determination. See Article 59(a), UCMJ.
United States v. Wacha, 01-0019/MC
In concluding that appellant’s and Private Rice’s sentences were
not highly disparate, the appellate court below did compare the
court-martial sentences in these two cases. It said: “Assuming
arguendo that the cases of the appellant and PVT Rice are closely
related, . . . [w]e do not find that the appellant’s sentence
exceeded relative uniformity.” Unpub. op. at 3. It also said:
“. . . and the fact that PVT Rice received less punishment does
not render the appellant’s sentence a miscarriage of justice.”
Id. at 4. Accordingly, in my view, the erroneous statement of
law by the appellate court below generally questioning the
propriety of such a sentence comparison did not materially
prejudice the lower appellate court’s sentence appropriateness
determination in this case. See United States v. Durant, supra.
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