United States v. Mooney

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Sean C. MOONEY, Senior Airman
United States Air Force, Appellant
No. 17-0405
Crim. App. No. 38929
Argued January 10, 2018—Decided March 12, 2018
Military Judge: Francisco Mendez
For Appellant: Major Allen S. Abrams (argued); Brian L.
Mizer, Esq. (on brief)
For Appellee: Major Clayton H. O’Connor (argued); Colonel
Katherine E. Oler, Lieutenant Colonel Joseph J. Kubler,
and Major Tyler B. Musselman (on brief); Mary Ellen
Payne, Esq.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges RYAN and
OHLSON, and Senior Judge COX, joined.
_______________

Judge SPARKS delivered the opinion of the Court.

A military judge sitting as a general court-martial
convicted Appellant, consistent with his pleas, of sexual
assault of a child and sexual abuse of a child, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920b (2012). The military judge sentenced
Appellant to a dishonorable discharge, confinement for
forty-five months, forfeiture of all pay and allowances, and a
reduction to E-1. Pursuant to a pretrial agreement, the
convening authority approved the sentence but reduced the
confinement period to two years. Following the post-trial
advice of his staff judge advocate (SJA), the convening
authority also directed the confinement to run consecutively
to Appellant’s previously adjudged federal sentence. The
United States Air Force Court of Criminal Appeals affirmed
the findings and the sentence. Appellant then petitioned this
Court, and we granted review on the following issue:
 United States v. Mooney, No. 17-0405/AF
Opinion of the Court

WHETHER THE CONVENING AUTHORITY’S
ACTION IS VOID AB INITIO WHERE IT
PURPORTS TO ORDER APPELLANT’S
ADJUDGED COURT-MARTIAL SENTENCE TO
RUN CONSECUTIVE TO HIS PREVIOUSLY
ADJUDGED FEDERAL SENTENCE INSTEAD
OF CONCURRENTLY AS REQUIRED BY
ARTICLE 57, UCMJ.
For the reasons set forth below, we hold the convening
authority’s action directing Appellant’s military sentence to
run consecutively with his previously imposed federal
sentence was not authorized by the UCMJ’s comprehensive
statutory scheme for deferring and interrupting sentences.
Accordingly, the action by the convening authority was void
ab initio.
I. Background
We adopt the facts as set forth in the lower court’s
opinion:
The charged offenses in this case stemmed from
Appellant’s sexual relationship with a 14-year-old
child, SB. Appellant met SB through their mutual
association with a local volunteer fire department.
Appellant, who was 21 years of age at the time,
engaged in sexual intercourse with SB on at least
five occasions. SB also sent sexually explicit
photographs of herself to Appellant by text
message. Appellant’s misconduct was eventually
discovered by SB’s mother, who informed Air Force
law enforcement authorities.
While he was awaiting trial by court-martial for
his sexual activity with SB, Appellant was arrested
by the United States Marshals Service and
detained in a federal detention center. Appellant
was later charged by the United States Attorney’s
Office (USAO) with receipt of child pornography
based on photographs SB sent to Appellant’s cell
phone. Appellant pleaded guilty to this charge in
federal district court and was sentenced to 72
months of confinement approximately a week
before his general court-martial convened.
Appellant’s plea agreement with the USAO
required him to also plead guilty to offenses still
pending trial by court-martial.
….
As consideration for Appellant’s offer to plead
guilty, the general court-martial convening

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authority agreed to approve no more than two
years of confinement if confinement was adjudged
at trial. The PTA contained no other restrictions on
the convening authority’s ability to act on
Appellant’s sentence. The document did not in any
way address the terms of Appellant’s conviction or
sentence in federal district court.
There were also no discussions by the parties at
trial regarding the impact, if any, of Appellant’s
federal sentence on his court-martial conviction.
However, Appellant’s trial defense counsel
acknowledged during his sentencing argument the
possibility of consecutive sentences when
discussing the amount of time Appellant could
potentially spend in confinement for both his
federal and military convictions.
The [SJA] for the general court-martial
convening authority first raised the question of
consecutive confinement sentences in his
addendum to the SJA’s recommendation. Although
recognizing there was conflicting guidance between
Department of Defense (DoD) regulations and the
UCMJ, the SJA opined Article 14, UCMJ, 10 U.S.C.
§ 814, and DoD regulatory guidance permitted the
imposition of consecutive sentences. Trial defense
counsel, in response to the addendum, disagreed
with the SJA’s legal assessment.
At action, the convening authority directed
Appellant’s sentence to confinement would be
served after the completion of his term of federal
incarceration:
Upon completion of his federal sentence as
adjudged in the United States District Court for
the District of Delaware, AIRMAN BASIC
MOONEY will be remanded from the Federal
Bureau of Prisons’ [sic] System to the Air Force
Security Forces Center Confinement and
Corrections Directorate for the completion of
his approved military confinement sentence,
which will be served consecutively.
United States v. Mooney, 76 M.J. 545, 546–47 (A.F. Ct. Crim.
App. 2017).
II. Air Force Court of Criminal Appeals Decision
On appeal, Appellant argued that the convening
authority could not order his military sentence to be served
consecutively to his federal sentence. The lower court found:

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Given the support for this disposition in DoD and
Air Force regulatory guidance and the absence of
conflicting authorities within the UCMJ, we find
the convening authority’s action was sufficient to
toll the effective date of confinement under Article
57(b), UCMJ, and thereby require Appellant’s
military sentence to confinement be served
consecutively with his federal sentence.
Mooney, 76 M.J. at 549–50.
III. Waiver
Before reaching the granted issue, we must consider
whether Appellant has waived review of this issue. The
Government contends that Appellant’s unconditional guilty
plea and his pretrial agreement, stating he would “waive all
motions which may be waived under the Rules for
Courts-Martial” precludes him from challenging the
convening authority’s action on appeal.
This Court does “not review waived issues because a
valid waiver leaves no error to correct on appeal.” United
States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). We have
long recognized the general proposition that “[a]n
unconditional plea of guilty waives all nonjurisdictional
defects at earlier stages of the proceedings.” United States v.
Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010). Rule for
Courts-Martial (R.C.M.) 910(j) provides a “bright-line rule”
that an unconditional guilty plea “which results in a finding
of guilty waives any objection, whether or not previously
raised, insofar as the objection relates to the factual issue of
guilt of the offense(s) to which the plea was made.” United
States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009).
This issue arose during the SJA’s post-trial
recommendation and the convening authority’s action. We
therefore do not find Bradley applicable because whether a
convening authority has the power to order a consecutive
sentence is not a pretrial defect. Furthermore, this issue is
not a factual issue relating to Appellant’s guilt. Additionally,
because this issue did not arise until post-trial, there was no
motion to be made during the court-martial. In fact,
Appellant affirmatively objected at the earliest opportunity;
when the SJA first proposed it to the convening authority in
the addendum to the SJA’s post-trial recommendation.
Mooney, 76 M.J. at 547. For these reasons, waiver does not
apply and we may reach the merits of the granted issue.

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IV. Discussion
We review questions of statutory construction de novo.
United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016).
Article 57(b), UCMJ, 10 U.S.C. § 857(b), states, “[a]ny period
of confinement included in a sentence of a court-martial
begins to run from the date the sentence is adjudged by the
court-martial, but periods during which the sentence to
confinement is suspended or deferred shall be excluded in
computing the service of the term of confinement.”
“It is a fundamental tenet of statutory construction to
construe a statute in accordance with its plain meaning.”
Loving v. United States, 62 M.J. 235, 240 (C.A.A.F. 2005).
On its face, Article 57(b), UCMJ, expressly requires that the
sentence of a court-martial to confinement runs from the
date of adjudication. Thus, once confinement is adjudged,
only if it is then “suspended or deferred” does the
confinement not run concurrently. Additionally, though not
expressly set out as an exception under Article 57(b), UCMJ,
a previously adjudged military sentence to confinement may
be interrupted pending proceedings in a “civil tribunal”
under Article 14(b), UCMJ, 10 U.S.C. § 814(b).
In this case, the convening authority’s action fails to
specify whether he was deferring or interrupting Appellant’s
court-martial sentence. While we do not condone this lack of
specificity in the convening authority’s action, we largely
agree with the lower court that “although the convening
authority did not use the term ‘deferment’ in disposing of
Appellant’s case, it is clear from the language of the action
that Appellant’s military sentence to confinement was
ordered to be deferred, postponed, or otherwise interrupted
until completion of his federal sentence to confinement.” 1

1 Article 57(e), UCMJ, 10 U.S.C. § 857(e), provided:
(e)(1) In any case in which a court-martial
sentences a person referred to in paragraph (2) to
confinement, the convening authority may postpone
the service of the sentence to confinement, without
the consent of that person, until after the person
has been permanently released to the armed forces
by a State or foreign country referred to in that
paragraph.
Article 57(e) was redesignated as Article 57a(b) by § 1123(a) of
the National Defense Authorization Act for Fiscal Year 1996, Pub.
L. No. 104-106, 110 Stat. 186, 463–64 (codified as amended at 10

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Mooney, 76 M.J. at 549. We must now determine whether
the convening authority was permitted to interrupt or defer
Appellant’s military sentence to confinement.
A. Interruption
Article 14(b), UCMJ, states:
When delivery under this article is made to any
civil authority of a person undergoing sentence of a
court-martial, the delivery, if followed by conviction
in a civil tribunal, interrupts the execution of the
sentence of the court-martial, and the offender
after having answered to the civil authorities for
his offense shall, upon the request of competent
military authority, be returned to military custody
for the completion of his sentence.
This statute requires that an accused was tried,
sentenced, and serving the adjudged military confinement
prior to his release to the civilian authorities to face trial by
them. In this case, the reverse is true, as Appellant was
serving a federal sentence and was released by the United
States Marshal for the District of Delaware to face trial by
court-martial. Therefore, the convening authority was not
permitted to interrupt the execution of Appellant’s court-
martial sentence. See United v. Bramer, 45 M.J. 296, 299
(C.A.A.F. 1996) (holding Article 14(b), UCMJ, inapplicable
where the civil confinement is imposed prior to a court-
martial sentence).
B. Deferment
Article 57a, UCMJ, permits a convening authority to
defer a court-martial sentence in two situations. 2 First,
Article 57a(a), UCMJ, states:

U.S.C. § 857a(b) (2012)). That section substituted the word “defer”
for the word “postpone.” Id. § 1123(a)(3). There is no meaningful
distinction between “defer” and “postpone.” See R.C.M. 1101(c)(1)
(“Deferment of a sentence to confinement, forfeitures, or reduction
in grade is a postponement of the running of the sentence.”).
2 Article 57a(c), UCMJ, permits the Secretary to defer a
sentence when the Judge Advocate General certifies a case to this
Court. This provision is inapplicable to Appellant’s case as the
convening authority, not the Secretary, tolled Appellant’s
court-martial sentence and the Judge Advocate General did not
certify this case to this Court.

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On application by an accused who is under
sentence to confinement that has not been ordered
executed, the convening authority or, if the accused
is no longer under his jurisdiction, the officer
exercising general court-martial jurisdiction over
the command to which the accused is currently
assigned, may in his sole discretion defer service of
the sentence to confinement.
Article 57a(a), UCMJ, provides no basis for the
convening authority’s action because Appellant did not
request deferment of his sentence to confinement.
Second, Article 57a(b), UCMJ, states:
(1) In any case in which a court-martial sentences a
person referred to in paragraph (2) to confinement,
the convening authority may defer the service of
the sentence to confinement, without the consent of
that person, until after the person has been
permanently released to the armed forces by a
State or foreign country referred to in that
paragraph.
(2) Paragraph (1) applies to a person subject to this
chapter who—
(A) While in the custody of a State or
foreign country is temporarily returned by
that State or foreign country to the armed
forces for trial by court-martial; and
(B) After the court-martial, is returned to that
State or foreign country under the authority of a
mutual agreement or treaty, as the case may be.
(3) In this subsection, the term “State” includes the
District of Columbia and any commonwealth,
territory, or possession of the United States.
Article 57a(b), UCMJ, is inapplicable because Appellant
was in federal custody not in the custody of a state or foreign
country when he was returned to the Air Force for trial by
court-martial. Nonetheless, the lower court found that
because the various provisions of Article 57 and 57a, UCMJ,
were inapplicable to Appellant’s case, the convening
authority correctly relied upon regulatory guidance to order
Appellant’s sentence to run consecutively with his federal
sentence. 3 Mooney, 76 M.J. at 547.

3 With regard to the imposition of consecutive or concurrent
sentences within the military, the Department of Defense has

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We disagree. In Bramer, 45 M.J. at 299, we explained
that prior to the enactment of Article 57a(b), “the clearest
rule of law was that a Secretary of a Department could
promulgate a regulation which determined when sentences
would run concurrently or consecutively and that, at a
minimum, misconduct which occurred after the first
sentence to confinement began could result in a consecutive
sentence.” However, we further explained:
The amendment to Article 57 makes it clear that
it is a convening authority’s decision whether to
defer the running of the sentence. Thus, in the
absence of a convening authority’s decision to defer,
the military member’s sentence would continue to
run from the date of adjudication; it would not be
automatically consecutive.
Therefore, first, Article 57(b) compels us to
conclude that a member’s sentence to confinement
runs from the date it is adjudged. Second, it may be
deferred by the convening authority under Article
57a(b). Third, if it is not deferred, then the sentence
to confinement would run concurrently with any
state sentence an accused was serving.
Id. Instead of granting convening authorities broad
discretion to defer confinement, Congress has constrained

directed that “[a] sentence to confinement adjudged by a court-
martial shall not be served concurrently with any other sentence
to confinement adjudged by a court-martial or a civil court.” Dep’t
of Defense, 1325.7-M, DoD Sentence Computation Manual ch. 2,
para. C2.7.1 (July 24, 2004, reprint incorporating through Change
2, Mar. 9, 2007). The Secretaries of the Army and Air Force have
promulgated similar joint guidance for service confinement
sentences. Dep’ts of the Army and Air Force, Army Reg. 633-
30/Air Force Reg. 125-30, Apprehensions and Confinements,
Military Sentences to Confinement para. 4.b (Dec. 2, 2015).
“Secretaries of [Military] Departments may promulgate rules and
regulations, and they are presumptively valid unless arbitrary
and unreasonable or contrary to or inconsistent with the Code.”
Bramer, 45 M.J. at 298 (internal quotation marks omitted)
(citation omitted). While not necessary for resolution of the
granted issue, we note that Article 57a(b), UCMJ, gives the
convening authority the discretion to defer an accused’s sentence
to confinement, while the regulation operates automatically,
seemingly depriving the convening authority of such discretion.
This inconsistency leads us to question the continued validity of
the regulation.

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this power to when certain conditions are met. Under the
UCMJ, those prerequisites are: (1) the member is “in the
custody of a State or foreign county,” (2) the member is
“temporarily returned by that State or foreign country to the
armed forces for trial by court-martial,” and (3) “after the
court-martial, [the member] is returned to that State or
foreign country under the authority of a mutual agreement
or treaty.” Article 57a(b)(2), UCMJ. Under the cannon of
statutory construction expressio unius est exclusio alterius
(the inclusion of one is the exclusion of others), it follows
that when Congress expressly provided for deferment when
a member is in custody of a state or foreign country, they
intended to exclude when a member is in custody of the
federal government. See, e.g., United States v. Wilson, 76
M.J. 4, 7 (C.A.A.F. 2017); United States v. Cline, 29 M.J. 83,
86 (C.M.A. 1989); United States v. Kick, 7 M.J. 82, 88–89
(C.M.A. 1979) (Perry, J., dissenting). Therefore, Article
57a(b)(1), UCMJ, does not authorize the convening authority
to defer Appellant’s sentence to confinement and the
convening authority was not permitted to rely on a
regulation to come to a different conclusion.
In light of the comprehensive statutory scheme for
deferring and interrupting sentences under Articles 14, 57
and 57a, UCMJ, the convening authority was not authorized
to order a consecutive sentence where a federal conviction is
followed by a court-martial conviction. 4 Accordingly,
pursuant to Article 57(b), UCMJ, Appellant’s sentence to
confinement began running on the date it was adjudged.
V. Conclusion
The convening authority’s action is void ab initio by
ordering Appellant’s adjudged court-martial sentence to run
consecutively to his previously adjudged federal sentence.
The decision of the United States Air Force Court of
Criminal Appeals is reversed, and the convening authority’s

4 It is not altogether clear why deferment under Article 57a(b),
UCMJ, is unavailable when an accused is in the custody of the
federal government, or why interruption does not flow in the
opposite direction for purposes of Article 14, UCMJ. But
regardless of how opaque the rationale for a statute might be, the
plain language meaning must be enforced and is rebutted only in
“rare and exceptional circumstances.” Ardestani v. I.N.S., 502 U.S.
129, 135 (1991) (internal quotation marks omitted) (quoting Rubin
v. United States, 449 U.S. 424, 430 (1981)).

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action is set aside. The record of trial is returned to the
Judge Advocate General of the Air Force for a new action by
the same or a different convening authority.

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