U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39162
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UNITED STATES
Appellee
v.
Brandon S. JUSTICE
Technical Sergeant (E-6), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 14 March 2018
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Military Judge: Shaun S. Speranza (motions); Donald R. Eller, Jr. (ar-
raignment); Mark Milam.
Approved sentence: Dishonorable discharge, confinement for 35 years,
and reduction to E-1. Sentence adjudged 9 June 2016 by GCM con-
vened at Royal Air Force Lakenheath, United Kingdom.
For Appellant: Major Patricia Encarnación Miranda, USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel Jo-
seph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Ma-
jor Amanda L.K. Linares, USAF; Major Meredith L. Steer, USAF; Cap-
tain Tyler B. Musselman, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, HARDING, and HUYGEN, Appellate Military
Judges.
Judge HUYGEN delivered the opinion of the court, in which Chief
Judge MAYBERRY and Senior Judge HARDING joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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United States v. Justice, No. ACM 39162
HUYGEN, Judge:
A general court-martial composed of a military judge convicted Appellant,
in accordance with his pleas, of four specifications of aggravated sexual con-
tact with two children under the age of 12 years; one specification of abusive
sexual contact on divers occasions of an adult; three specifications of sexual
assault on divers occasions of his spouse; one specification of sexual abuse of
a child under the age of 12 years; three specifications of viewing child pornog-
raphy; and one specification of possessing child pornography, in violation of
Articles 120, 120b, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 920, 920b, 934. The court-martial sentenced Appellant to a dishon-
orable discharge, confinement for 47 years, and reduction to the grade of E-1.
In accordance with a pretrial agreement (PTA), the convening authority ap-
proved confinement for only 35 years but otherwise approved the sentence as
adjudged. Although not required by the PTA, the convening authority de-
ferred until action the reduction to E-1 and waived mandatory forfeiture of
pay and allowances for the benefit of Appellant’s spouse and dependent chil-
dren for six months or the expiration of Appellant’s term of service, whichev-
er is sooner.
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant raises the following issues on appeal: (1) whether his sentence is inap-
propriately severe; (2) whether Appellant is entitled to relief due to illegal
pre- and post-trial punishment; (3) whether he is entitled to another oppor-
tunity to request clemency; and (4) whether he is entitled to relief due to
Air Force Office of Special Investigations (AFOSI) actions during the investi-
gation. * We find no error that materially prejudiced a substantial right of
Appellant and affirm the findings and sentence.
I. BACKGROUND
In October 2015, Appellant admitted to his spouse, KJ, that he communi-
cated online with other women. After speaking with a military chaplain, Ap-
pellant admitted to KJ that he was sexually attracted to children and had
viewed child pornography. He told KJ that he was making the admissions
because he wanted help. Subsequently, KJ informed Appellant’s squadron
commander, who then contacted AFOSI. KJ consented to a search of the resi-
* Regarding issues (2)-(4), we considered Appellant’s claims and his burden with re-
spect to each during our review of the case. We reject these claims; they do not re-
quire additional analysis or warrant relief. See United States v. Matias, 25 M.J. 356
(C.M.A. 1987).
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United States v. Justice, No. ACM 39162
dence where she, Appellant, and their three children lived. AFOSI also ob-
tained a search authorization from a military magistrate. AFOSI seized com-
puters and electronic media from the residence and Appellant’s cellphone. On
21, 22, and 23 October 2015, Appellant waived his rights under Article 31,
UCMJ, and was interviewed by AFOSI. During the interviews, Appellant
admitted to sexual assault of KJ, sexual contact with three girls, and viewing
child pornography.
II. DISCUSSION
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Sauk, 74 M.J.
594, 606 (A.F. Ct. Crim. App. 2015) (quoting United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion
to determine whether a sentence is appropriate, we have no power to grant
mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
In May 2016, Appellant and the convening authority entered into a PTA
wherein Appellant agreed, inter alia, to plead guilty to 13 of 25 specifications.
In exchange, the convening authority agreed, inter alia, to withdraw and
dismiss the remaining 12 specifications and not to approve confinement in
excess of 35 years.
During the sentencing proceeding, the military judge granted the Defense
motion for relief in sentencing for unreasonable multiplication of charges
(three specifications of sexual assault of Appellant’s spouse and four specifi-
cations involving child pornography) and thereby reduced the maximum term
of confinement by 90 years from 237 to 147 years. Specifically with regard to
confinement, the Government asked for 42 years; the Defense asked for 17
years. The adjudged sentence included 47 years of confinement. In a request
for clemency, Appellant asked the convening authority to reduce confinement
to no more than 25 years. Pursuant to the PTA, the convening authority ap-
proved 35 years of confinement.
Now on appeal, Appellant asserts that he is “worthy of a lesser sentence”
and requests the court to reduce his sentence to time served, or less than two
years. He argues that the adjudged sentence of 47 years was “unnecessarily
severe based on the needs of public safety and good order and discipline.” He
also contends that, because of his strong resolve not to re-offend, his sentence
should be lessened “to more efficiently provide for the needs of justice without
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United States v. Justice, No. ACM 39162
overly burdening the resources or the moral conscience of the American peo-
ple.” In effect, Appellant asks the court to grant clemency, which we cannot
do. We considered Appellant; the nature and seriousness of his admitted of-
fenses (aggravated sexual contact with and sexual abuse of three children
under the age of 12, abusive sexual contact, sexual assault of his spouse, and
viewing and possessing child pornography); his 14-year record of service; and
all matters contained in the record of trial. We conclude the approved sen-
tence, including 35 years of confinement, is not inappropriately severe.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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