U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39300
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UNITED STATES
Appellee
v.
Gabriel C. VILLANUEVA
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 23 May 2018
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Military Judge: J. Wesley Moore.
Approved sentence: Dishonorable discharge, confinement for 6 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 14 February 2017 by GCM convened at Ramstein Air Base,
Germany.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mat-
thew L. Tusing, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
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This is an unpublished opinion and, as such, does not serve as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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PER CURIAM:
Appellant providently pleaded guilty to attempted rape, aggravated sexu-
al contact, and assault consummated by a battery, in violation of Articles 80,
United States v. Villanueva, No. ACM 39300
120, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880,
920, 928. 1 The military judge sitting as a general court-martial sentenced
Appellant to a dishonorable discharge, confinement for 10 years, forfeiture of
all pay and allowances, and reduction to E-1. Pursuant to a pretrial agree-
ment, the convening authority only approved six years of confinement but
otherwise approved the adjudged sentence.
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant claims that his sentence is inappropriately severe given his acceptance of
responsibility as demonstrated by his guilty pleas, his difficult upbringing
and personal issues, and his responsibilities for his dependents. We disagree.
Appellant violently attacked another Airman, choking her until she lost con-
sciousness, and then he tried to rape her. We have given individualized con-
sideration to the nature and seriousness of Appellant’s crimes, all matters
contained in the record of trial, and, importantly, Appellant. See United
States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (en banc). Appel-
lant’s sentence is not inappropriately severe.
We also note that approximately 149 days elapsed between Appellant’s
sentencing and the convening authority’s action. Although this delay is pre-
sumptively unreasonable, Appellant asserts no prejudice and we discern none
from the record. See United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006) (establishing presumption of unreasonable delay where the convening
authority does not take action within 120 days of the completion of trial). Ac-
cordingly, we find no violation of Appellant’s due process right to timely post-
trial processing and appeal. See id. at 136. The delay was not so egregious as
to undermine the appearance of fairness in Appellant’s case and the integrity
of our military justice system. See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). Recognizing our authority under Article 66(c), UCMJ, 10
U.S.C. § 866(c), we considered whether relief for post-trial delay is appropri-
ate in this case even in the absence of a due process violation. See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002) (“Appellate relief under Ar-
ticle 66(c) should be viewed as the last recourse to vindicate, where appropri-
ate, an appellant’s right to timely post-trial processing and appellate re-
view.”). After considering the factors enumerated in United States v. Gay, 74
1Although Appellant pleaded guilty to aggravated assault in violation of Article 128,
UCMJ, the military judge found Appellant guilty by exceptions and substitutions of
the lesser included offense of assault consummated by a battery, also in violation of
Article 128.
2
United States v. Villanueva, No. ACM 39300
M.J. 736, 744 (A.F. Ct. Crim. App. 2015), 2 aff’d, 75 M.J. 264 (C.A.A.F. 2016),
we find it is not.
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Arti-
cles 59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a),
866(c). Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
2 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm to the appellant or institu-
tionally caused by the delay; (4) whether the delay has lessened the disciplinary ef-
fect of any particular aspect of the sentence, and whether relief is consistent with the
dual goals of justice and good order and discipline; (5) whether there is any evidence
of institutional neglect concerning timely post-trial processing; and (6) given the pas-
sage of time, whether this court can provide meaningful relief in this particular situ-
ation.
3