U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39193 (reh)
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UNITED STATES
Appellee
v.
William T. FIERRO
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 22 September 2020
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Military Judge: Jennifer J. Raab.
Approved sentence: Reduction to E-1, forfeiture of $1,120.00 pay per
month for 3 months, and confinement for 90 days. Sentence adjudged 2
October 2018 by GCM convened at Schriever Air Force Base, Colorado.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK and Judge KEY 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This is an unpublished opinion and, as such, does not serve as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 30.4.
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ANNEXSTAD, Judge:
At Appellant’s original trial, a general court-martial convicted Appellant,
consistent with his pleas, of one specification each of attempted distribution of
cocaine on divers occasions, reckless driving, use of cocaine, and possession of
cocaine on divers occasions, in violation of Articles 80, 111, and 112a, Uniform
United States v. Fierro, No. ACM 39193 (reh)
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 911, 912a. 1 A general court-
martial composed of officer members sentenced Appellant to a bad-conduct
discharge and confinement for three months. The convening authority
approved the sentence as adjudged.
Upon initial review, this court affirmed the findings of guilt to the charges
and specifications and set aside the sentence. United States v. Fierro, No. ACM
39193, 2018 CCA LEXIS 292, at *30 (A.F. Ct. Crim. App. 6 Jun. 2018) (unpub.
op.). The record was returned to The Judge Advocate General for remand to
the convening authority. Id. A sentence rehearing was authorized.
The sentence rehearing took place on 1–2 October 2018. Another general
court-martial composed of officer members sentenced Appellant to 90 days of
confinement, forfeiture of all pay and allowances, and reduction to the grade of
E-1. In light of Appellant’s previously adjudged and approved sentence, and in
accordance with the advice of his staff judge advocate, the convening authority
approved the 90 days of confinement and reduction to E-1. Additionally,
Appellant was credited for time served under the original sentence, and the
convening authority reduced the portion of the sentence extending to
forfeitures to $1,120.00 pay per month for three months.
Appellant raises one issue on appeal: whether Appellant’s sentence violates
Article 63, UCMJ, 10 U.S.C. § 863, and Rule for Courts-Martial (R.C.M.) 810(d)
because it is in excess of or more severe than his original approved court-
martial sentence. Specifically, Appellant argues he is entitled to relief because
the reduction to E-1 and forfeiture adjudged at the rehearing cannot be
measured against a punitive discharge or offset by no punitive discharge being
adjudged at the rehearing. We also consider whether Appellant is entitled to
relief for a violation of the 18-month standard for appellate review established
in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). We find no error
materially prejudicial to the substantial rights of Appellant occurred, and we
affirm the sentence.
I. BACKGROUND
On 2 October 2018, Appellant was advised of his right to submit clemency
matters to the convening authority before final action was taken on his case.
On 10 January 2019, the staff judge advocate recommended the convening
authority approve Appellant’s sentence as adjudged. This recommendation
was served on Appellant on 11 January 2019. On 18 January 2019, Appellant,
1 Reference to the punitive articles in the Uniform Code of Military Justice (UCMJ)
are to the Manual for Courts-Martial, United States (2012 ed.). All other references in
this opinion to the UCMJ and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2016 ed.).
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United States v. Fierro, No. ACM 39193 (reh)
through counsel, submitted matters in clemency to the convening authority. In
his clemency submission, Appellant requested the convening authority not
approve the forfeitures and reduction in grade that were adjudged during the
sentencing rehearing. Appellant’s rationale for this request centered on his
contention that the punishments listed above were in excess of or more severe
than his original sentence. Appellant also contended that the combination of
the reduction of rank and forfeiture exceeded the severity of the bad-conduct
discharge. On 30 January 2019, the convening authority received the
addendum to the staff judge advocate’s recommendation (SJAR). In the
addendum to the SJAR, the convening authority was advised that Appellant’s
arguments were “not supported by statute or case law.” Additionally, he was
advised to reduce the post-confinement forfeitures to $1,120.00 for 90 days in
accordance with R.C.M. 1107(d)(2). On 4 February 2019, the convening
authority took final action on Appellant’s case. He approved the confinement
and rank reduction as adjudged; he did not approve the forfeiture of allowances
and he reduced the forfeiture of pay to $1,120.00 per month for three months,
in accordance with the recommendation from his staff judge advocate.
II. DISCUSSION
A. Legal Sufficiency of Sentence
On appeal, Appellant contends that because he was not originally
sentenced to a rank reduction or forfeiture of pay, that approval of those
components of the sentence was not legally sufficient as they are in excess of
or more severe than the original sentence. Additionally, Appellant argues he
is entitled to relief because the reduction to E-1 and forfeiture adjudged at the
rehearing cannot be measured against a punitive discharge or offset by no
punitive discharge being adjudged at the rehearing. We disagree.
1. Law
An issue arising from the sentencing jurisdiction of a rehearing is a legal
question that is reviewed de novo. United States v. Davis, 63 M.J. 171, 173
(C.A.A.F. 2006) (citation omitted). Article 63, UCMJ, provides that upon
sentencing rehearing “no sentence in excess of or more severe than the original
sentence may be approved.” 10 U.S.C. § 863. Additionally, R.C.M. 810(d)(1)
provides that “offenses on which a rehearing . . . has been ordered shall not be
the basis for an approved sentence in excess of or more severe than the
sentence ultimately approved by the convening . . . authority following the
previous trial.” The Discussion to R.C.M. 1107(f)(5) states that “in approving a
sentence not in excess of or more severe than one previously imposed, a
convening authority is not limited to approving the same or lesser type of ‘other
punishments’ formerly approved.” The “question is not whether any individual
component of a sentence is more severe than that approved initially but
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United States v. Fierro, No. ACM 39193 (reh)
whether the overall sentence is in excess of, or more severe than, the sentence
approved after the original court-martial.” United States v. Rodriguez, No.
ACM 38519 (reh), 2019 CCA LEXIS 35, at *55 (A.F. Ct. Crim. App. 30 Jan.
2019) (unpub. op.) (citing United States v. Altier, 71 M.J. 42 (C.A.A.F. 2012)
(per curiam)).
2. Analysis
In support of his argument, Appellant requests that we rely on United
States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003), and United States v. Rosendahl,
53 M.J. 344 (C.A.A.F 2000). However, we find our superior court’s decision in
United States v. Altier, 71 M.J. 427 (C.A.A.F. 2012) (per curiam), to be more
analogous to Appellant’s case. In Altier, the United States Court of Appeals for
the Armed Forces (CAAF) evaluated the application of Article 63, UCMJ, and
R.C.M. 810 to a situation where the original sentence only included a bad-
conduct discharge, and where the sentence on rehearing consisted of
confinement for 30 days, 45 days’ restriction with hard labor, forfeitures of
$1,500.00 pay per month for three months, and a reduction in grade. Altier, 71
M.J. at 428. In Altier, the CAAF found no violation of Article 63, UCMJ, and
R.C.M. 810 where the sentence the appellant received on rehearing did not
include a punitive discharge and instead contained “terms similar in effect,
although not identical to, the types of punishment that could be imposed in a
non-judicial setting under Article 15, UCMJ[, 10 U.S.C. § 815],” and concluded
that the swapping of a punitive discharge for the other punishments did not
increase the appellant’s sentence. Id. at 428–29.
As in Altier, Appellant’s sentence at rehearing did not include a punitive
discharge, and the adjudged and reduced sentence as approved by the
convening authority reflect the types of punishments that could be imposed in
a non-judicial setting under Article 15, UCMJ. 2 Accordingly, we determine
Appellant’s overall sentence from the rehearing was not more severe than his
original sentence, and therefore, we find that the convening authority did not
err in approving the sentence of a reduction to the grade of E-1, forfeiture of
$1,120.00 pay per month for three months, and confinement for 90 days as it
is not in excess of or more severe than Appellant’s original sentence.
B. Timeliness of Appellate Review
Additionally, we consider whether Appellant is entitled to relief for a
facially unreasonable appellate delay. Moreno, 63 M.J. at 135 (citations
omitted); United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). We
decline to grant such relief.
2In Appellant’s case the amount of confinement adjudged in the original sentence and
upon rehearing was exactly the same.
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United States v. Fierro, No. ACM 39193 (reh)
1. Law
We review de novo whether an appellant has been denied the due process
right to speedy appellate review. Moreno, 63 M.J. at 135 (citations omitted). A
presumption of unreasonable delay arises when appellate review is not
completed and a decision rendered within 18 months of a case being docketed.
Id. at 142. A presumptively unreasonable delay triggers an analysis of the four
factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
(citations omitted). A presumptively unreasonable delay satisfies the first
factor, but the Government “can rebut the presumption by showing the delay
was not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we
consider the interests of “prevention of oppressive incarceration;”
“minimization of anxiety and concern of those convicted;” and “limitation of the
possibility that . . . grounds for appeal, and . . . defenses . . . might be impaired.”
Id. at 138–39 (citations omitted).
2. Analysis
Appellant’s case was docketed with the court on 6 February 2019. The delay
in rendering this decision after 6 August 2020 is presumptively unreasonable.
The reasons for the delay include the time required for Appellant to file his
brief on 18 June 2019, and the Government to file its answer 3 July 2019.
Appellant was not confined, did not assert his right to timely appellate review,
and has made no specific claim of prejudice. We find none.
Finding no Barker prejudice, we also find the delay is not so egregious that
it “adversely affects the public’s perception of the fairness and integrity of the
military justice system.” See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). As a result, there is no due process violation. See id.
Regarding any relief under Tardif, in this case we determine that no such
relief is warranted in the absence of a due process violation. See Tardif, 57 M.J.
at 223–24; United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015),
aff’d, 75 M.J. 264 (C.A.A.F. 2016). In Tardif, the CAAF recognized that “a
Court of Criminal Appeals has authority under Article 66(c) to grant relief for
excessive post-trial delay without a showing of ‘actual prejudice’ within the
meaning of Article 59(a).” 57 M.J. at 224 (citation omitted). Furthermore, we
as a service Court of Criminal Appeals are required by Article 66(c), UCMJ, to
determine which findings of guilty and the sentence or part thereof “should be
approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c); see Tardif, 57 M.J. at 224.
Considering all the facts and circumstances of Appellant’s case, we decline to
exercise our Article 66(c), UCMJ, authority to grant relief for the delay in
completing appellate review.
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III. CONCLUSION
The approved findings were previously affirmed. The approved sentence is
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 sentence is AFFIRMED. 3
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3 We note that the new action section in the court-martial order (CMO), dated 4
February 2019, should include the words “United States Air Force, 721st Security
Forces Squadron.” Appellant has not claimed prejudice and we find none. We direct a
corrected CMO to remedy this error.
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