United States v. Samuel

DECISION

CEDARBURG, Chief Judge:

Appellant pleaded guilty, pursuant to a pre-trial agreement, to unlawful entry of the seized vessel M/V Bonita with intent to commit larceny, larceny of marijuana of a value in excess of $100, possession, with intent to distribute, of 30 pounds of marijuana, and wrongful distribution of 4 ounces of marijuana to a Petty Officer 2nd Class in the U.S. Coast Guard in violation of Articles 130, 121 and 134, UCMJ, 10 U.S.C. §§ 930, 921, 934. He was found guilty in accordance with his pleas by a military judge sitting alone who sentenced him to a bad conduct discharge, confinement at hard labor for 22 months, total forfeitures for a period of 22 months and reduction to pay grade E-l. Since the pre-trial agreement limited the sentence which the convening authority could approve to a dishonorable discharge, confinement at hard labor for five years, forfeiture of all pay and allowances and reduction to pay grade E-l, the sentence ceiling of the pre-trial agreement was not triggered. Despite this fact, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 14 months, total forfeitures for a period of 14 months and reduction to pay grade E-l.

Appellant asserts a single assignment of error as follows:

SEAMAN APPRENTICE SAMUEL WAS DENIED INDIVIDUALIZED SENTENCE CONSIDERATION BECAUSE OF THE CONVENING AUTHORITY’S PREDETERMINED AND INFLEXIBLE IDEAS OF AN APPROPRIATE SENTENCE IN THIS CASE

We reject appellant’s contention of error and affirm.

*836The military judge, after rendition of sentence, expressed his belief that the sentence was appropriate for the offenses appellant had committed and for the Coast Guard. He was obviously impressed with the large quantity and quality of the character evidence which was adduced on behalf of appellant. He recommended to the convening authority that “... he take the time personally to read Defense Exhibits B through, I believe its JJ, the last defense exhibit, which will serve [to give] ... some sort of personal taste for the individual____” He further recommended that the convening authority review reports of appellant’s post-trial progress. Finally, he recommended that if appellant made post-trial progress, the convening authority consider suspending a portion of the confinement and forfeitures and the bad conduct discharge.

A petition for clemency was submitted by appellant to the convening authority which included letters from the trial counsel who had also prosecuted 2 companion general courts-martial, reciting that appellant had testified on behalf of the prosecution and his testimony was instrumental in obtaining convictions. It also included a personal appeal from appellant expressing remorse and asking that the severity of the sentence be moderated. A progress report from the Brig Counselor at the Norfolk Naval Station brig indicated appellant had adjusted well to confinement and had received work and training evaluation reports ranging from average to outstanding with improving conduct, attitude and performance.

The staff legal officer recommended approval of the sentence as adjudged but suspension of the bad conduct discharge, confinement in excess of 9 months and 22 days and forfeitures beyond the period of confinement. The convening authority disagreed with the action on the sentence recommended by his staff legal officer and, pursuant to paragraph 85c Manual for Courts-Martial 1969 (Rev.Ed.), stated his reasons for not following the recommendation.

Appellant quotes a portion of the convening authority’s letter explicating his reasons for disagreeing with the recommendation of his staff judge advocate as follows: [Samuel’s]

“acts are simply not acceptable for members of the United States Coast Guard, regardless of the substantial otherwise good character evidence adduced in this case____ Members who wrongfully enter seized vessels, steal therefrom, and possess substantial quantities of marijuana with intent to distribute (and do in fact distribute) it to other members of the Coast Guard, simply cannot be retained in the service.”

Citing United States v. Lacey, 23 U.S.C. M.A. 334, 49 C.M.R. 738 (1975), appellant argues that the above language evidences an inelastic attitude by the convening authority which deprived him of an individualized sentencing consideration.

We conclude that the statement of reasons for the action taken by the convening authority in its entirety does not support a conclusion that the convening authority was applying a preconceived, fixed attitude towards a category of offense applicable to all members of the Coast Guard without regard to the facts of an individual case. Significantly, and in accord with the recommendation of the military judge, also urged on him by appellant’s counsel, the convening authority stated that he “... personally read every page and exhibit of the record of trial in this case, and gave them careful consideration. As matters of my discretionary judgment, the action taken represents a careful and considered assessment of all relevant facts.” In context, the portion of the convening authority’s letter quoted by appellant which referred to “members” was a particularization of the unique circumstances of the offenses in appellant’s case.

In his explanation the convening authority disclosed that he had given consideration to the fact that the offenses of which appellant was found guilty were very serious. That conclusion is indisputable. As expressed by the convening authority, the *837acts by appellant of unlawful entry onto a vessel seized by the Coast Guard for drug violations and stealing a large quantity of marijuana with intent to distribute the marijuana and in fact distributing marijuana were clearly unacceptable conduct for members of the Coast Guard. A fair reading of the entire statement of the convening authority’s reasons does not evidence a preconceived and inelastic attitude towards appellant’s sentence. Rather, it discloses careful consideration of all relevant factors, including the nature and severity of the offenses, the substantial good character evidence appellant was able to amass, and the deterrent effect which the quantum of punishment approved would have upon appellant and other members of the Coast Guard. The convening authority’s “considered assessment” of these factors sustains his conclusion that appellant’s retention in the Coast Guard was not justified. We are persuaded that the convening authority, rather than evincing an inelastic sentencing attitude did precisely what he was bound to do. He read the entire record of trial, every page and exhibit; he considered the recommendations of the military judge and his staff legal officer; he took into account the appellant’s petition for clemency; and, he weighed the gravity of the offenses along with the evidence in extenuation and mitigation. He then reduced the sentence to confinement and forfeitures substantially. The sentence approved was appropriate for the offenses and the offender.

Accordingly, the findings and sentence as approved on review below are affirmed.

Judges HOLLAND and BRIDGMAN concur. Judge BURGESS did not participate in the decision in this case.