(dissenting):
The unlawful taking of a human life is undoubtedly the most heinous criminal act in our American society. I find the facts and circumstances surrounding the death of Sergeant Gilberto Calderon to be repugnant and aggravated, even though this was a crime committed among thieves, so to speak.
I need not reach the question as to whether trial counsel’s argument was legally impermissible, for the sentencing issue can be resolved, in my judgment, by simply presuming that error was committed. Under the facts of this case, the appellant’s sentence “cap” of 27 years confinement removes any possibility of prejudice to his substantial rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a). See also United States v. Tucker, 29 M.J. 915 (A.C.M.R.1989). Even if the error was to be considered of constitutional dimension, which it is not, I am convinced not only beyond reasonable doubt,, but beyqnd any doubt, that, absent trial counsel’s argument as to guilt of the greater offense, the military judge would have adjudged a sentence which exceeded that provided for in the pretrial agreement. United States v. Peoples, 29 M.J. 426 (C.M.A.1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986). I am equally convinced that the convening authority would not have reduced the sentence below that provided for in the agreement.
I would affirm the findings of guilty and the sentence as approved by the convening authority. There is no need for a rehearing on sentence.