concurring in part and dissenting in part:
I agree with the majority that it would, unfortunately, be inappropriate for the Court to reconsider a prior panel’s sentence determination simply because we disagree with that assessment. I also agree that this Court has authority under Article 66(c) to *689review the decision to court-martial Appellant while a state court trial is pending, to determine whether that decision comported with Coast Guard policy and procedural requirements. I disagree, however, with the majority’s holding that a state court sentence arising from the same acts that previously resulted in the announcement of a court-martial sentence may be considered by a court of criminal appeals in determining the appropriateness of that court-martial sentence.
We held in our prior consideration of this ease that, despite a pending state prosecution arising out of the same misconduct, Appellant’s court-martial had proper jurisdiction to proceed. United States v. Hutchison, 55 M.J. 574, 581 (C.G.Ct.Crim.App.2001). It is well established that prosecutions by separate sovereigns for the same offense are not precluded by Fifth Amendment double jeopardy concerns. Id. at 579. Additionally, we found that the authorization to proceed with the court-martial had comported with the Secretarial regulations, promulgated pursuant to ROM 201(d)(2), governing court-martial in these circumstances. Id. at 581.
Having held that Appellant’s court-martial accorded with both law and Coast Guard policy, we nevertheless went on to lessen the court-martial sentence as an exercise of our Article 66(c) sentence appropriateness authority. We did this because we were “concerned that Appellant was tried and punished twice for the same acts.” Id. I believe that our consideration of the subsequent action by the state in this case violated fundamental notions of federalism, and that our prior decision therefore cannot stand.
“Federalism” precludes equitable intervention by federal courts in state court proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Though the prohibition of Younger was directed at federal injunction of state court proceedings, I believe the power conferred by Article 66(c), that is, the “judicial function of assuring that justice is done and the accused gets the punishment he deserves,” can fairly be described as “equitable,” and should be circumscribed by the same restrictions applicable to other equitable powers, to the extent that their exercise may unduly impinge on state authority.
In our prior decision, we did not opine that the punishment adjudged at court-martial was unjust. In fact, we noted that “[njormally, a punitive discharge and reduction in pay-grade [sic] would appear to us as appropriate sentence elements for the kind of offenses committed by Appellant.” 55 M.J. at 582. Instead, we based our decision on our belief that “Appellant should not have been tried and punished twice for these offenses.” Id. In other words, we did not doubt the appropriateness of the court-martial sentence. Our only concern was with the propriety of the later state-imposed sentence. Since “we have no authority to do anything with respect to the South Carolina court’s conviction and sentence,” because we obviously lack any jurisdiction to do so, we instead used our plenary power to “lessen [the ] effect [of the state-imposed punishment ] by modifying the court-martial sentence.” Id. at 581 (emphasis added). This back door employment of our Article 66(c) power to offset, in effect, a criminal sentence duly imposed by a state impermissibly interfered with the state’s exercise of its criminal jurisdiction.
Our invocation of United States v. Pierce, 27 M.J. 367 (CMA 1989), to justify our action was in error. Pierce may indeed justify the lessening of a court-martial sentence when a service member has been “twice punished for the same offense____” Id. at 369. However, Supreme Court double jeopardy jurisprudence makes it clear that the basis for the State punishment in this case was not, as in the Pierce court-martial for an offense earlier the subject of nonjudicial punishment, the same offense, but was instead an entirely separate offense. “[I]t cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Bartkus v. Illinois, 359 U.S. 121, 131-32, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), quoting Moore v. Illinois, 55 U.S. (14 How.) 13, 20, 14 L.Ed. 306 (1852). The Federal prosecution in this case was for offenses under Federal law; the state prosecution was for an offense *690under state law.5 Thus, our invocation of sentence appropriateness authority to alleviate our concern that Appellant was punished twice for the same offense was in reality the imposition of a double jeopardy bar to prosecution by separate sovereigns even though, by law, no such bar exists.
Appellant, to his misfortune, committed his crimes in a state whose criminal justice authorities were not satisfied by the court-martial result. The state prosecutor and judge were both aware of the prior results of Appellant’s court-martial. R. at Gov’t Mot. Recons. With knowledge of the sentence adjudged at court-martial, the state prosecutor sought, and the state judge imposed, additional punishment that they determined to be appropriate. We should also recognize that the state legislature knows how, if it so desires, to limit the authority of its prosecutors to phrsue the punishment of acts that have led to prior punishment by another sovereign. See S.C.Code Ann. § 44-53-410 (Law.Co-op.1971) (barring prosecution for narcotics offenses if the same act has previously led to conviction or acquittal under federal law or the law of another state).
In spite of these facts, we exercised our Article 66(c) power to limit, in effect, the state’s exercise of its own criminal justice jurisdiction. At that point, of course, the state lacked any power to offset our explicit “lessening” of the effect of its punishment. So denying a state its full power to enforce criminal law because a convening authority has “won the race to the courthouse,” Heath v. Alabama, 474 U.S. 82, 93, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), is an “untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines.” Id. (quoting Bartkus, 359 U.S. at 137, 79 S.Ct. 676). I believe this was impermissible.
In light of the foregoing discussion, I would determine anew what sentence, or part thereof, should be approved pursuant to Article 66(c), UCMJ, without considering the subsequently imposed state sentence. I would then agree with the majority in our prior decision of this case that “no other basis ... warrants setting aside the findings and sentence____”55 M.J. at 581.
. Cf. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 5 L.Ed. 19 (1820) (State statute imposed state sanction for violations of a federal law. State prosecution held to be not for a similar crime arising out of the same conduct, but for the same crime.). See discussion at Bartkus v. Illinois, 359 U.S. 121, 130, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).