(dissenting):
When investigative officers searched appellant’s home in June 1996, they seized not only his computer, which contained 126 files of child pornography divided into 4 directories he had labeled “Children,” “Pre-teen,” “Weird,” and “XXX”; they also seized one picture of verified child pornography and subscription information for the pornographic bulletin-board system appellant was running from his home.
In the end, appellant was only charged with a single specification of possession of child pornography, in addition to his larceny, conspiracy, and false claim offenses. Pursuant to a pretrial agreement, appellant pled guilty to all the charges and was sentenced only to a dishonorable discharge, 42 months’ confinement, total forfeitures, and a reduction to the lowest rank. He fared well.
Appellant now argues that his plea to the child pornography offense was improvident and that this Court should dismiss the conviction and reassess his sentence. For the following reasons, I believe that we should not do so.
By pleading guilty, appellant waived a trial on the facts and made a conscious decision to relieve the Government of its responsibility to prove all of the elements of its case. See United States v. Faircloth, 45 MJ 172 (1996). Essentially, a plea of guilty by an accused changes the substance of the court-martial. Further, “[bjecause [appellant] pleaded guilty, the issue must be analyzed in terms of providence of his plea, not sufficiency of the evidence,” changing the substance of our review as well. Id. at 174.
Thus, the bar for reversing a military judge’s finding that a plea was provident must be high. As this Court has noted, this rule is “rooted, in part, in our respect for the obvious tactical decision by an accused and his counsel to forgo possible defenses.” United States v. Roane, 43 MJ 93, 99 (1995), citing United States v. Logan, 22 USCMA 349, 350, 47 CMR 1, 2 (1973).
Appellant chooses now to raise a defense he could have raised before the military judge at his trial on October 7, 1996. He even failed to mention it in his November 22 response to the Staff Judge Advocate Recommendation on his court-martial. That defense hinges on an amendment to the federal child pornography statute proposed at a Senate Judiciary Committee hearing on June 4, 1996, written into Senate Report No. 104-358 on August 27, 1996, debated on the Senate floor on September 28, 1996, and signed into law on September 30, 1996. It is important to note that, although appellate defense counsel at oral argument conceded that the trial defense team “missed the boat,” appellant does not claim ineffective assistance of counsel but, rather, improvidence of his plea.
*395The mere possibility of a defense that appellant could have raised was that, because the law in June 1996 stated that it was a crime to knowingly possess “3 or more books, magazines, periodicals, films, video tapes, or other matter” which contained child pornography, and because appellant was only charged with possessing one hard drive containing child pornography, his charged conduct did not constitute a crime under 18 USC § 2252(a)(4)(A) (1994). The 1996 amendment on which appellant pins this argument changed the law to prohibit knowing possession of “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains 3 or more images of child pornography.” See 18 USC § 2252A(a)(5)(A) (1996). It is appellant’s contention that by amending the law clearly to include his behavior, Congress somehow admitted that the law had not previously encompassed it.
However, what appellant ignores in making this argument, and the majority undervalues in agreeing with it, is that “Congress may amend a statute simply to clarify existing law, to correct a misinterpretation, or to overrule wrongly decided cases. Thus, an amendment to a statute does not necessarily indicate that the unamended statute meant the opposite.” Hawkins v. United States, 30 F.3d 1077, 1082 (9th Cir.1994). The language of the Senate Report on which appellant relies does not necessarily mean what he wants it to mean — a determination that should have been left to the military judge.
Had appellant raised this defense in the first place, the Government would have been forced to prove that the 4 directories of child pornography, or possibly the 126 files of child pornography, on his hard drive constituted “other matter” as used in the preamendment statute. This is not an absurd argument and may, in fact, have been considered by appellant and his trial defense team in deciding to sign the pretrial agreement.
A similar defense as that which appellant now raises was tried and rejected by the Supreme Court in United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457 (1950). There, the Court applied the rule of ejusdem generis to determine that phonograph records, a fairly new and increasingly prevalent technology at the time, though not specified in the federal obscenity statute’s outdated list, could constitute “other matter.” The Court’s words then are relevant now: “The most important thing to be determined is the intent of Congress. The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress.” Id. at 681-82, 70 S.Ct. 352.
It may be appropriate at this point to remark on the sloppiness with which the Government approached its duty in preferring charges and making its case at court-martial. It is the Government’s failure to mirror carefully the language it chose in writing out the specification and preparing proposed instructions to that of the actual statute that gives appellant’s appeal the most vitality. However, this does not absolve defense counsel of their own carelessness.
Despite these flaws, I fail to see how they could have misled appellant and his defense team or prejudiced him in any way. In United States v. Felty, 12 MJ 438, 442 (CMA 1982), this Court found that a “technical variance between the offense alleged and that which is established from an accused’s own lips does not require setting aside the plea of guilty.” There, the appellant pleaded guilty to escape from custody but was, in reality, guilty of escape from confinement, two “different offenses.” Id. at 440. Included amongst the factors we considered to reach our decision was that the appellant
believed that he was guilty of an escape; according to his answers during the providence inquiry, he was indeed guilty. There is no reason to believe that the variance impaired his ability to prepare for trial, and the finding of guilty, if affirmed, would protect him from prosecution on any other charge of escape arising out of the same course of conduct.
Id. at 442.
Though the wording of the Article 134 specification charging the possession of child pornography was not the same as that in the statute, the statute was properly referenced as part of the charge and should have been within easy grasp of both detailed defense counsel and individual defense counsel. Likewise, a copy of the statute was attached to the Government’s proposed instructions.
*396In United States v. Meyer, 802 F.2d 348 (9th Cir.1986), cert. denied, 484 U.S. 817, 108 S.Ct. 71, 98 L.Ed.2d 35 (1987), the appellant there made a similar argument to that of appellant here. In that case, the appellant was also charged under the child pornography statute, and the indictment also misstated the wording of the statute. The indictment used statutory language which had been amended just prior to the appellant’s offense, stating an element of the crime was the “lewdness” of the exhibition depicted, not the “lasciviousness,” as Congress had just adjusted it to read. Id. at 351. The Ninth Circuit rejected the appellant’s argument, stating that it
fail[ed] to see how the wording of the indictment impaired his defense. See United States v. Pheaster, 544 F.2d 353, 363 (9th Cir.1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977).... Appellant does not seriously suggest that he was confused as to the charges he had to meet, see Pheaster, 544 F.2d at 363, and under the circumstances the indictment’s correct citation to the statute was adequate to inform him that lasciviousness was an element of the crime.
802 F.2d at 351.
The bottom line is that for the offenses to which appellant pleaded guilty, he could have faced a maximum punishment of a dishonorable discharge, 30/é years’ * confinement, total forfeitures, a reduction to the lowest enlisted rank, and an unlimited fine. His decision to sign the pretrial agreement removed the possibility of a fine, and, in the end, his confinement amounted to only 42 months. He got the benefit of his bargain. No amount of after-the-fact legal maneuvering should be allowed to break that legitimate deal.
Because I find appellant’s plea provident, I do not consider whether the substance of his defense is persuasive, an analysis best left to the factfinder. For these reasons, I would affirm.
ON PETITION FOR RECONSIDERATION
The United States, appellee, petitioned this Court for reconsideration, citing various precedents relating to the construction of 18 USC § 2252(a). It also appears that the issue of the proper construction of 18 USC § 2252(a) has been raised in other cases presently pending in this Court and can be considered in the disposition of those eases. United States v. Augustine, No. 98-5026, and United States v. Sapp, No. 99-0260.
However, the United States did not cite any new authorities which might warrent reconsideration of this Court’s earlier decision that appellant’s pleas of guilty were improvident and that the findings and sentence based thereon should be set aside. 50 MJ 385, 390 (1999).
Accordingly, it is, by the Court, this 30th day of September 1999
ORDERED:
That the Petition for Reconsideration as it relates to the construction of 18 USC § 2252(a) is granted and the opinion of the Court is withdrawn insofar as it relates thereto. Reconsideration of the Court’s pri- or decision setting aside the findings and sentence is denied. The Court reserves the issue concerning the proper construction of 18 UCS § 2252(a) for further consideration if raised in some other case, or if raised again in this case after further proceedings in the courts below.
[AND]
That the second sentence of the first paragraph of Part IV is amended to read as follows:
The finding of guilty of specifiaction 1 of Charge I and the sentence are set aside.
[AND]
That the last sentence of the first paragraph of Part IV is amended to read as follows:
A rehearing on specification 1 of Charge I and the sentence may be ordered.
. Counsel agreed on the record that the maximum confinement was 2515 years; however, a recalculation indicates that total confinement could have amounted to 3015 years.