In re Brown v. United States

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

Misc. Dkt. No. 2023-07
________________________

In re Captain Leon A. BROWN IV
Petitioner
_______________________

Petition for Extraordinary Relief in the Nature of a Compassionate
Release Pursuant to 18 U.S.C. § 3582
Decided 29 February 2024
________________________

Military Judge: Natalie D. Richardson.
Approved sentence: Dismissal, confinement for 24 years and 9 months,
and forfeiture of all pay and allowances. Sentence adjudged 9 December
2014 by GCM convened at Minot Air Force Base, North Dakota.
For Petitioner: None.
Before ANNEXSTAD, KEARLEY, and WARREN, Appellate Military
Judges.
Judge WARREN delivered the opinion of the court, in which Senior
Judge ANNEXSTAD and Judge KEARLEY joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
WARREN, Judge:
Petitioner (proceeding pro se) invokes 18 U.S.C. § 3582 and seeks in effect,
clemency, in the form of a sentence reduction of his affirmed court-martial sen-
tence from the military judge who imposed his sentence at trial. Petitioner’s
case was previously rendered final within the meaning of Article 76, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 876, by the approval of his sen-
tence following the completion of appellate review. Thus, Petitioner seeks relief
from both a judge and a court ineligible to grant it—as he requests ultra vires
action from a military judge whose authority as trial judge to act has long since
 In re Brown, Misc. Dkt. No. 2023-07

expired with the completion of trial, and a court whose authority to grant ex-
traordinary writs is circumscribed by the prior completion of direct appellate
review. Accordingly, after careful consideration, and for the reasons cited be-
low, Petitioner’s request for compassionate release, filed pursuant to 18 U.S.C.
§ 3582, is denied for lack of jurisdiction.

I. BACKGROUND
A. Court-Martial Conviction and Appellate Review
Petitioner seeks sentencing relief from his sentence to confinement im-
posed as a consequence of his 9 December 2014 court-martial conviction. At his
general court-martial, a military judge sitting alone convicted Petitioner for
violations of Articles 92, 112a, 120b, 133, and 134, UCMJ, 10 U.S.C. §§ 892,
912a, 920b, 933, 934,1 for misconduct ranging from June 2012 to January 2014.
During this timeframe, Petitioner, then a captain in the United States Air
Force, formed a “Crips” gang in Minot, North Dakota, and engaged in a multi-
tude of associated violent misconduct, including: sexual assault of children (en-
gaging sexual intercourse with multiple girls who were under the age of 16),
distributing drugs and alcohol to minors, operating a prostitution ring, and
threatening to harm people who testified against him. Appellant was sen-
tenced to 25 years of confinement, forfeiture of all pay and allowances, and a
dismissal from the United States Air Force.
On initial appeal under Article 66, UCMJ, 10 U.S.C. § 866, this court af-
firmed all of Petitioner’s convictions, save one, and affirmed 24 years and 9
months of his adjudged confinement. United States v. Brown, No. ACM 38864,
2017 CCA LEXIS 454, at *74 (A.F. Ct. Crim. App. 6 Jul. 2017) (unpub. op.).2 In
so doing, this court reviewed all the evidence in Petitioner’s case, including his
multiple jail recordings captured during Petitioner’s pretrial confinement
wherein he talked with other imprisoned Air Force personnel about his having
sex with the underaged girls concerned and distributing drugs. Id. at *8–16.
Appellant then petitioned the United States Court of Appeals for the
Armed Forces (CAAF) for a new trial. The CAAF remanded the case to this
court for consideration of Appellant’s 2017 petition for a new trial. United
States v. Brown, 77 M.J. 197 (C.A.A.F. 2018) (mem.). This court duly

1 Reference to the punitive articles in this opinion are to the Manual for Courts-Mar-

tial, United States (2012 ed.) (2012 MCM).
2 This court granted Petitioner partial relief during that prior appeal, holding that his

Article 134, UCMJ, conviction for Unlawful Entry was legally and factually insuffi-
cient, and dismissing that specification. Brown, unpub. op. at *32–33. The court also
provided Petitioner with one additional week of confinement credit for a violation of
Article 13, UCMJ, 10 U.S.C. § 813. Id. at *68–69.

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considered and denied that petition, concluding that Petitioner’s “new evi-
dence”—essentially a post-trial declaration from a non-testifying witness to the
North Dakota underage sex events, whose “new” information was already ex-
tant and available at the time of trial—was insufficient to warrant relief.
Brown v. United States, Misc. Dkt. No. 2017-10, 2018 CCA LEXIS 275 (A.F.
Ct. Crim. App. 23 May 2018) (unpub. op.). The CAAF then denied Petitioner’s
petition for review. United States v. Brown, 78 M.J. 162 (C.A.A.F. 2018). Fol-
lowing denial of the CAAF petition, a final court-martial order completing di-
rect appellate review in Petitioner’s case was issued on 16 January 2019, af-
firming both his dismissal from the service and 24 years and 9 months of his
adjudged confinement, rendering the case “final” for purposes of Article 76,
UCMJ.
B. Petitioner’s Federal Action for Habeas Corpus (28 U.S.C. § 2241)
Petitioner is currently serving his approved confinement at the Federal
Penitentiary in Lompoc, California. His current petition follows on the heels of
his unsuccessful collateral attack upon his conviction through a writ of habeas
corpus petition pursuant to 28 U.S.C. § 2241 before the United States District
Court for the Central District of California. See Brown v. United States, 2021
U.S. Dist. LEXIS 122631, at *28 (C.D. Cal. 29 Jun. 2021) (holding “the Court
easily concludes that Petitioner received full and fair review on direct appeal
of the constitutional sufficiency of the evidence supporting these convictions”)
(citations omitted)); aff’d, 2022 U.S. App. LEXIS 26265 (9th Cir., 20 Sep. 2022);
cert. denied, 2023 U.S. LEXIS 2211 (30 May 2023).
C. Petition for Compassionate Release (18 U.S.C. § 3582)
With direct review complete and his prior habeas corpus petition denied,
Petitioner now seeks relief under 18 U.S.C. § 3582 from his approved sentence,
and personally addresses his petition to Colonel Richardson, now a senior judge
on this court, as she was the original trial judge who presided over his judge-
alone general court-martial. This court received, by mail, Petitioner’s filing on
16 August 2023, and docketed his petition on 18 August 2023. The court did
not order a brief by the Government. Petitioner requests the following in his
prayer for relief: (1) “To resentence [Petitioner] to time served or ten years; or
(2) A recommendation for clemency or parole; or (3) Appoint [Petitioner] a mil-
itary defense attorney and certify any questions from this motion to the
[CAAF].” Petitioner argues that he has established “extraordinary and

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compelling reasons that warrant relief,” in what Petitioner styles as: (1) “new
mitigating evidence”3 and (2) his rehabilitative efforts while in confinement.
II. DISCUSSION
The questions of law before the court are these:
(1) Whether 18 U.S.C. § 3582 applies to courts-martial; and,
(2) Whether the All Writs Act, 28 U.S.C. § 1651, expands the ju-
risdictional reach of trial courts-martial, or this court, to grant
clemency requested pursuant to 18 U.S.C. § 3582.
In answering these questions, we consider: (1) the applicability (or lack
thereof) of federal sentencing rules codified in 18 U.S.C. §§ 3551–3599 to
courts-martial in the first instance; (2) the nature of 18 U.S.C. § 3582 as a
“clemency statute” overseen by the federal trial judiciary; (3) the limited scope
of authority for detailed military judges co-extensive only to cases in which
they are detailed; and (4) the limited jurisdiction of this court under the All
Writs Act for extraordinary writs filed after a case has become final under Ar-
ticle 71, UCMJ, 10 U.S.C. § 871, and Article 76, UCMJ. We address each of
these areas in turn.
A. Law
1. Scope of Jurisdiction and Standard of Review
“The burden to establish jurisdiction rests with the party invoking the
court’s jurisdiction.” United States v. LaBella, 75 M.J. 52, 53 (C.A.A.F. 2015)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
In making this determination, our superior court “read[s] the statutes govern-
ing our jurisdiction as an integrated whole, with the purpose of carrying out
the intent of Congress in enacting them.” United States v. Lopez de Victoria,
66 M.J. 67, 69 (C.A.A.F. 2008) (citations omitted). “Like all federal courts, we
‘have an independent obligation to determine whether subject-matter jurisdic-
tion exists, even in the absence of a challenge from any party.’” M.W. v. United
States, 83 M.J. 361, 363 (C.A.A.F. 2023) (quoting Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006)).
Military appellate courts are “courts of limited jurisdiction, defined entirely
by statute.” United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015) (citing
United States v. Politte, 63 M.J. 24, 25 (C.A.A.F. 2006)); see also Clinton v.
Goldsmith, 526 U.S. 529, 534 (1999) (holding the CAAF exceeded its statutory

3 It appears Petitioner’s “new mitigating evidence” consists of the same four affidavits

he attached to his prior unsuccessful petition for new trial. See Brown v. United States,
Misc. Dkt. No. 2017-10, 2018 CCA LEXIS 275, at *3–5 (A.F. Ct. Crim. App. 23 May
2018) (unpub. op.).

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jurisdiction and the All Writs Act did not authorize the CAAF to grant Appel-
lant an injunction against a pending action by the Secretary of the Air Force
to drop him from the rolls of the Air Force). Our primary statute providing our
subject-matter jurisdiction for post-trial appeals from a court-martial convic-
tion is Article 66, UCMJ, which, pertinent to this petition, provides an expan-
sive scope of “sentence appropriateness review” on appeal. See Article
66(d)(1)(A), UCMJ (authorizing military Courts of Criminal Appeals (CCAs) to
“affirm only . . . the sentence, or such part or amount of the sentence, as the
Court finds correct in law and fact and determines, on the basis of the entire
record, should be approved”). However, that exercise of sentence appropriate-
ness review is distinct from and does not empower military CCAs to engage in
acts of “clemency” to effect requested sentencing relief by an appellant. See
United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988) (“Sentence appropriate-
ness involves the judicial function of assuring that justice is done and that the
accused gets the punishment he deserves. Clemency [on the other hand,] in-
volves bestowing mercy—treating an accused with less rigor than he de-
serves.”); United States v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998) (holding Ar-
ticle 66, UCMJ, empowers the CCAs to “do justice,” with reference to some
legal standard, but does not grant the CCAs the ability to grant mercy).4
While we have no explicit statutory authority under Article 66, UCMJ, to
review writs and petitions filed on collateral appeal of a previously finalized
case, “[t]he All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to
issue extraordinary writs necessary or appropriate in aid of its jurisdiction.”
Chapman v. United States, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citing
Loving v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005) (citing Clinton, 526
U.S. at 534)). “However, the Act does not enlarge our jurisdiction, and the writ
must be in aid of our existing statutory jurisdiction.” Id. (citing Clinton, 526
U.S. at 534–35); see also Sutton v. United States, 78 M.J. 537, 541 (A.F. Ct.
Crim. App. 2018) (holding no jurisdiction to issue extraordinary writs of prohi-
bition or mandamus requested after direct appeal was complete under Article

4 The CAAF has regularly applied the Healy doctrine and on occasion has remanded

cases where the service CCAs exceeded their authority and strayed into de facto acts
of clemency in exercising their Article 66, UCMJ, powers. See, e.g., United States v.
Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002) (overruling the United States Coast Guard
Court of Criminal Appeals’ reduction of a sentence where that court erroneously sought
to lessen the lawful sentence of the court-martial to minimize the impact of a state
court sentence of the appellant on the same underlying charges); United States v. Ne-
rad, 69 M.J. 138, 148 (C.A.A.F. 2010) (overruling this court’s dismissal of a legally and
factually sufficient finding for possession of child pornography by a then-19-year-old
appellant of his then-17-year-old girlfriend based upon this court essentially exercising
raw powers of equity in reasoning that it was “not the sort of conduct which warrants
criminal prosecution”).

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71, UCMJ, and the case was final under Article 76, UCMJ, because: “[i]n the
simplest terms, there is no one to order to take or not take an action after a
case is final under Article 76, UCMJ, . . .”).
2. Title 18, United States Code
Part II of Title 18, United States Code, codifies criminal procedure applica-
ble to specified courts established by Congress, primarily to United States dis-
trict courts, the United States courts of appeals, and the United States Su-
preme Court. See 18 U.S.C. § 3001 (citing to Federal Rules of Criminal Proce-
dure to define, inter alia, the scope of the codified criminal procedure statutes;
purpose and construction of rules; proceedings to which the rules apply; and
the courts to which they apply).5 The Federal Rules of Criminal Procedure
(Rules) make no mention of courts-martial, military CCAs, or the CAAF. In-
stead, the Rules and their associated statutory cross references, explicitly refer
only to civilian courts.6
Similarly, the sentencing procedures codified in Chapter 227 of Part II of
Title 18, United States Code, apply only to those courts sentencing under those
Rules, i.e., federal district courts. Cf. 18 U.S.C. § 3557 (citing 18 U.S.C. § 3742)
(reciting “[a] defendant may file a notice of appeal in the district court for re-
view of any otherwise final sentence” (emphasis added)). More pointedly, 18
U.S.C. § 3551, Authorized sentences, explicitly excludes courts-martial from
Chapter 227 sentencing rules, stating:
[A] defendant who has been found guilty of an offense described
in any Federal statute . . . other than an Act of Congress appli-
cable exclusively in the District of Columbia or the Uniform Code
of Military Justice . . . shall be sentenced in accordance with the
provisions of [Chapter 227] . . . .

5 See also FED. R. CRIM. P. 1(a) (“These [R]ules govern the procedure in all criminal

proceedings in the United States district courts, the United States courts of appeals,
and the Supreme Court of the United States.”).
6 Likewise, in defining the term “judge,” the Rules make no reference to military
judges. See FED. R. CRIM. P. 1(b)(3) (citing 28 U.S.C. § 451) (“‘Federal judge’ means . . .
a justice or judge of the United States as these terms are defined in 28 U.S.C. § 451.”).
Our superior court has affirmatively interpreted 28 U.S.C. § 451’s definition of judges
as excluding military judges. See United States v. Rachels, 6 M.J. 232, 234 (C.M.A.
1979) (“As the term ‘judge of the United States’ is defined in 28 U.S.C. § 451 as ‘judges
of . . . any court created by Act of Congress, the judges which are entitled to hold office
during good behavior,’ we conclude the statute is inapplicable to military judges.”
(Omission in original).); see also Ackerman v. Novak, 483 F.3d 647, 652 (10th Cir. 2007)
(“In contrast to Article III judges who hold office during good behavior, Article I mili-
tary judges do not hold office during good behavior.”).

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18 U.S.C. § 3551(a).
Returning to the statute at direct issue for this petition, 18 U.S.C. § 3582(c)
provides in relevant part:
The court[7] may not modify a term of imprisonment once it has
been imposed except that—(1) in any case—(A) the court, upon
motion of the Director of the Bureau of Prisons, or upon motion
of the defendant after the defendant has fully exhausted all ad-
ministrative rights to appeal a failure of the Bureau of Prisons
to bring a motion on the defendant’s behalf or the lapse of 30
days from the receipt of such a request by the warden of the de-
fendant’s facility, whichever is earlier, may reduce the term of
imprisonment (and may impose a term of probation or super-
vised release with or without conditions that does not exceed the
unserved portion of the original term of imprisonment), after
considering the factors set forth in [18 U.S.C. § 3553(a)] to the
extent that they are applicable, if it finds that—(i) extraordinary
and compelling reasons warrant such a reduction . . . .
Congress did not define “extraordinary and compelling reasons” but rather
delegated that authority to the United States Sentencing Commission to delin-
eate those reasons in a policy statement. See United States v. Beltran, 2021
U.S. Dist. LEXIS 47480, at *4 (E.D. Tex. 15 Mar. 2021) (unpub. op.). In setting
forth the applicable factors for courts to consider in deciding whether “extraor-
dinary circumstances” warrant post-trial sentencing reduction, the Sentencing
Commission’s policy statement specifically analogizes the power to grant sen-
tence reduction requests under 18 U.S.C. § 3582(c) as an approximation of the
long-since-defunct parole process for federal civilian inmates, which Congress
previously abrogated. The Sentencing Commission’s recent policy statement
observed that: “In effect, [18 U.S.C. § 3582(c)(1)(A)] replaced opaque Parole
Commission review of every federal sentence with a transparent, judicial au-
thority to consider reducing only a narrow subset of sentences—those present-
ing ‘extraordinary and compelling’ reasons for a reduction.” AMENDMENTS TO
THE SENTENCING GUIDELINES: AMENDMENTS TO THE SENTENCING GUIDE-
LINES, POLICY STATEMENTS, OFFICIAL COMMENTARY, AND STATUTORY INDEX
11 (1 Nov. 2023).8
Since 2018, 18 U.S.C. § 3582 has allowed defendants to petition district
courts directly for compassionate release, eschewing the earlier statutory

7 As explained supra, the term “court” here pertains to federal district courts.
8 Found at https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-
text-amendments/202305_Amendments.pdf (last accessed 15 Jan. 2024) (providing the
U.S. Sentencing Commission’s recommended amendments to the Congress).

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requirement that such petitions required endorsement by the petitioner’s
prison warden prior to forwarding a petition to the applicable district court for
substantive consideration. See United States v. Greene, 516 F.Supp.3d 1, 21
(D.D.C. 2021) (per curiam) (holding that one intent of the amendment was to
“expand[ ] the use of compassionate release by removing the [Federal Bureau
of Prisons] as a gatekeeper to judicial consideration of sentence reduction mo-
tions” (first alteration in original)).
B. Analysis
The foundational issue in this case is subject-matter jurisdiction, specifi-
cally, whether this court or any military trial judge has subject-matter juris-
diction over clemency writs styled as requests for sentencing relief filed on col-
lateral review.
Recently, this court addressed a petition under 18 U.S.C. § 3582 for com-
passionate release. In May 2022, this court denied a similar pro se petition in
a separate case seeking relief directly from this court. In re Kawai, Misc. Dkt.
No. 2022-02, 2022 CCA LEXIS 310, at *7 (A.F. Ct. Crim. App. 25 May 2022)
(unpub. order). What In re Kawai did not address was a situation in the case
at bar, namely: whether a military trial judge could qualify as a sentencing
court for the purpose of granting a “compassionate release” pursuant to 18
U.S.C. § 3582. We answer that question today with an unequivocal no.
Turning to Petitioner’s request for sentence reduction due to his purported
extraordinary circumstances under 18 U.S.C. § 3582(c)(i), we find that neither
we nor any military trial judge has authority to grant such a request. We ad-
dress three issues leading to our conclusion: (1) 18 U.S.C. § 3582 applies to the
federal trial judiciary not the military judiciary; (2) the limited scope of author-
ity for detailed military trial judges is co-extensive only to cases in which they
are currently detailed, and extends only to recommendations for clemency; and
(3) the limited jurisdiction of this court to hear collateral appeal writs does not
extend to clemency requests.
1. 18 U.S.C. § 3582 Does Not Apply to Courts-martial
Both the structure of the United States Code itself (with full provision
made by Congress for courts-martial under the UCMJ in Title 10, United
States Code) as well as the substantive criminal procedural statutes exclude
courts-martial.9 By its clear terms, Chapter 227 applies to federal district

9 Our conclusion is not new, since the first decade of the UCMJ, this court has recog-

nized the obvious—that courts-martial are governed by their own procedural rules for
sentencing, not Title 18, United States Code. See United States v. Castro, 28 C.M.R.
760 (A.F.B.R. 1959) (affirming denial of defense counsel’s request for appellant to be

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courts—18 U.S.C. § 3557, citing 18 U.S.C. § 3551, categorically excludes of-
fenses punishable under the UCMJ from the sentencing rules applicable to
federal district courts. Moreover, other provisions of Title 18 demonstrate that
this was no oversight to exclude military courts from the procedural sentencing
rules applicable to federal district courts—when Congress wanted to mention
the military, they did so explicitly. See, e.g., 18 U.S.C. § 1385 (forbidding the
use of military forces as a posse comitatus to enforce civilian law); 18 U.S.C.
§ 3261 (creating extra-territorial jurisdiction over offenses committed by mili-
tary members and persons accompanying the military for Title 18 offenses pun-
ishable by imprisonment for more than one year if the conduct had been en-
gaged in within the special maritime and territorial jurisdiction of the United
States). None of those references however sought to apply Title 18 procedural
sentencing rules to courts-martial.10
Moreover, the evanescent nature of courts-martial, in contrast to the
“standing courts” of the federal district courts, demonstrate the practical im-
possibility of investing 18 U.S.C. § 3582 power to courts-martial. Unlike the
standing federal district courts, established and organized by Congress under
Title 28, courts-martial emanating from Title 10 are creatures of necessity,
convened only on an “as needed” basis by convening authorities. That basic
paradigm represents a continuity of practice from the founding of the American
military justice system under the 1775 Articles of War to present day. See
United States v. Weiss, 36 M.J. 224, 228 (C.M.A. 1992) (“A court-martial is a
temporary court, called into existence by a military order and dissolved when
its purpose is accomplished.” (Citations omitted).). No lesser authority than
Colonel William W. Winthrop, whom both the United States Supreme Court
and the CAAF refer to as the “Blackstone of Military Law,”11 affirms this in his
foundational treatise: “[A court-martial] has no common law powers whatever,

sentenced pursuant to 18 U.S.C. § 5010—i.e., probation in lieu of confinement for
youthful offenders—because the term “court” in the statute applied to the district
courts of the United States and not courts-martial). Our superior court and sister ser-
vice CCAs agreed. See United States v. Baker, 34 C.M.R. 91, 93 (C.M.A. 1963) (holding
that 18 U.S.C. § 5031, Federal Juvenile Delinquency Act, is inapplicable to courts-mar-
tial); United States v. West, 7 M.J. 570, 571 (A.C.M.R. 1979) (holding the same statute
“has no application to proceedings under the Uniform Code of Military Justice” (cita-
tions omitted)).
10 Tellingly, 18 U.S.C. § 3261(c) specifically preserved the independent jurisdiction of

courts-martial in trying these types of offenses: “Nothing in this chapter [18 U.S.C.S.
§§ 3261 et seq.] may be construed to deprive a court-martial . . . of concurrent jurisdic-
tion with respect to offenders or offenses that by statute or by the law of war may be
tried by a court-martial . . . .” (First alteration in original).
11 See United States v. New, 55 M.J. 95, 121 (C.A.A.F. 2001) (citing Reid v. Covert, 354

U.S. 1, 19 n.38 (1957) (plurality opinion)).

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but only such powers as are vested in it by express statute or may be derived
from military usage.” WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 15
(2d ed. 1920). For over a century, the Supreme Court has affirmed this view,
and military appellate courts have similarly relied upon that interpretation.
See Weiss, 36 M.J. at 228; United States v. Singleton, 45 C.M.R. 206, 208
(C.M.A. 1972) (quoting Runkle v. United States, 122 U.S. 543, 556 (1887)) (“A
court-martial organized under the laws of the United States is a court of special
and limited jurisdiction. It is called into existence for a special purpose and to
perform a particular duty. When the object of its creation has been accom-
plished, it is dissolved.” (Emphasis added).).
To understand the limited authority of trial judges at courts-martial, we
take note of how the Supreme Court has historically construed the jurisdiction
of military courts. While the Supreme Court rendered their Runkle opinion in
construing pre-UCMJ courts-martial, for purposes of Petitioner’s case, the un-
derlying process is substantially similar, involving a court convened by com-
mand authority with detailed members of that court-martial (be they court
members or a military judge) exercising limited duties articulated under the
Rules for Courts-Martial12 and expiring upon the completion of the trial and
convening authority “action” in the case.13 Court members do not remain de-
tailed to courts-martial outside the parameters of the convening order which
created the court-martial. So too, military trial judges exercise no inherent au-
thority; they wield power solely when detailed to a court-martial, and pertinent
to Petitioner’s court-martial, only until the convening authority’s action (which
officially triggered the forwarding of his court-martial for direct appellate re-
view).14

12 See generally Rule for Courts-Martial (R.C.M.) 502 (duties of court members, coun-

sel, and military judge); R.C.M. 503 (detailing court members, counsel, and military
judge); R.C.M. Chapters IX and X (setting forth Trial Procedures Through Findings
and Sentencing procedures).
13 Petitioner’s court-martial preceded the Military Justice Act of 2016 (Pub. L. No. 114-

328, § 5333, 130 Stat. 2000, 2936 (2016)). Accordingly, convening authority “action”
under the previous version of R.C.M. 1107 (2012 MCM) was required prior to Peti-
tioner’s case transitioning for automatic appellate review.
14 The CAAF specifically states in Weiss,

Military judges perform duties prescribed by statute and the executive
order when detailed to a specific court-martial. Military judges have no
inherent judicial authority separate from a court-martial to which they
have been detailed. When they act, they do so as a court-martial, not
as a military judge. Until detailed to a specific court-martial, they have

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2. 18 U.S.C. § 3582 Functionally is a Clemency Statute
In addition to not being applicable to military courts-martial because
courts-martial are not qualifying courts within the meaning of the procedural
sentencing rules set forth in Chapter 227 of Title 18, the sentence relief Peti-
tioner seeks under 18 U.S.C. § 3582 is beyond the scope of our jurisdiction be-
cause it essentially functions as a clemency statute. That is, the predicate for
sentence reductions is circumstances arising after the convicted misconduct.
See 18 U.S.C.S. Appx. § 1B1.3(b); AMENDMENTS TO THE SENTENCING GUIDE-
LINES 11.15 So unlike Article 66(d), UCMJ, sentence appropriateness review,
the extraordinary circumstances which serve as a basis for sentence reduction
under 18 U.S.C. § 3582(c) are not emblematic that the sentence was inappro-
priate from its inception,16 but rather that the appellant’s personal

no more authority than any other military officer of the same grade
and rank.
36 M.J. at 228 (citations omitted). Specifically, at the time of Petitioner’s court-martial,
the military trial judge’s authority to take post-trial actions in the case expired upon
the judge’s authentication of the record of trial. See R.C.M. 1102(b)(2) (2012 MCM)
(authorizing the military judge to convene post-trial Article 39(a), UCMJ, 10 U.S.C.
§ 839(a), sessions only prior to the authentication of the record of trial).
15 The Sentencing Commission defines six applicable factors for determining “extraor-

dinary and compelling reasons” under 18 U.S.C. § 3582(c)(1): (1) medical circum-
stances of the defendant; (2) age of the defendant; (3) family circumstances of the de-
fendant; (4) the defendant was a victim of physical or sexual abuse while serving a
federal term of imprisonment; (5) other reasons (i.e., “any other circumstance or com-
bination of circumstances that, when considered by themselves or together with any of
the reasons described in paragraphs (1) through (4), are similar in gravity to those
described in paragraphs (1) through (4)”); and (6) because of a change in the law, the
defendant received an unusually long sentence resulting in sentence disparity and has
served at least ten years of the term of imprisonment. See 18 U.S.C.S. Appx.
§ 1B1.13(b) (26 Dec. 2023); see also AMENDMENTS TO THE SENTENCING GUIDELINES 1–3
(1 Nov. 2023).
16 We acknowledge two limited exceptions to this rule: (1) conditions of post-trial con-

finement (see United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001) (authorizing
sentence reduction for post-trial conditions imposing cruel and unusual punishment);
see also United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015) (authorizing
sentence reduction for post-trial conditions even when they do not rise to the level of
cruel and unusual punishment), aff’d, 75 M.J. 264 (C.A.A.F. 2016)); and (2) excessive
post-trial delay (see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002); Article
66(d)(2), UCMJ).
Outside those circumstances, military CCAs are constrained to conducting sentence
appropriateness review, and granting sentence appropriateness relief, only on the ba-
sis of the materials in the record on appeal. See Healy, 26 M.J. at 396 (“Although the

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circumstances unrelated to the convicted misconduct warrants relief as a mat-
ter of mercy. “Mercy” is a hallmark of clemency—which is categorically beyond
the statutory ambit of this court’s Article 66(d), UCMJ, sentence appropriate-
ness review. See Healy, 26 M.J. at 395–96.
3. Military Trial Judges Have No Authority to Grant Clemency
Petitioner contends that Senior Judge Richardson, personally, is author-
ized by 18 U.S.C. § 3582 to grant him sentencing relief. We disagree. Applying
the plain language of the statute, we find that Senior Judge Richardson is not
a court of competent jurisdiction for this petition because the statute mandates
that such petitions be adjudicated by the “sentencing court.” See, e.g., Ambriz
v. United States, 465 F.Supp.3d 630, 632 (N.D. Tex. 2020).17 We hold that nei-
ther Senior Judge Richardson, nor any military trial judge, has authority to
grant Petitioner’s requested relief under 18 U.S.C. § 3582 because there is no
“sentencing court” still in existence authorized to grant Petitioner relief under
18 U.S.C. § 3582(c). Given the jurisdictional limits of courts-martial (Articles
16 and 76, UCMJ) and the enumerated powers of the military judges detailed
to them (Articles 26 and 60(b)(2), UCMJ), the authority of Appellant’s original
court-martial—and Senior Judge Richardson as the then-presiding military

Code provides a means after trial for an accused to get clemency-oriented information
into the ‘record’ prior to action by the convening authority and thereby can bring this
information to the attention of the Court of Military Review, the Code does not provide
an opportunity for the accused and his counsel to supplement the ‘record’ after the
convening authority has acted.”).
17 Our interpretation aligns with the growing consensus amongst federal district courts

adjudicating 18 U.S.C. § 3582 petitions. While Petitioner cites to a minority view
voiced by the United States District Court for the Eastern District of Michigan in Fer-
guson v. United States, 592 F.Supp.3d 614, 615 (E.D. Mich. 21 Mar. 2022), which iden-
tified a “sentencing judge” vice the sentencing “court” as the entity to take action on
said petitions—that decision is an outlier. Indeed, the two cases Ferguson cited for that
proposition recite that compassionate release petitions are required to be submitted to
petitioner’s “sentencing court.” Id. at 616 (citing Washington v. Warden Cannan USP,
858 F.App’x. 35, 36 (3d Cir. 2021) (per curiam) (finding that “such a request [under 18
U.S.C. § 3582(c)(1)(A)(i)] needed to be directed to the sentencing court (in Kentucky)”);
then citing Ambriz, 465 F.Supp.3d at 632 (citing Landazuri v. Hall, 423 F.App’x. 475
(5th Cir. 2011) (“Because Landazuri did not file this [18 U.S.C. § 3582(c)] challenge to
his sentence in the court in which he was sentenced, the district court ruled correctly
that it lacked jurisdiction to consider it.” (Alteration in original).)).
Having ourselves revisited the clear statutory language in 18 U.S.C. § 3582(c)(1), and
taking into account the repeated consistent construction of that same language in pub-
lished decisions both by United States District Courts and United States Circuit
Courts of Appeals, we conclude that it is the institution (i.e., sentencing court) not the
individual (i.e., sentencing judge) which 18 U.S.C. § 3582 vests jurisdiction over com-
passionate release petitions.

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trial judge—long since terminated in this case. Operating under the 2012 Man-
ual for Courts-Martial, the military trial judge’s ability to take any actions con-
cerning Petitioner’s sentence expired upon completion of the convening author-
ity’s action in this case. See R.C.M. 1104(a)(2) (2012 MCM).
To be clear, military trial judges are limited to exercising enumerated pow-
ers under the UCMJ and the applicable Manual for Courts-Martial to cases
still in being. Specific to Petitioner’s 2014 court-martial, the military judge was
limited to activities preceding the authentication of the record of trial. See
R.C.M. 1104 (2012 MCM).
Simply put, a military judge has no enumerated authority under any Arti-
cle of the UCMJ nor any provision of the Rules for Courts-Martial to grant
clemency.18 In sum, Senior Judge Richardson—drawing on her prior authority
as the presiding military judge in Petitioner’s court-marital—has no further
power to effect any change on Petitioner’s sentence where appellate review,
much less her authentication of the record of trial, is long since complete.
4. This Court Lacks Jurisdiction to Grant Relief
Next we consider the limits of our jurisdiction to adjudicate 18 U.S.C.
§ 3582(c) requests for “compassionate release.” First, as explained supra in re-
lation to military trial courts, no military appellate court is authorized to act
as the court of competent jurisdiction in the first instance on petitions for com-
passionate release under 18 U.S.C. § 3582(c) because that authority does not
extend to military courts. Second, with the exception of extraordinary collat-
eral appeal writs such as error coram nobis, our authority to act on a case is at
an end with completion of final appellate review. See Article 76, UCMJ; Chap-
man, 75 M.J. at 600; Sutton, 78 M.J. at 541.19

18 At the time of Petitioner’s 2014 court-martial, a military judge possessed only the

authority to recommend clemency in a case in which she presided over. See R.C.M.
1105(d)(2)(D) (2012 MCM); United States v. Weatherspoon, 44 M.J. 211, 213 (C.A.A.F.
1996) (citation omitted). The authority to grant clemency, on the other hand, was then
and remains now, vested in the convening authority in the first instance. Compare
R.C.M. 1107 (2012 MCM), with R.C.M. 1109, 1110 (Manual for Courts-Martial, United
States (2024 ed.)). Prior to the effective date of the Military Justice Act of 2016, the
“action” of the convening authority to grant or deny clemency effectively ended the trial
proceedings and transitioned the case to post-trial review. R.C.M. 1111 (2012 MCM).
Failing that, the only other authority under the UCMJ to dispense the clemency of the
sort sought here—mitigation of the remaining unexecuted portion of Petitioner’s sen-
tence to confinement—rests solely with the Secretary of the Air Force. Article 74,
UCMJ, 10 U.S.C. § 874.
19 At least four federal courts of appeals (5th, 8th, 10th, and 11th) have embraced this

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Third, even if we were to endeavor to distinguish Chapman’s and Sutton’s
interpretation of the All Writs Act as it applies to our jurisdiction over extraor-
dinary writs on collateral appeal for an already finalized appeal, Appellant’s
request for reduction of his sentence under the “extraordinary and compelling
reasons” category of 18 U.S.C. § 3582(c)(1)(A)(i) essentially amounts to a re-
quest for clemency. Substantively speaking, clemency petitions are not in aid
of our existing jurisdiction to conduct sentencing appropriateness review. Cf.
Boone, 49 M.J. at 193 (quoting Healy, 26 M.J. at 397 (holding that military
CCAs have “no duty to receive information or data that purports to be relevant
only to clemency . . . [as] the Code provides no way for bringing to the attention
of [these appellate courts] information that purportedly bears even on sentence
appropriateness”)).20
For the foregoing reasons, neither Senior Judge Richardson, nor any other
serving trial military judge, nor this court, have the authority to grant “com-
passionate release” under the provisions of 18 U.S.C. § 3582(c). In the end,

understanding of the “evanescent” nature of a creation and completion of a court-mar-
tial in ruling that the “vanishing nature” of a court-martial eliminates them as courts
of competent jurisdiction for post-trial collateral relief of the type requested here. See
Brown v. Sec’y of the U.S. Army, 859 F.App’x. 901, 901 (11th Cir. 2021); see also Prost
v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) (explaining why court-martial prison-
ers only qualify to file 18 U.S.C. § 2241 petitions (collateral appeal habeas corpus pe-
titions after completion of direct appellate review) because “due to the evanescent na-
ture of court[-]martial proceedings: the sentencing court literally dissolves after sen-
tencing and is no longer available to test a prisoner's collateral attack” (citations omit-
ted)); Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004) (“General courts-
martial are ad hoc proceedings which dissolve after the purpose for which they were
convened has been resolved. As a result, there is not a sentencing court in which a
military prisoner may bring a [28 U.S.C.] § 2255 motion.” (Citing Gillam v. Bureau of
Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *1 (8th Cir. 3 Mar. 2020) (unpub.
op.).).
20 To reach a contrary conclusion, i.e., that we are authorized to adjudicate 18 U.S.C.

§ 3582 petitions, we would be obliged to somehow interpret that clemency statute to
be “in aid of our jurisdiction” to evaluate sentence appropriateness under Article 66(d),
UCMJ—which we do not. The CAAF makes a categorical distinction between clemency
and sentence appropriateness review. Sentence appropriateness review does not in-
clude acts of clemency, and it is an abuse of discretion for CCAs to exercise it as such.
See United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); see also Nerad, 69 M.J. at
146 (citing Boone, 49 M.J. at 192 (reasoning that sentence appropriateness review “em-
powers the CCAs to ‘do justice,’ with reference to some legal standard, but does not
grant the CCAs the ability to ‘grant mercy’”)).

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Petitioner is essentially requesting clemency, which we have no authority to
grant.21
Finally, Petitioner’s two remaining requests—a recommendation for clem-
ency or parole, or to appoint him a military defense counsel and certify any
questions from this petition to the CAAF—can be easily addressed. First, we
have neither statutory nor writ-based authority to recommend parole in this
or any case. See Healy, 26 M.J. at 395–96 (“Article 66, UCMJ, 10 U.S.C. § 866,
assigns to the Courts of [Criminal Appeals] only the task of determining sen-
tence appropriateness: doing justice . . . . The responsibility for clemency, how-
ever, was placed by Congress in other hands.”).22 Further, we have no authority
under Article 70(c), UCMJ, to appoint appellate defense counsel, where such
authority is vested principally with the respective service Judge Advocates
General.23 See Chapman 75 M.J. at 600 (citation omitted). And lastly, we have
no authority to “certify” issues to the CAAF—that authority once again rests
solely with the respective service Judge Advocates General. Article 67(a)(2),
UCMJ, 10 U.S.C. § 867(a)(2).

21 We note that a more permissible venue for Petitioner’s request at this juncture may

be those entities with actual clemency authority, e.g., the Secretary of the Air Force,
pursuant to Article 74, UCMJ, 10 U.S.C. § 874, or the Air Force Board of Clemency
and Parole pursuant to Department of Defense Instruction 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole Authority (11 Mar. 2013, in-
corporating Change 4, 19 Aug. 2020).
22 This is not to say that an individual who previously served as a military judge in a

particular case could not recommend clemency to an appropriate authority after a case
became final within the meaning of Article 76, UCMJ—but that would be an individual
decision by that person. The point remains, this court has no authority to issue a writ
to a particular current or former military judge ordering them to recommend clemency
in any case whatsoever.
23 Only the CAAF can direct the service Judge Advocates General to appoint appellate

defense counsel, and for issues which the CAAF itself granted review. See United
States v. Arkness, 73 M.J. 454 (C.A.A.F. 2014); Article 70(c), UCMJ.

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III. CONCLUSION
Petitioner has not demonstrated that this court, or a military trial judge,
can grant him the relief he seeks. Accordingly, Petitioner’s “Motion for Com-
passionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A),” dated 6 August
2023, is DENIED for lack of jurisdiction.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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