United States v. Swisher (2024)

I write separately because I respectfully disagree with the majority's conclusion that a Court of Criminal Appeals (CCA) is required to conduct a formal assessment of whether cases are closely related when a conviction in a civilian court is involved.

This Court has repeatedly recognized that the CCAs were granted their unusual sentence appropriateness powers to facilitate uniformity of sentencing within the unique structure of the military justice system.

The military justice system is highly decentralized. Military commanders stationed at diverse locations throughout the world have broad discretion to decide whether a case should be disposed of through administrative, nonjudicial, or court-martial channels. If the case results in a finding of guilty, a court-martial has discretion to impose any authorized punishment that is below the maximum for the offense. After trial, the commander who convened the court-martial has virtually unfettered discretion, as a matter of command prerogative, to modify the sentence in whole or in part, so long as the severity is not increased.

Congress, recognizing that the decentralized exercise of such broad discretion is likely to produce disparate results, has provided the Courts of Criminal Appeals not only with the highly discretionary power to determine whether a sentence is correct in law and fact, but also with the highly discretionary power to determine whether a sentence “should be approved.” ․

Under Article 66(c), Congress has furthered the goal of uniformity in sentencing in a system that values individualized punishment by relying on the judges of the Courts of Criminal Appeals to

utilize the experience distilled from years of practice in military law to determine whether, in light of the facts surrounding [the] accused's delict, his sentence was appropriate. In short, it was hoped to attain relative uniformity rather than an arithmetically averaged sentence.

United States v. Lacy, 50 M.J. 286, 287 (C.A.A.F. 1999) (alteration in original) (citations omitted); see also United States v. Boone, 49 M.J. 187, 191-92 (C.A.A.F. 1998) (noting that, after World War II, when Congress decided “to improve the administration of justice in the Armed Forces of the United States,” it recognized a need to establish appellate courts that “would have the high responsibility of ensuring uniformity and evenhandedness, values that could not be assured if final decision making were left at the local command level”); United States v. Henry, 42 M.J. 231, 234 (C.A.A.F. 1995) (agreeing with the appellant's assertion that, when Congress enacted Article 66, Uniform Code of Military Justice (UCMJ), it intended to establish uniformity of sentencing throughout the armed forces. “The Board [of Review] may set aside, on the basis of the record, any part of a sentence either because it is illegal or because it is inappropriate. It is contemplated that this power will be exercised to establish uniformity of sentences throughout the armed forces.” (alteration in original) (internal quotation marks omitted) (quoting H.R. Rep. No. 491 (1949)); United States v. Olinger, 12 M.J. 458, 460 (C.M.A. 1982) (recognizing that, in enacting the UCMJ, “Congress gave the Boards of Review the power to ‘set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate,’ ” and that this power was granted in order to establish uniformity of sentences (citation omitted)).

This Court has also emphasized that sentence appropriateness review at the appellate level is unique to the military justice system. There simply is no civilian analog. “Article 66(c) of the UCMJ, 10 U.S.C. § 866, provides the Courts of Criminal Appeals with broad discretion to determine whether a sentence ‘should be approved,’ a power that has no direct parallel in the federal civilian sector.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001). “The power to determine whether a sentence should be approved has no direct parallel in the federal civilian sector, which relies on sentencing guidelines.” Lacy, 50 M.J. at 287-88. The overarching goal was to ensure that military members were treated similarly to one another, not similarly to their civilian counterparts. As recognized by the Supreme Court in Parker v. Levy, “[t]he differences ․ first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code.” 417 U.S. 733, 749 (1974).

Up to now, there has been no requirement that CCAs compare military and civilian sentences and, given the overarching purpose of the sentence appropriateness review power, I see no reason to impose such a requirement now.

In general, “neither Article 66[(d)(1)] nor our precedents requires [the CCAs] to engage in a sentence comparison with specific cases.” United States v. Behunin, 83 M.J. 158, 161-62 (C.A.A.F. 2023) (alterations in original) (internal quotation marks omitted) (quoting United States v. Noble, 50 M.J. 293, 294 (C.A.A.F. 1999)). The lower courts are only required to conduct a sentence comparison between specific cases “in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.” Lacy, 50 M.J. at 288 (internal quotation marks omitted) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Mr. Simmons was tried and convicted within the civilian court system of the state of South Carolina. Nothing in our case law or Article 66, UCMJ, at all suggests that the lower courts need to ensure that there is uniformity in sentencing between the military and that state, or any state. The two systems and societies are too different to directly compare. Civilian prosecutors pursue different interests than military commanders. A civilian prosecutor may choose to dispose of a case for any number of reasons, not the least of which might be mere efficiency. Most notably, there is no parallel in the civilian courts to the commander's need to preserve good order and discipline.

In Sothen, this Court determined that Article 66, UCMJ, “does not preclude consideration of cases involving military and civilian co-actors.” 54 M.J. at 297. However, not precluding, or preventing, review is not the same thing as requiring it. Sothen does not establish that a CCA must conduct a comparison between military and civilian cases when undertaking a sentence appropriateness review, even if they involve the same crime. Our existing law is clear. The lower courts may compare the sentences of civilian and military defendants if they choose to, but they are not required to do so.

In addition, I question the premise that the lower courts are obligated to compare military to civilian sentences simply because the defendants were coactors. Lacy offers three examples of potentially closely related cases, “e.g., coactors involved in a common crime, servicemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” 50 M.J. at 288. However, the language used in the opinion indicates these were not meant as strict categories but rather circumstances that could result in closely related cases. The abbreviation “e.g.” means “for example.” Merriam-Webster Dictionary, https://www.meriam-webster.com/dictionary/e.g. (last visited July 2, 2024). The phrasing used in the third example also suggests the list only contemplated situations in which both cases involved servicemembers—“some other direct nexus between servicemembers”—and not a comparison with civilian defendants; see also Behunin, 83 M.J. at 162 (interpreting the first example in Lacy as requiring that “the servicemembers were coactors involved in a common crime” (emphasis added) (citation omitted) (internal quotation marks omitted)).

Sentence appropriateness review is a power exclusive to the CCAs and this Court should not intervene unless absolutely necessary. Hence the high standard of review, limiting this Court to preventing “obvious miscarriages of justice or abuses of discretion.” Lacy, 50 M.J. at 288 (internal quotation marks omitted) (quoting United States v. Dukes, 5 M.J. 71, 73 (C.M.A. 1978)). In addition, in Lacy, this Court explicitly stated that “we have not required the courts below to articulate their reasons” for determinations, including whether cases are comparable, “and do not do so today.” Id. Here, the lower court was not completely silent as to why it chose not to conduct a formal sentence appropriateness review. It noted that Mr. Simmons's “sentence was for different crimes and was adjudicated by a civilian jurisdiction.” United States v. Swisher, No. NMCCA 202100311, 2023 CCA LEXIS 339, at *26, 2023 WL 5274010, at *9 (N-M. Ct. Crim. App. Aug. 16, 2023) (en banc) (unpublished). The CCA's informal recognition of these key distinguishing factors was not an obvious miscarriage of justice or abuse of discretion. Neither our case law nor the original intent behind sentence appropriateness review require any sentence comparison when a civilian defendant is involved. Given the historical foundations of the lower courts’ sentence appropriateness powers, I am hard pressed to understand how requiring them to engage in a formal, closely related analysis in this context furthers the goal of evenhandedness and sentence consistency within the military justice system. Therefore, I respectfully dissent.

Judge SPARKS, dissenting.