UNITED STATES v. SWISHER (2024)

We granted review in this case to determine whether the United States Navy-Marine Corps Court of Criminal Appeals (CCA) abused its discretion when performing its sentence appropriateness review under Article 66(d)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(d)(1) (2018). Specifically, we must determine whether the lower court misapprehended the law when, in the course of conducting a sentence appropriateness review, it “decline[d] to compare” a civilian coactor's sentence with Appellant's sentence. United States v. Swisher, No. NMCCA 202100311, 2023 CCA LEXIS 339, at *25-26, 2023 WL 5274010, at *9 (N-M. Ct. Crim. App. Aug. 16, 2023) (en banc) (unpublished). We hold that the CCA did abuse its discretion because it did not decide whether the cases were closely related as required under applicable precedent. Accordingly, the CCA decision is reversed as to sentence and the case is remanded for a new sentence appropriateness review.

I. Background

On December 1, 2019, in Myrtle Beach, South Carolina, Appellant and a civilian, Mr. Simmons, sexually assaulted the same young woman at the same time and in the same manner. Ultimately, the perpetrators were held criminally responsible for their misconduct—Mr. Simmons in state court and Appellant in the military justice system.

Mr. Simmons agreed to plead guilty in South Carolina state court to criminal sexual conduct in the third degree in exchange for a recommended sentence of probation with sex offender registration. 1 Following this plea, the state court sentenced Mr. Simmons to a five-year suspended prison sentence and probation for three years.

Appellant, in contrast, contested his charges of one specification of attempted sexual assault, one specification of wrongful use of cocaine, two specifications of sexual assault, and two specifications of aiding and abetting sexual assault, in violation of Articles 80, 112a, and 120, UCMJ, 10 U.S.C. §§ 880, 912a, 920 (2018). 2 At a general court-martial with enlisted representation, Mr. Simmons testified for the Government against Appellant, who was convicted of all specifications except for the aiding and abetting sexual assault specifications. After electing military judge sentencing, Appellant received a sentence of a dishonorable discharge, confinement for fifty-four months, and reduction to E-1. 3 The convening authority took no action on the sentence and the military judge then entered judgment.

On appeal, the CCA initially affirmed the findings and sentence. See Swisher, 2023 CCA LEXIS 339, at *2, 2023 WL 5274010, at *1. However, the CCA subsequently granted Appellant's motion for en banc reconsideration and withdrew its prior decision. See id. at *3, 2023 WL 5274010, at *1. Upon en banc review, the CCA set aside and dismissed with prejudice the attempted sexual assault specification for failure to state an offense, affirmed the remaining findings, and affirmed the sentence after reassessment. Id. at *26-27, 2023 WL 5274010, at *10.

When conducting its appellate review, the CCA rejected Appellant's argument that his sentence was “highly disparate when compared to the sentence awarded to his alleged co-actor.” Brief for Appellant at 97, United States v. Swisher, No. NMCCA 202100311 (N-M. Ct. Crim. App. May 11, 2022). Specifically, the lower court stated: “We decline to compare Mr. [Simmons's] case with Appellant's sentence for an analysis of appropriateness” because “[Mr. Simmons's] sentence was for different crimes and was adjudicated by a civilian jurisdiction.” Swisher, 2023 CCA LEXIS 339, at *25-26, 2023 WL 5274010, at *9. The CCA further stated that it was “unaware of any precedent that requires us to find parity between a military court-martial sentence and a sentence awarded by a state or local jurisdiction.” Id. at *26, 2023 WL 5274010, at *9. In a footnote, the CCA explained:

In his motion for en banc reconsideration, Appellant takes issue with this conclusion and cites United States v. Sothen, 54 M.J. 294 (C.A.A.F. 2001) and United States v. Behunin, 83 M.J. 158 (C.A.A.F. 2023) for the proposition that we are required to compare a court-martial sentence with a sentence awarded by a state or local jurisdiction in closely related cases. ․ We disagree. While our Court in Sothen chose to compare appellant's court-martial conviction with his co-conspirator's state court conviction, there was no requirement to do so. Appellant's reliance on dicta in Sothen and a single footnote in Behunin, 83 M.J. at 158 n.2 (which in turn cites back to Sothen) does not support his argument.

Id. at *26 n.73, 2023 WL 5274010, at *9 n.73.

We then granted review of the following issue:

Did the lower court err by applying the wrong legal standard to its sentence appropriateness analysis?

United States v. Swisher, 84 M.J. 169 (C.A.A.F. 2023) (order granting review). As will be explained, we answer the granted issue in the affirmative and remand for further proceedings.

II. Standard of Review

“ ‘Our review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage[ ] of justice or abuse[ ] of discretion.’ ” United States v. Behunin, 83 M.J. 158, 161 (C.A.A.F. 2023) (alterations in original) (internal quotation marks omitted) (quoting United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)). There is an abuse of discretion, in relevant part, when a “court's decision is influenced by an erroneous view of the law.” Id. (internal quotation marks omitted) (quoting United States v. Ayala, 81 M.J. 25, 27-28 (C.A.A.F. 2021)).

III. Analysis

Article 66(d)(1) provides, in part, that CCAs “may 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.” This language empowers the CCAs to review cases for sentence appropriateness. See Sothen, 54 M.J. at 296. “[A CCA's] power to review a case for sentence appropriateness ․ includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.” Id.

The CCAs typically have “discretion to consider and compare” other “sentences when [they are] reviewing a case for sentence appropriateness and relative uniformity.” United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001). As we have stated, “generally speaking ‘neither Article 66[(d)(1)] nor our precedents requires [the CCAs] to engage in sentence comparison with specific cases.’ ” Behunin, 83 M.J. at 161-62 (alterations in original) (quoting United States v. Noble, 50 M.J. 293, 294 (C.A.A.F. 1999)). Importantly, however, “this general rule is subject to one exception—the CCAs ‘are required to engage in sentence comparison ․ in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’ ” Id. at 162 (alteration in original) (quoting Sothen, 54 M.J. at 296). 4

It is in this context that our Court has spelled out the analytical approach a CCA must employ when confronted with a claim that the sentences in two cases are disparate. As we held in United States v. Lacy:

At a Court of Criminal Appeals, an appellant bears the burden of demonstrating that any cited cases are “closely related” to his or her case and that the sentences are “highly disparate.” If the appellant meets that burden, or if the court raises the issue on its own motion, then the Government must show that there is a rational basis for the disparity.

50 M.J. 286, 288 (C.A.A.F. 1999). As can be seen then, in a case such as the one presented here, our precedent requires a CCA to decide at the outset of its analysis whether an appellant has borne the burden of showing that the appellant's case and another case are “closely related.” 5 And yet, the CCA did not do so here.

In declining to compare the two cases, the lower court cited the fact that Mr. Simmons's sentence was “adjudicated by a civilian jurisdiction.” Swisher, 2023 CCA LEXIS 339, at *26, 2023 WL 5274010, at *9. However, the mere fact that the sentence in Appellant's case was the product of a court-martial proceeding and the sentence in Mr. Simmons's case was the product of a civilian criminal proceeding is not necessarily dispositive of the issue of whether the two cases are “closely related.” We have made it clear that civilian sentences may serve as a basis for sentence comparison. Sothen, 54 M.J. at 296-97. (Nothing “preclude[s] consideration of cases involving military and civilian co-actors.” Id. at 297. 6) Thus, when a CCA confronts the issue of whether the sentence in a court-martial case is inappropriate in the light of a sentence imposed in a civilian case, that court must conduct an initial assessment of whether the cases are closely related. Therefore, because the CCA did not decide whether Appellant's case and Mr. Simmons's case were closely related, we conclude that the lower court abused its discretion because its decision was “influenced by an erroneous view of the law.” Ayala, 81 M.J. at 27-28 (citation omitted) (internal quotation marks omitted).

Having determined that the CCA abused its discretion, we now must decide what remedy should be afforded Appellant. For the reasons stated below, we conclude that the correct approach is for us to remand this case to the lower court so that it may perform another sentence appropriateness review.

First, under similar circumstances, we remanded a case in the past. See United States v. Baier, 60 M.J. 382, 385 (C.A.A.F. 2005) (remanding case for a new Article 66 sentence appropriateness review “using the correct standard”). Second, the authority to conduct a sentence appropriateness review lies squarely with the CCAs rather than with this Court. Third, both parties agree that a remand is the appropriate remedy. At oral argument Appellant asked for this Court “to remand [the case] back to the Navy-Marine Corps Court of Criminal Appeals for consideration.” Oral Argument at 8:29-35, United States v. Swisher (C.A.A.F. Apr. 17, 2024) (No. 24-0011). Similarly, the Government's brief states, “If this Court finds that the lower courts have no discretion to decline to determine if a civilian conviction is ‘closely related,’ it should remand to the lower court for a new sentence appropriateness analysis.” Brief for Appellee at 25, United States v. Swisher, No. 24-0011 (C.A.A.F. Mar. 18, 2024); see also Oral Argument at 30:50-31:00 (stating that if this Court disagrees that the case should be affirmed, “the appropriate remedy would be to remand the case for the CCA to exercise its Article 66 discretionary review”). In light of these points, we deem a remand of this case to be the proper result. 7

IV. Conclusion

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and set aside as to sentence. The record is returned to the Judge Advocate General of the Navy for remand to the lower court for a new sentence appropriateness review consistent with this opinion.

FOOTNOTES

1.   Criminal sexual conduct in the third degree is a felony with a maximum punishment of ten years, and it is defined as follows:(1) A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:․(b) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery.S.C. Code Ann. § 16-3-654(1)(b) (2015). A sexual battery means, in relevant part, “sexual intercourse, cunnilingus, [or] fellatio.” S.C. Code Ann. § 16-3-651(h) (2015).

2.   The Article 120(b)(3)(A) offense of sexual assault occurs when a servicemember “commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to ․ impairment by any ․ intoxicant ․ and that condition is known or reasonably should be known by the person.” The maximum punishment for this offense is “[f]orfeiture of all pay and allowances ․ and confinement for 30 years” and includes a mandatory minimum of a dishonorable discharge. Manual for Courts-Martial, United States pt. IV, para. 60.d.(2) (2019 ed.).

3.   The military judge merged the Article 80 and the Article 120 charges because of unreasonable multiplication of charges, and for this merged offense, the military judge sentenced Appellant to fifty-four months of confinement. For the wrongful use of cocaine offense, the military judge sentenced Appellant to two months of confinement. The military judge directed that these sentences of confinement run concurrently.

4.   Neither party has challenged this holding as articulated in Behunin and Sothen, and thus it remains binding precedent.

5.   If the cases are closely related, the CCA must then proceed to determine whether the appellant has shown that the sentences imposed in each case are highly disparate, and if so, whether there was a rational basis for this disparity. Lacy, 50 M.J. at 288.

6.   Nevertheless, the fact that a closely related case involved a civilian conviction and sentence rather than a military conviction and sentence may be weighed when determining whether the sentences were truly disparate and/or whether there was a rational basis for the disparity.

7.   In remanding this case, we are mindful of the fact that, as noted by Appellant: (a) we have held that “cases are closely related if they fit within at least one of ․ three categories,” and one of those categories is when the individuals were “ ‘coactors involved in a common crime,’ ” Behunin, 83 M.J. at 162 (quoting Lacy, 50 M.J. at 288); and (b) in its brief before this Court, the Government concedes that “Appellant and Mr. Simmons [were] co-actors here.” Brief for Appellee at 23. However, we underscore that CCAs have “broad discretion” to decide whether individuals are coactors, Behunin, 83 M.J. at 162, that courts of appeal are not compelled to accede to the concessions of a party, United States v. Budka, 74 M.J. 219, 220 (C.A.A.F. 2015) (summary disposition), and that such a determination is necessarily fact driven. Under these circumstances, we conclude that it is inappropriate for us to evaluate in the first instance the question of whether the two cases are closely related.

Chief Judge OHLSON delivered the opinion of the Court.

Chief Judge OHLSON delivered the opinion of the Court, in which Judge MAGGS, Judge HARDY, and Judge JOHNSON joined. Judge SPARKS filed a separate dissenting opinion.