Mauled by Baier

For the third time since August, CAAF on Friday reversed NMCCA's affirmance of a sentence for using a legally erroneous sentence appropriateness standard. United States v. King, __ M.J. ___, No. 07-0567/MC (C.A.A.F. Jan. 25, 2008). Here is a link to the NMCCA opinion that CAAF reversed in part. United States v. King, No. NMCCA 200500797 (N-M. Ct. Crim. App. Mar. 20, 2007) (per curiam). (The other two opinions were United States v. Mitchell, 65 M.J. 339 (C.A.A.F. 2007) (summary disposition), which we discussed here, and United States v. Ryan, 65 M.J. 328 (C.A.A.F. 2007) (summary disposition), which we discussed here.)

But here's the really odd thing about King: it actually cites the CAAF case that it violates. (Mitchell does as well, but Ryan doesn't.) In United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005), CAAF thwacked NMCCA for applying a legally erroneous sentence appropriateness standard. Here's what NMCCA had said in its Baier opinion: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.'" (quoting United States v. Rojas, 15 M.J. 902, 919 (N.M.C.M.R. 1983)). CAAF also noted that this incorrect language "originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)." Baier, 60 M.J. at 384 n.15.

Yet, in the space of 9 lines, NMCCA's King opinion quoted the very language that Baier rejected, cited Usry, and cited CAAF's opinion in Baier. Here, look:

A sentence should not be disturbed on appeal “unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.” United States v. Usry, 9 M.J. 701, 704 (N.C.M.R 1980).

After carefully reviewing the entire record, including the testimony of the victims and witnesses, and evidence of the injuries inflicted by the appellant, as well as the appellant’s military record, we conclude that the sentence, including a dishonorable discharge, is appropriate for this offender and his offense. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).

King, No. NMCCA 200500797, slip op. at 4.

To quote OMC, how bizarre. Or, to quote CAAF, "the decision of the United States Navy-Marine Corps Court of Criminal Appeals is . . . set aside as to sentence."