Saturday, August 25, 2007

Inappropriate sentence appropriateness standard

In 2005, CAAF reversed a sentence appropriateness holding by NMCCA. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). In that case, the Navy-Marine Corps Court had written, in part: "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.' Rojas, 15 M.J. at 919." United States v. Baier, No. NMCCA 200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23, 2003) (per curiam). Wrong, ruled CAAF. That language "is legally incorrect. A Court of Criminal Appeals must determine whether it finds the sentence to be appropriate. It may not affirm a sentence that the court finds inappropriate, but not 'so disproportionate as to cry out' for reduction." In footnote 15 of its Baier opinion, CAAF also observed that the legally erroneous "language that the lower court quoted originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)."

What a surprise it was, then, to see United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980), cited in a March 2007 NMCCA opinion for the following proposition: "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. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007).

(The Ryan case, by the way, reads like an excerpt from the screenplay of A Few Good Men. Corporal Ryan was a squad leader for the Marine Security Force at Guantanamo. He was convicted of maltreating his subordinates in various ways -- perhaps inspired by the Code Red lore from the silver screen.)

CAAF wasted little time calling NMCCA's error to that court's attention. Ryan filed a petition for grant of review on 29 March 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. March 29, 2007). His counsel obtained an enlargement to file the supplement not later than 30 July 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. June 29, 2007). CAAF then turned around the case in little more than three weeks, affirming NMCCA's ruling on the findings, but setting aside its decision on the sentence. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. Aug. 23, 2007) (summary disposition). CAAF ruled: "The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)."

I don't have access to Shepard's Citations right now, but presumably a cite to Baier pops up when Shepardizing Usry. How did Usry make it into an opinion issued more than two years after Baier?


Anonymous said...

From a quick westlaw search, it appears that CAAF may have to reverse the sentence in a slew of Navy-MC CCA cases. Usry is cited for the need to "cry out for sentence equalization" in four cases after Ryan. US v. Wiest, US v. Plummer, US v. Ashby, and US v. Schweitzer. Is someone asleep at the wheel over there?

Christopher Mathews said...

Like CAAFlog, I do not have access to Shepard's at the moment, so I can't definitively say why Usry is still being relied upon, particularly at the appellate level. There are however, occasions when CAAF speaks, but no one listens.

Consider the saga of United States v. Eatmon, 47 M.J. 534 (A.F. Ct. Crim. App. 1997), aff’d, 49 M.J. 273 (C.A.A.F. 1998). In that decision, the CCA cited with favor a sentencing instruction to the effect that confinement is rehabilitative and not punitive. CAAF was silent on the instruction when it affirmed.

Requesting an Eatmon instruction quickly became a part of trial counsel's standard repertoire. Eight years later, however, CAAF concluded the instruction was in error. See United States v. Holmes, 61 M.J. 148 (C.A.A.F. 2005). But because Holmes was a summary disposition, it didn't get the notice it deserved ... and Eatmon didn't get the red stop sign it deserved, either (online, at least). It wouldn't greatly surprise me to learn that CAAF's passing mention of Usry wasn't sufficient to get the attention of the people who compile Shepard's, either.

So, even after Holmes, prosecutors continued to ask for the Eatmon instruction ... and military judges continued to give it. This persisted until the release of United States v. Brewster, 64 M.J. 501 (A.F. Ct. Crim. App. 2006). Casual afficionados of military justice may have wondered why Brewster was a published decision: the true devotees probably assumed it was entirely for the sake of the footnote explicitly overruling the portion of Eatmon dealing with the instruction.

Eatmon now has been appropriately flagged in Shepard's.

Anonymous said...

You stay classy NMCCA.