U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________
No. ACM 39253 ________________________
UNITED STATES Appellee v. Christian R. FLORES Airman First Class (E-3), U.S. Air Force, Appellant ________________________
Appeal from the United States Air Force Trial Judiciary Decided 13 September 2018 ________________________
Military Judge: Brian D. Teter. Approved sentence: Dishonorable discharge, confinement for 7 years, forfeiture of all pay and allowances, and reduction to E-1. Sentence ad- judged 20 March 2017 by GCM convened at the United States Air Force Academy, Colorado. For Appellant: Major Patrick A. Clary, USAF; Major Jarett F. Merk, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire. Before HARDING, HUYGEN, and POSCH, Appellate Military Judges. Senior Judge HARDING delivered the opinion of the court, in which Judges HUYGEN and POSCH joined. ________________________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________
HARDING, Senior Judge: A military judge sitting as a general court-martial convicted Appellant, con- sistent with his pleas made pursuant to a pretrial agreement (PTA), of two United States v. Flores, No. ACM 39253
specifications of conspiracy, five specifications involving controlled substances, two specifications of assault consummated by a battery, and one specification of housebreaking in violation of Articles 81, 112a, 128, and 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a, 928, 930. The military judge sentenced Appellant to a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority, consistent with the limitation of the PTA, approved only seven years of confinement, but otherwise approved the sentence as ad- judged. Appellant raises a single issue 1 on appeal: whether Appellant is entitled to sentence relief because confinement officials at the Navy Consolidated Brig at Charleston, South Carolina, have ignored his allergy to wool and refused to issue him a blanket made of a material other than wool. We find no prejudicial error and affirm.
I. BACKGROUND A random urinalysis sample provided by Appellant on 15 September 2015 tested positive for cocaine and resulted in an investigation that established Appellant used and distributed both cocaine and psilocybin mushrooms, con- spired with civilians to distribute cocaine, and possessed oxycodone pills with the intent to distribute them. On 2 November 2015, investigators were notified of domestic violence offenses committed by Appellant. Specifically, Appellant assaulted his wife on divers occasions by pushing her to the ground and strik- ing her on the face. On 13 December 2015, investigators learned that Appellant had been admitted to a local hospital for a gunshot wound. Appellant had con- spired with others to steal drugs and cash from a local cocaine distributor, MB, in his home. After his co-conspirator kicked open the door of MB’s home, Ap- pellant entered armed with a shotgun. MB, armed with a rifle, shot Appellant in the hip and Appellant’s co-conspirator in the torso. Appellant was ordered into pretrial confinement on 9 August 2016 and re- mained in that status until the day his sentence was adjudged on 20 March 2017. While in pretrial confinement status, Appellant was confined at a civil- ian facility in Teller County, Colorado; a military confinement facility at Fran- cis E. Warren Air Force Base, Wyoming; and the Naval Consolidated Brig at Miramar, California. 2 Although Appellant waived his right to request relief for
1 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 After his trial, Appellant was transferred to the Navy Consolidated Brig at Charles- ton, South Carolina.
2 United States v. Flores, No. ACM 39253
alleged violations of Article 13, UCMJ, 10 U.S.C. § 813, related to the condi- tions of his pretrial confinement, Appellant raised his treatment while in pre- trial confinement as a matter in mitigation at sentencing. Appellant did not, however, make any reference during his sentencing case to an issue with wool blankets. In his clemency submission, Appellant focused on the effects confine- ment had on him with an emphasis on his suicidal ideations and gestures. As in his sentencing case, he did not raise an issue with wool blankets. Now on appeal, Appellant makes the assertion that “[d]uring [his] time in confinement [he has] not had any blankets due to a wool allergy.” As to the matter before us—whether actions or inactions of officials at the Navy Consol- idated Brig at Charleston, South Carolina, regarding the conditions of post- trial confinement provide a basis for relief—Appellant asserts the same issue he experienced in pretrial confinement concerning his allergy to issued wool blankets has continued into post-trial confinement. After my court martial [sic] in March in 2017 I was sent to NavConBrig Charleston [sic] I informed the intake personnel about my allergy and was told to talk to medical. After medical did nothing for my issue and denied me the ability to have blan- kets bought out of my personal funds [sic] I spoke to the CO at the time and was told that he personally would take care of the issue. Again nothing came of this and after speaking to my law- yer I sent a DD-510 to the Air Force Liaison requesting to file an official complaint [sic] still to this day one month later I have no response. Appellant attached the referenced Department of Defense Form 510, Pris- oner Request (Mar. 2013), to his declaration to this court. However, the form does not specify an issue with denial of blankets and is not marked as a griev- ance. All Appellant wrote on the form is “Respectfully request a meeting to file a [sic] official complaint [sic] thank you.”
II. DISCUSSION Appellant argues that “[a] blanket is a basic necessity and denial of such a necessity is both inhumane and cruel” and that by “[i]gnoring Appellant’s al- lergic reactions and forcing him to choose between continually suffering those allergic reactions or risk dangerously dropping his core temperature,” the con- finement officials inflicted unnecessary and wanton pain prohibited by both
3 United States v. Flores, No. ACM 39253
the Eighth Amendment to the United States Constitution 3 and Article 55, UCMJ, 10 U.S.C. § 855. We conclude that, even if the facts as asserted by Ap- pellant are true, he failed to meet his burden of establishing grounds for relief. 4 We review de novo whether the facts alleged establish cruel and unusual punishment. United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (citation omitted). Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual punishment. In general, we apply “the Supreme Court’s interpre- tation of the Eighth Amendment to claims raised under Article 55, [UCMJ,] except in circumstances where . . . legislative intent to provide greater protec- tions under [Article 55, UCMJ,]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000). “[T]he Eighth Amendment prohibits two types of pun- ishments: (1) those ‘incompatible with the evolving standards of decency that mark the progress of a maturing society’ or (2) those ‘which involve the unnec- essary and wanton infliction of pain.’” Lovett, 63 M.J. at 215 (quoting Estelle v. Gamble,
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U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________
No. ACM 39253 ________________________
UNITED STATES Appellee v. Christian R. FLORES Airman First Class (E-3), U.S. Air Force, Appellant ________________________
Appeal from the United States Air Force Trial Judiciary Decided 13 September 2018 ________________________
Military Judge: Brian D. Teter. Approved sentence: Dishonorable discharge, confinement for 7 years, forfeiture of all pay and allowances, and reduction to E-1. Sentence ad- judged 20 March 2017 by GCM convened at the United States Air Force Academy, Colorado. For Appellant: Major Patrick A. Clary, USAF; Major Jarett F. Merk, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire. Before HARDING, HUYGEN, and POSCH, Appellate Military Judges. Senior Judge HARDING delivered the opinion of the court, in which Judges HUYGEN and POSCH joined. ________________________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________
HARDING, Senior Judge: A military judge sitting as a general court-martial convicted Appellant, con- sistent with his pleas made pursuant to a pretrial agreement (PTA), of two United States v. Flores, No. ACM 39253
specifications of conspiracy, five specifications involving controlled substances, two specifications of assault consummated by a battery, and one specification of housebreaking in violation of Articles 81, 112a, 128, and 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a, 928, 930. The military judge sentenced Appellant to a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority, consistent with the limitation of the PTA, approved only seven years of confinement, but otherwise approved the sentence as ad- judged. Appellant raises a single issue 1 on appeal: whether Appellant is entitled to sentence relief because confinement officials at the Navy Consolidated Brig at Charleston, South Carolina, have ignored his allergy to wool and refused to issue him a blanket made of a material other than wool. We find no prejudicial error and affirm.
I. BACKGROUND A random urinalysis sample provided by Appellant on 15 September 2015 tested positive for cocaine and resulted in an investigation that established Appellant used and distributed both cocaine and psilocybin mushrooms, con- spired with civilians to distribute cocaine, and possessed oxycodone pills with the intent to distribute them. On 2 November 2015, investigators were notified of domestic violence offenses committed by Appellant. Specifically, Appellant assaulted his wife on divers occasions by pushing her to the ground and strik- ing her on the face. On 13 December 2015, investigators learned that Appellant had been admitted to a local hospital for a gunshot wound. Appellant had con- spired with others to steal drugs and cash from a local cocaine distributor, MB, in his home. After his co-conspirator kicked open the door of MB’s home, Ap- pellant entered armed with a shotgun. MB, armed with a rifle, shot Appellant in the hip and Appellant’s co-conspirator in the torso. Appellant was ordered into pretrial confinement on 9 August 2016 and re- mained in that status until the day his sentence was adjudged on 20 March 2017. While in pretrial confinement status, Appellant was confined at a civil- ian facility in Teller County, Colorado; a military confinement facility at Fran- cis E. Warren Air Force Base, Wyoming; and the Naval Consolidated Brig at Miramar, California. 2 Although Appellant waived his right to request relief for
1 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 After his trial, Appellant was transferred to the Navy Consolidated Brig at Charles- ton, South Carolina.
2 United States v. Flores, No. ACM 39253
alleged violations of Article 13, UCMJ, 10 U.S.C. § 813, related to the condi- tions of his pretrial confinement, Appellant raised his treatment while in pre- trial confinement as a matter in mitigation at sentencing. Appellant did not, however, make any reference during his sentencing case to an issue with wool blankets. In his clemency submission, Appellant focused on the effects confine- ment had on him with an emphasis on his suicidal ideations and gestures. As in his sentencing case, he did not raise an issue with wool blankets. Now on appeal, Appellant makes the assertion that “[d]uring [his] time in confinement [he has] not had any blankets due to a wool allergy.” As to the matter before us—whether actions or inactions of officials at the Navy Consol- idated Brig at Charleston, South Carolina, regarding the conditions of post- trial confinement provide a basis for relief—Appellant asserts the same issue he experienced in pretrial confinement concerning his allergy to issued wool blankets has continued into post-trial confinement. After my court martial [sic] in March in 2017 I was sent to NavConBrig Charleston [sic] I informed the intake personnel about my allergy and was told to talk to medical. After medical did nothing for my issue and denied me the ability to have blan- kets bought out of my personal funds [sic] I spoke to the CO at the time and was told that he personally would take care of the issue. Again nothing came of this and after speaking to my law- yer I sent a DD-510 to the Air Force Liaison requesting to file an official complaint [sic] still to this day one month later I have no response. Appellant attached the referenced Department of Defense Form 510, Pris- oner Request (Mar. 2013), to his declaration to this court. However, the form does not specify an issue with denial of blankets and is not marked as a griev- ance. All Appellant wrote on the form is “Respectfully request a meeting to file a [sic] official complaint [sic] thank you.”
II. DISCUSSION Appellant argues that “[a] blanket is a basic necessity and denial of such a necessity is both inhumane and cruel” and that by “[i]gnoring Appellant’s al- lergic reactions and forcing him to choose between continually suffering those allergic reactions or risk dangerously dropping his core temperature,” the con- finement officials inflicted unnecessary and wanton pain prohibited by both
3 United States v. Flores, No. ACM 39253
the Eighth Amendment to the United States Constitution 3 and Article 55, UCMJ, 10 U.S.C. § 855. We conclude that, even if the facts as asserted by Ap- pellant are true, he failed to meet his burden of establishing grounds for relief. 4 We review de novo whether the facts alleged establish cruel and unusual punishment. United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (citation omitted). Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual punishment. In general, we apply “the Supreme Court’s interpre- tation of the Eighth Amendment to claims raised under Article 55, [UCMJ,] except in circumstances where . . . legislative intent to provide greater protec- tions under [Article 55, UCMJ,]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000). “[T]he Eighth Amendment prohibits two types of pun- ishments: (1) those ‘incompatible with the evolving standards of decency that mark the progress of a maturing society’ or (2) those ‘which involve the unnec- essary and wanton infliction of pain.’” Lovett, 63 M.J. at 215 (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). A violation of the Eighth Amendment is shown by demonstrating: (1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to [Appellant’s] health and safety; and (3) that [Appellant] “has ex- hausted the prisoner-grievance system . . . and that he has peti- tioned for relief under Article 138, UCMJ, 10 U.S.C. § 938 [2000].” Lovett, 63 M.J. at 215 (third alteration in original) (internal footnotes omitted) (citation omitted). The Court of Appeals for the Armed Forces emphasized, “[a] prisoner must seek administrative relief prior to invoking judicial intervention to redress con- cerns regarding post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007) (citing United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). “This requirement ‘promot[es] resolution of grievances at the lowest possible level [and ensures] that an adequate record has been developed [to aid appellate review].’” Id. at 471 (alterations in original) (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). Except under some unusual
3 U.S. CONST. amend. VIII. 4 Having applied the decisional framework announced in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), and considered the entire record, we find we can resolve the issues raised by Appellant without additional factfinding. See United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004).
4 United States v. Flores, No. ACM 39253
or egregious circumstance, an appellant must demonstrate he or she has ex- hausted the prisoner grievance process provided by the confinement facility and has petitioned for relief under Article 138, UCMJ. White, 54 M.J. at 472 (citation omitted). Appellant has neither exhausted the prisoner-grievance system nor peti- tioned for relief under Article 138, UCMJ. All Appellant has demonstrated is that he requested a meeting to file a complaint. Accordingly, we conclude that Appellant does not warrant relief under the Eighth Amendment or Article 55, UCMJ. We also consider whether we should exercise our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide sentence relief for the conditions complained of by Appellant. Under Article 66(c), UCMJ, we have broad author- ity and the mandate to approve only so much of the sentence as we find appro- priate in law and fact and may therefore grant sentence relief even without finding an Eighth Amendment or Article 55, UCMJ, violation. United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015), aff'd, United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016); see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). When this court considers judicial relief under Article 66(c), UCMJ, for conditions of post-trial confinement, we have not strictly required an appellant to demonstrate that he has, absent unusual or egregious circum- stances, previously exhausted administrative remedies. See United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS 376, at *13–14 (A.F. Ct. Crim. App. 30 May 2017) (unpub. op.). We instead consider the entire record and typically give “significant weight” to an appellant’s failure to seek administrative relief prior to invoking judicial intervention, while recognizing the limits of our au- thority. United States v. Bailey, No. ACM S32389, 2017 CCA LEXIS 604, at *11 (A.F. Ct. Crim. App. 11 Sep. 2017) (unpub. op.). After considering the facts and circumstances in the present case, we de- cline to provide sentence relief under Article 66(c), UCMJ. As this court ob- served in United States v. Ferrando, While we have granted sentence relief based upon conditions of post-trial confinement where a legal deficiency existed, we are not a clearing house for post-trial confinement complaints or grievances. Only in very rare circumstances do we anticipate granting sentence relief when there is no violation of the Eighth Amendment or Article 55, UCMJ. 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omitted). This case does not present those very rare circumstances.
5 United States v. Flores, No. ACM 39253
III. CONCLUSION The approved findings are correct in law and fact, the sentence is not inap- propriate, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accord- ingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE Clerk of the Court