United States v. Kelly

• Court: Court of Appeals for the Armed Forces
• Decided: May 23, 2018
• Docket: 17-0559/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Eric F. KELLY, Sergeant United States Army, Appellant No. 17-0559 Crim. App. No. 20150725 Argued March 22, 2018—Decided May 23, 2018 Military Judge: David H. Robertson For Appellant: Zachary Spilman, Esq. (argued); Lieutenant Colonel Christopher D. Carrier (on brief); Captain Oluwaseye Awoniyi. For Appellee: Captain Joshua B. Banister (argued); Lieu- tenant Colonel Eric K. Stafford and Captain Austin L. Fenwick (on brief); Major Virginia H. Tinsley. Amicus Curiae for the Air Force Appellate Defense Divi- sion: Colonel Jane E. Boomer, USAF and Brian L. Mizer, Esq. (in support of Appellant’s petition for grant of review). Amicus Curiae for the Navy-Marine Corps Appellate De- fense Division: Captain Andrew R. House, JAGC, USN (in support of Appellant’s petition for grant of review). Chief Judge STUCKY delivered the opinion of the Court, in which Judges RYAN, OHLSON, SPARKS, and MAGGS, joined. _______________

Chief Judge STUCKY delivered the opinion of the Court.

Today, we reconcile two Uniform Code of Military Justice (UCMJ) provisions that, at first blush, are seemingly at odds: Article 56(b), UCMJ, 10 U.S.C. § 856(b) (2012 & Supp. I 2014), which mandates that an accused convicted of certain offenses be punished with a dismissal or dishonorable discharge, and Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012), which vests the Courts of Criminal Appeals (CCAs) with broad discretionary power to review sentence appropriateness. United States v. Kelly, No. 17-0559/AR Opinion of the Court

On appeal below, the United States Army Court of Criminal Appeals (ACCA) held that it lacked the authority to reduce a mandatory minimum sentence. We disagree. Given the unrivaled statutory powers of the CCAs, we hold that Article 56(b), UCMJ, does not restrict a CCA’s ability to review a mandatory minimum sentence for sentence appropriateness.1 I. Background and Procedural History

Appellant’s convictions stem from a single night in De- cember 2014, when Appellant fondled Sergeant RK’s breast while she slept and proceeded to have sex with her despite her resistance. For this conduct, a panel of members with enlisted rep- resentation convicted Appellant, contrary to his pleas, of one specification of abusive sexual contact and one specification of sexual assault in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The panel sentenced Appellant to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the lowest enlist- ed grade. The convening authority approved the adjudged sentence but suspended the adjudged forfeitures and waived automatic forfeitures for two months and seven days for the benefit of Appellant’s dependents. On appeal before the ACCA, Appellant argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe. Regarding itself as powerless to pro- vide relief in the face of an applicable mandatory minimum sentence, the en banc ACCA, in a sharply divided 6-4 vote,

1 After we granted review of the assigned issue, this Court fur-

ther specified the issue of whether the ACCA appropriately ap- plied waiver rather than forfeiture when Appellant failed to object to improper argument. United States v. Kelly, 77 M.J. 137 (C.A.A.F. 2017) (order granting review). The issue has recently been decided in our opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. 2018), which held that forfeiture applies. The ACCA thus erred in applying waiver in Appellant’s case. Appellant was not prejudiced, however, as the ACCA still conducted a plain error review and deemed the error not clear or obvious. United States v. Kelly, 76 M.J. 793, 798–800 (A. Ct. Crim. App. 2017) (en banc).

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affirmed, and did not reach the question of whether Appel- lant’s sentence “ ‘should be approved.’ ” Kelly, 76 M.J. at 807. II. The Law

A. The Article 66 Power of the CCAs The CCAs were established at the behest of Congress by the Judge Advocates General. Article 66(a), UCMJ. As Arti- cle I courts, they enjoy limited jurisdiction, and are circum- scribed by the Constitution to the powers specifically grant- ed to them by statute. See United States v. Lopez de Victoria, 66 M.J. 67, 69 (C.A.A.F. 2008). The scope of the CCAs’ authority as to sentencing is con- tained in Article 66(c), UCMJ, which provides, in relevant part, that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” This Court has recognized that it is a “settled premise” that in exercising this statutory mandate, a CCA has discretion to approve on- ly that part of a sentence that it finds “should be approved,” even if the sentence is “correct” as a matter of law. United States v. Nerad, 69 M.J. 138, 142 (C.A.A.F. 2010); see United States v. Atkins, 8 C.M.A. 77, 79, 23 C.M.R. 301, 303 (1957) (“In short, the criterion for the exercise of the board of re- view’s power over the sentence is not legality alone, but le- gality limited by appropriateness.” (citation omitted)). Given their “awesome, plenary, de novo power of review,” United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), it is little wonder that this Court has described the CCAs as having a “carte blanche to do justice.” United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). B. Mandatory Minimums Under Article 56 In 2013, Congress amended Article 56, UCMJ, to provide for mandatory minimum punitive discharges in cases involv- ing rape, sexual assault, forcible sodomy, and attempts to commit such offenses. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1705, 127 Stat. 672, 959 (2013).

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Article 56(b), UCMJ, provides: (b)(1) While a person subject to this chapter who is found guilty of an offense specified in paragraph (2) shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge, except as provided for in section 860 of this title (article 60). (2) Paragraph (1) applies to the following offenses: (A) An offense in violation of subsection (a) or (b) of section 920 of this title (article 120(a) or (b)). 10 U.S.C. § 856(b) (2012 & Supp. I 2014). Article 56(b), UCMJ, expressly provides that the conven- ing authority may disapprove or commute such a mandatory minimum sentence in certain limited circumstances. See id.; see also Article 60(c)(4)(B)–(C), UCMJ, 10 U.S.C. § 860(c)(4)(B)–(C) (Supp. I 2014). Article 56(b) does not, however, call into question the vast powers of the CCAs or indeed reference Article 66(c), UCMJ, at any point. III. Discussion

The construction of a statute is a question of law we re- view de novo. Lopez de Victoria, 66 M.J. at 73. “It is a fun- damental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (in- ternal quotation marks omitted) (citation omitted). As such, “[t]his Court typically seeks to harmonize independent pro- visions of a statute.” United States v. Christian, 63 M.J. 205, 208 (C.A.A.F. 2006). In the instant case, Article 56(b), UCMJ, and Article 66(c), UCMJ, initially appear to be in tension. However, the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the re- viewing authorities. We have previously elected to treat mandatory minimum sentences as such. For example, in United States v. Jefferson, this Court declined to construe Article 118’s mandatory minimum punishment as an abso- lute minimum, and instead interpreted it as applying only to

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the court-martial, thus leaving appellate authorities “free to reappraise the appropriateness of the sentence in the nor- mal exercise of their review powers.” 7 C.M.A. 193, 194, 21 C.M.R. 319, 320 (1956). On that basis, this Court concluded that a board of review could ameliorate a mandatory sen- tence without first changing the findings of guilty. Id.; see Atkins, 8 C.M.A. at 79, 23 C.M.R. at 303 (“[T]he desire of Congress to have the board of review determine the appro- priateness of a sentence is so strongly stated we concluded that a board of review can even ameliorate a sentence which the Uniform Code makes mandatory for the court-martial.”). Such treatment gives full force and effect to both Article 56(b), UCMJ, and Article 66(c), UCMJ. Moreover, it recog- nizes that Congress has vested the CCAs with the oft-cited “awesome, plenary, de novo power of review,” Cole, 31 M.J. at 272, that effectively gives them “carte blanche to do jus- tice.” Claxton, 32 M.J. at 162. The CCAs and their predecessors have enjoyed this dis- cretion over sentence appropriateness since the inception of the UCMJ. See Article 66(c), UCMJ, 50 U.S.C. § 653(c) (Supp. IV 1951), repealed by Act of Aug. 10, 1956, ch. 1041, § 53, 70A Stat. 1, 641.2 This power “has no direct parallel in the federal civilian sector,” and no other federal appellate court, including ours, in the American criminal justice sys- tem possesses the same power. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); see Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2012) (“In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening au- thority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.… The Court of Appeals for the Armed Forces shall take action only with respect to mat- ters of law.”). It has not escaped our attention that, while Congress has made many changes to the UCMJ over the years, Congress has left Article 66(c) largely intact. Its language remains

2 A similar version of Article 66(c), with language closely tracking that of the version codified in 50 U.S.C. § 653(c), was en- acted concurrently with the repeal of 50 U.S.C. § 653(c). Act of Aug. 10, 1956, ch. 1041, § 866(c), 70A Stat. 1, 59.

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functionally unchanged since the UCMJ’s enactment in 1950. See Article 66(c), UCMJ, 50 U.S.C. § 653(c) (Supp. IV 1951) (now at 10 U.S.C. § 866(c) (2012)); see National De- fense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5330(d)(1), 130 Stat. 2000, 2933 (2016) (leaving the CCAs’ power to review sentence appropriateness intact). Although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similar- ly constrained the CCAs. See National Defense Authoriza- tion Act for Fiscal Year 2014, § 1702, 127 Stat. at 956 (re- stricting a convening authority’s power to disapprove, commute, or suspend in whole or in part sentences in excess of six months or a sentence of dismissal, dishonorable dis- charge, or bad-conduct discharge) (codified at 10 U.S.C. § 860(c)(4)(A) (Supp. I 2014)). For the foregoing reasons, we decline the Government’s invitation to read an implied repeal of the CCAs’ vast pow- ers into Article 56(b), UCMJ. Congress is presumed to know the law. See United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979) (“It is reasonable to assume that Congress was aware of the existence of such military law when performing its constitutional task to make laws for the armed forces.”); see also Cannon v. University of Chicago, 441 U.S. 677, 696–97 (1979) (“It is always appropriate to assume that our elected representatives, like other citizens, know the law.…”). As such, we presume Congress was aware of Article 66(c)’s broad scope when it enacted Article 56 and thus would have explicitly limited Article 66(c) review if it so desired. We trust that Congress knows how to limit the broad powers of the CCAs and note that Congress remains free to do so if it so chooses. To date, Congress has not so chosen. Until (and unless) it does, we hold that a CCA has the power to disap- prove a mandatory minimum sentence set forth in Article 56, UCMJ. IV. Judgment

The judgment of the United States Army Court of Crimi- nal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals for an as- sessment of sentence appropriateness pursuant to Article

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66(c), UCMJ, 10 U.S.C. § 866(c) (2012), consistent with this decision.