United States v. Lawler

• Court: United States Air Force Court of Criminal Appeals
• Decided: May 28, 2020
• Docket: ACM 39699
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM 39699 ________________________

UNITED STATES Appellee v. Dylan J. LAWLER Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 28 May 2020 ________________________

Military Judge: Jennifer E. Powell. Approved sentence: Bad-conduct discharge, confinement for 14 months, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. Sentence adjudged 29 January 2019 by GCM convened at Cannon Air Force Base, New Mexico. For Appellant: Major Christopher C. Newton, USAF For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Anne M. Delmare, USAF; Mary Ellen Payne, Esquire. Before MINK, KIEFER, and D. JOHNSON Appellate Military Judges. Judge KIEFER delivered the opinion of the court, in which Senior Judge MINK and Judge D. JOHNSON joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________

KIEFER, Judge: Appellant was convicted, pursuant to his pleas and a pretrial agreement (PTA), of wrongful use of cocaine on divers occasions, wrongful distribution of United States v. Lawler, No. ACM 39699

cocaine on divers occasions, and wrongful distribution of marijuana under Ar- ticle 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1,2 The military judge sentenced Appellant to a bad-conduct discharge, confinement for 15 months, forfeiture of all pay and allowances, reduction to the grade of E- 1, and a reprimand. Pursuant to the terms of the PTA, the convening authority approved 14 months of confinement and the remainder of the adjudged sen- tence. Appellant asserts two assignments of error: (1) whether his sentence is in- appropriately severe; and (2) whether he was entitled to sentence relief be- cause the conditions of his post-trial confinement were cruel and unusual un- der the Eighth Amendment to the United States Constitution 3 and Article 55, UCMJ, 10 U.S.C. § 855, or, alternatively, that his post-trial confinement con- ditions rendered his sentence inappropriately severe pursuant to United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016). 4 We find no prejudicial error and affirm.

I. BACKGROUND During his guilty plea inquiry, Appellant, a member of the 27th Special Operations Security Forces Squadron, admitted that from October 2016 through October 2017, he wrongfully used cocaine approximately once every four to six weeks. Over this same time frame, on multiple occasions while at parties, Appellant distributed cocaine to his military and civilian friends. In September 2017, Appellant distributed marijuana to a civilian friend in ex- change for money.

1All references in this decision to the Uniform Code of Military Justice are to the Man- ual for Courts-Martial, United States (2016 ed.). 2 We note that the military judge’s entry of findings failed to include a finding for Charge I. No objection was raised during trial or post-trial. The Court-Martial Order reflects a finding of Guilty to Charge I. It is clear from review of the entry of pleas, the totality of the guilty plea inquiry, and the findings for the three specifications under Charge I that the finding as to Charge I was Guilty. Although the military judge did not enter a finding of guilty as to Charge I, she entered a finding of guilty to the Spec- ifications of Charge I. That was enough, and we find any curative action is unneces- sary. See United States v. Scearce, No. ACM 29533, 1993 CMR LEXIS 141, at *3 (A.F.C.M.R. 1993) (unpub. op.) (per curiam) (citing United States v. Logan, 15 M.J. 1084, 1085 (A.F.C.M.R. 1983) (“An accused’s criminality is determined by the findings as to the specifications, not the charge.”). 3 U.S. CONST. amend. VIII. 4 Appellantraises both assignments of error pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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Following trial, Appellant was incarcerated for approximately 30 days at the confinement facility at Cannon Air Force Base (AFB), New Mexico, before being transferred to another facility off base. Appellant’s Eighth Amendment and Article 55, UCMJ, claims pertain only to his time at the Cannon AFB fa- cility. Appellant submitted a sworn declaration to this court in support of his ar- gument that his conditions of confinement at Cannon AFB warrant relief. We granted Appellant’s motion to attach the declaration to the record. In response, the Government obtained a sworn declaration from SSgt TR, the noncommis- sioned officer in charge of the Cannon AFB confinement facility. We granted both Appellant’s and the Government’s motions to attach these declarations. Most of the following facts are from the declarations. Appellant was in-processed at the Cannon AFB facility on 29 January 2019 by two Security Forces members. They reviewed Appellant’s case including the offenses for which he was being confined and his adjudged sentence. Based on this information and using a pre-established evaluation system, they assigned him a custody classification of maximum security. They also instructed Appel- lant on the rules of the facility, how to perform certain tasks, and the address people should use when sending him mail. Appellant had to be corrected a few times on facility rules during in-processing. Finally, a male staff member of the confinement facility conducted a strip search of Appellant which was observed by a male member of Appellant’s unit. The strip search was not viewable by the public or any other confinement facility staff member or inmate. During Appellant’s confinement at the Cannon AFB facility, he was treated in accordance with maximum security protocols including being escorted out- side of his cell with handcuffs and leg irons, and wearing shackles when receiv- ing visitors. These protocols continued throughout Appellant’s confinement at the Cannon AFB facility. Appellant claims he requested pen and paper from confinement officials and was not given these items. At some point during his stay in the facility, he was given these items by his fiancée. Appellant does not claim confinement staff members confiscated these items after he received them from his fiancée. Facility rules permitted Appellant to receive mail, but he claims he only received mail during a portion of his time at the Cannon AFB facility. Confine- ment staff conducted weekly mail runs during Appellant’s time in confinement. One member of the confinement staff stated that he had no recollection of Ap- pellant ever being denied mail. Appellant was transferred to an off-base confinement facility on 26 Febru- ary 2019.

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II. DISCUSSION A. Sentence Severity and Sentence Comparison 1. Law This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted). We “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [we] find[ ] correct in law and fact and determine[ ], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We as- sess sentence appropriateness by considering the particular appellant, the na- ture and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we are ac- corded great discretion in determining whether a particular sentence is appro- priate, we are not authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010). Appellant also asserts, for the first time on appeal in his post-trial declara- tion, that his sentence is inappropriately severe as compared to other cases. Sentence comparison is required only in closely related cases. United States v. Christian, 63 M.J. 714, 717 (A.F. Ct. Crim. App. 2006) (citing United States v. Wacha, 55 M.J. 266, 267–68 (C.A.A.F. 2001)), aff’d in part, 66 M.J. 291 (C.A.A.F. 2008). Closely related cases include, for example, those which pertain to “coactors involved in a common crime, servicemembers involved in a com- mon or parallel scheme, or some other direct nexus between the servicemem- bers whose sentences are sought to be compared.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). “[A]n appellant bears the burden of demonstrat- ing 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, . . . then the Government must show that there is a rational basis for the disparity.” Id. (emphasis added). The test for whether sentences are highly disparate involves comparison of not only the raw numerical values of the sentences in the closely related cases but also consideration of any disparity in relation to the potential maximum sentence. Id. at 289. Some sentence disparity in closely related cases does not alone invalidate an otherwise legal sentence “provided each military accused is sentenced as an individual.” United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001) (citations omitted). 2. Analysis With respect to sentence appropriateness, during the guilty plea inquiry, Appellant admitted to using cocaine on multiple occasions, distributing cocaine on multiple occasions, and distributing marijuana on one occasion. During pre- sentencing proceedings, the Government presented evidence that Appellant

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used cocaine as often as five to six times per week and told two individuals that he “went to work high on cocaine on multiple occasions while he was on flight and armed up.” The Government also presented evidence that Appellant’s criminal conduct included distribution of cocaine to members of his Security Forces flight, and as a result, the unit had to modify several work schedules, including the use of 12-hour shifts, which placed a greater demand on its per- sonnel resources. Additionally, Appellant faced a maximum punishment that included 35 years of confinement and a dishonorable discharge. He was ad- judged 15 months of confinement and only 14 months were approved pursuant to the PTA. Appellant also received a bad-conduct discharge for divers use and distribution of drugs to civilians and military personnel. Based on our particu- larized review of this Appellant, these crimes and all of their attendant circum- stances, and Appellant’s record, we find the approved sentence is appropriate in this case. With respect to sentence comparison, Appellant’s post-trial decla- ration offers no details of the other cited cases beyond a simple listing of alleged offenses and sentences. We find Appellant has failed to meet his burden of showing that the cases noted in his declaration are “closely related.” See Lacy, 50 M.J. at 288. Further, even a review of the sentences listed fails to demon- strate that Appellant’s sentence is “highly disparate.” See id. B. Cruel and Unusual Punishment 1. Law We review de novo whether an appellant has been subjected to impermis- sible post-trial confinement conditions in violation of the Eighth Amendment or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)). 5 Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual punish- ment. In general, we apply “the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, [UCMJ,] except in circum-

5 All of the information regarding the conditions of Appellant’s post-trial con- finement was raised after the convening authority took action on the sentence, was submitted by the parties and ordered attached to the record by this court, and was not raised at trial or during clemency. See United States v. Jessie, ___ M.J. ___, No. 19-0192, 2020 CAAF LEXIS 188, at *20-21 (C.A.A.F. 6 Apr. 2020) (citation omitted) (in which the Court of Appeals for the Armed Forces (CAAF) recognized the authority of a Court of Criminal Appeals to consider matters outside the record, such as the declarations in this case, when resolving alle- gations of cruel and unusual punishment pursuant to the Eighth Amendment and Article 55, UCMJ).

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stances where . . . legislative intent to provide greater protections under [Arti- cle 55, UCMJ,]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citation omitted). “[T]he Eighth Amendment prohibits two types of punishments: (1) those ‘incompatible with the evolving standards of decency that mark the progress of a maturing society’ or (2) those ‘which involve the unnecessary and wanton infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). As the Supreme Court has explained, “[t]he Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 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 [an appellant]’s health and safety; and (3) that [an appellant] “has exhausted the prisoner-grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938 [2000].” Lovett, 63 M.J. at 215 (third and fourth alterations in original) (footnotes omit- ted) (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). Courts may review various confinement conditions in determining whether a “suffi- ciently serious” deprivation under the Eighth Amendment has been shown. Avila, 53 M.J. at 102. Further, “[a] prisoner must seek administrative relief prior to invoking ju- dicial intervention” with respect to concerns about post-trial confinement con- ditions. Wise, 64 M.J. at 471) (quoting White, 54 M.J. at 472) (other citations omitted). “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. (alterations in original) (quoting Miller, 46 M.J. at 250); see also United States v. McPherson, 73 M.J. 393, 397 (C.A.A.F. 2014). “Absent some unusual or egregious circumstance,” an appellant must exhaust both the grievance system at the confinement facility as well as petition for relief under Article 138, UCMJ. Wise, 64 M.J. at 469. 2. Analysis On appeal, Appellant asserts that the conditions of his post-trial confine- ment violated his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment and Article 55, UCMJ. Appellant claims the follow- ing post-trial confinement conditions violated his rights: (1) during his in-pro-

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cessing to confinement, he was forced to strip naked in front of a master ser- geant and was yelled at by this master sergeant; (2) he was never given pen or paper on which to communicate with friends and family; (3) he was denied mail; (4) his custody grade determination was never upgraded despite his re- quest for such a modification; and (5) he had to wear leg shackles during his time in confinement including in front of his fiancée. To the extent there are contradictions between Appellant’s declaration and SSgt TR’s declaration, we considered whether a post-trial evidentiary hearing was required to resolve any factual dispute. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam). We are convinced such a hearing is unnecessary. Even if we resolve any contradictions in Appellant’s favor, the alleged conditions would not result in our granting relief. Ginn, 47 M.J. at 248. As a preliminary matter, Appellant failed to seek administrative relief at the confinement facility or through the process required under Article 138, UCMJ. Appellant requested certain items such as pen and paper from jail of- ficials, but these requests do not satisfy the administrative relief requirement. We also do not agree with Appellant that his prior interactions with his unit rise to the level of unusual or egregious circumstances that would excuse his failure to exhaust the prisoner grievance process or petition for relief pursuant to Article 138, UCMJ. Even upon substantive review of Appellant’s Eighth Amendment claims, we find that none of the circumstances cited, neither individually nor collec- tively, constitute sufficiently serious acts or omissions that resulted in the de- nial of necessities. Additionally, nothing noted by Appellant demonstrates a culpable state of mind on the part of prison officials amounting to deliberate indifference to Appellant’s health and safety. The Government’s post-trial dec- laration from a jail official indicates Appellant was not denied any necessities, despite his claims that he was not initially provided pen or paper and that there may have been delays in delivery of his mail. Further, the circumstances surrounding Appellant’s initial strip search upon intake at the facility, some- one possibly yelling at Appellant, and the use of leg irons or shackles were consistent with jail policy and do not evidence a culpable state of mind on the part of confinement officials. Accordingly, we find Appellant’s Eighth Amendment and Article 55, UCMJ, rights were not violated. C. Confinement Conditions and Sentence Appropriateness 1. Law In addition to his Eighth Amendment and Article 55, UCMJ, claims, Ap- pellant also asserts that the conditions of his post-trial confinement rendered

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his sentence inappropriately severe pursuant to United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016). Under Article 66(c), UCMJ, we have broad authority and the mandate to approve only so much of the sentence as we find appropriate in law and fact and may, therefore, grant sentence relief, without finding a violation of the Eighth Amendment or Article 55, UCMJ. United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). In considering Article 66(c), UCMJ, claims, we have declined to require appellants to demonstrate they have previously exhausted administrative remedies prior to seeking judicial relief. See United States v. Henry, 76 M.J. 595, 610 (A.F. Ct. Crim. App. 2017). We instead consider the entire record 6 and typically give “significant weight” to an appellant’s failure to exhaust those remedies before requesting judicial intervention. Id. 2. Analysis The relevant question under Article 66(c), UCMJ, is whether Appellant’s confinement conditions rendered his sentence inappropriately severe. Appel- lant cites Gay as his basis for relief under Article 66(c), UCMJ. In Gay, this court addressed an issue of inmate segregation at the request of Air Force offi- cials that was contrary to the civilian confinement facility’s procedures. 74 M.J. at 740. This court held that under the circumstances of that case, the appellant was entitled to Article 66(c), UCMJ, relief. Id. at 743. The Court of Appeals for the Armed Forces held that this court did not abuse its discretion in granting relief in Gay but pointed to the unique facts and legal errors in that case and explained, “[i]n reaching this conclusion, we do not recognize unlimited author- ity of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of post-trial confinement of which they disapprove.” 75 M.J. at 269.

6 We assume, without deciding, that we may consider the same declarations we con- sidered to resolve Appellant’s claim under the Eighth Amendment and Article 55, UCMJ, to determine whether Appellant’s sentence is inappropriately severe. See, e.g., United States v. McGriff, No. ACM 39306, 2018 CCA LEXIS 567, at *24–25 (A.F. Ct. Crim. App. 11 Dec. 2018) (unpub. op.), rev. denied, 78 M.J. 487 (C.A.A.F. 2019); see also United States v. DeFalco, No. ACM 39607, 2020 CCA LEXIS 164, at *13 n. 10 (A.F. Ct. Crim. App. 21 May 2020) (unpub. op.) (citing United States v. Jacinto, ___ M.J. ___, No. 201800325, 2020 CCA LEXIS 136, at *42–43 (N.M. Ct. Crim. App. 30 Apr, 2020) (in which our sister court recently held that in conducting its review pursuant to Arti- cle 66, UCMJ, as it pertains to claims related to the Eighth Amendment or Article 55, “ultimately approv[ing] a sentence ‘on the basis of the entire record’ . . . could easily include items attached to the record on appeal”)).

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The facts of this case are far different from the issues in Gay. Even consid- ering a broader application of the principles from Gay, and assuming the accu- racy of every aspect of Appellant’s declaration, Appellant has failed to demon- strate the types of post-trial confinement conditions that would render his sen- tence inappropriately severe. As outlined above, Appellant was not denied ne- cessities, no facility or Air Force policies were violated, and he was not sub- jected to circumstances that in any way increased the severity of his sentence. Thus, we decline to order sentence relief pursuant to Article 66(c), UCMJ.

III. CONCLUSION The findings and the sentence are correct in law and fact, and no error ma- terially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court