United States v. Rosales Gomez

• Court: United States Air Force Court of Criminal Appeals
• Decided: November 30, 2022
• Docket: S32713
• Status: Unpublished

Opinion

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

No. ACM S32713 ________________________

UNITED STATES Appellee v. Kevin M. ROSALES GOMEZ Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 30 November 2022 ________________________

Military Judge: Charles G. Warren. Sentence: Sentence adjudged 28 July 2021 by SpCM convened at Fairchild Air Force Base, Washington. Sentence entered by military judge on 18 August 2021: Bad-conduct discharge, confinement for 80 days, reduction to E-1, and a reprimand. For Appellant: Major David L. Bosner, USAF. For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John P. Patera, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Es- quire. Before KEY, ANNEXSTAD, and MENDELSON, Appellate Military Judges. Judge MENDELSON delivered the opinion of the court, in which Senior Judge KEY and Judge ANNEXSTAD joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ United States v. Rosales Gomez, No. ACM S32713

MENDELSON, Judge: In accordance with Appellant’s pleas and pursuant to a plea agreement, a special court-martial comprised of a military judge sitting alone convicted Ap- pellant of 11 specifications of absence without leave, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; two specifications of dereliction of duty, in violation of Article 92, UCMJ, 10 U.S.C. § 892; and two specifications of making a false official statement, in violation of Article 107, UCMJ, 10 U.S.C. § 907.1 The court-martial sentenced Appellant to a bad- conduct discharge, 80 days of confinement, reduction to the grade of E-1, and a reprimand. The convening authority took no action on the sentence. Appellant raises two assignments of error: (1) whether the convening au- thority’s error in failing to take action on the sentence materially prejudiced Appellant’s substantial rights; and (2) whether the confinement facility’s dep- rivation of Appellant’s First Amendment2 right to free exercise of religion ren- ders the sentence incorrect in law or otherwise inappropriately severe. We find no error materially prejudicial to Appellant’s substantial rights and affirm the findings and sentence.

I. BACKGROUND Appellant was convicted of five specifications involving offenses that were committed prior to 1 January 2019. After the conclusion of the court-martial, on 9 August 2021, Appellant’s trial defense counsel submitted a clemency re- quest asking the convening authority to reduce the adjudged term of confine- ment. Appellant’s defense counsel explained the request was based on the lim- itations the post-trial confinement facility imposed upon Appellant’s ability to practice his faith, specifically because religious services were not readily avail- able, and Appellant could not attend a weekly service that was an obligation of his faith. Trial defense counsel further explained, “The purpose for granting clemency in this case is . . . to hasten the restoration of [Appellant]’s First Amendment rights.”

1 Specifications 3, 4, and 5 of Charge I, absence without leave, charge offenses commit-

ted in 2018; and Specifications 1 and 2 of Charge III, false official statement, charge offenses committed in 2018. Accordingly, for these specifications, the punitive articles in Articles 86 and 107, UCMJ, 10 U.S.C. §§ 886 and 907, Manual for Courts-Martial, United States (2016 ed.), apply. Unless otherwise specified, all other references to the UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.). Pursuant to the plea agreement, two specifications of absence without leave, two specifications of dereliction of duty, and two specifications of false official statement were withdrawn and dismissed with prejudice. 2 U.S. CONST. amend. I.

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On 10 August 2021, the convening authority signed a Decision on Action memorandum stating, “I take no action on the sentence in this case” and pre- scribed language for the reprimand. In the memorandum, the convening au- thority also stated: “Prior to coming to this decision, I consulted with my Staff Judge Advocate. Before declining to take action, I considered matters timely submitted by [Appellant] under [Rule for Courts-Martial (R.C.M.)] 1106.” Trial defense counsel received the Decision on Action memorandum on 11 August 2021, and Appellant did not file a motion with the military judge alleging con- vening authority error, as permitted under R.C.M. 1104(b)(1)(F).

II. DISCUSSION A. Convening Authority’s Decision on Action Appellant claims prejudice from the convening authority’s failure to take action on the sentence. He urges the court to remand his case for “another op- portunity at clemency.” We are not persuaded relief is warranted. 1. Law [I]n any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part. United States v. Brubaker-Escobar, 81 M.J. 471, 472 (C.A.A.F. 2021) (per cu- riam); see also Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)). The convening authority’s failure to ex- plicitly take one of those actions is a “procedural” error. Brubaker-Escobar, 81 M.J. at 475. “Pursuant to Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2018), pro- cedural errors are ‘test[ed] for material prejudice to a substantial right to de- termine whether relief is warranted.’” Id. (alteration in original) (quoting United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)). 2. Analysis Because Appellant was found guilty of at least one specification involving an offense committed before 1 January 2019, the convening authority was re- quired to approve, disapprove, commute, or suspend the sentence of the court- martial in whole or in part. See Brubaker-Escobar, 81 M.J. at 472. Because the convening authority did not take one of these required actions, and instead took “no action on the sentence in this case,” the convening authority commit- ted a procedural error.

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Citing United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005), Appellant ar- gues he need only show “some colorable showing of possible prejudice” to demonstrate relief is warranted. See id. at 436–37 (“To meet this burden in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make ‘some colorable showing of possible prejudice.’” (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000))). The Government, citing to Brubaker- Escobar, asserts this court tests procedural errors “for material prejudice to a substantial right to determine whether relief is warranted,” 81 M.J. at 475, and contends the lower prejudicial threshold of “some colorable showing of pos- sible prejudice,” Scalo, 60 M.J. at 436-37, does not apply in this context. We find the “some colorable showing of possible prejudice” standard does not apply when evaluating procedural error, like the one here, in the announce- ment of the convening authority’s decision. Id. The convening authority’s deci- sion memorandum suffers from the same procedural defect as the one in Bru- baker-Escobar, and in that case the United States Court of Appeals for the Armed Forces (CAAF) tested for material prejudice to a substantial right of the appellant to determine if relief was warranted. 81 M.J. at 475. In applying this test, the CAAF relied upon Alexander in which the Court held “we will not order relief absent a showing of prejudice.” 61 M.J. at 270. The procedural error in Brubaker-Escobar and in the present case is a defect in the form of the an- nouncement of a convening authority’s decision, and not a post-trial recom- mendation error where the prejudicial threshold is low, requiring only some colorable showing of possible prejudice.3 For these reasons, we follow the text and plain meaning of Article 59(a), UCMJ. Testing for material prejudice to Appellant’s substantial rights, we find no relief is warranted. To begin, the convening authority was not authorized to disapprove, commute, or suspend the adjudged bad-conduct discharge. See Ar- ticle 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A) (2016 MCM). While the con- vening authority did have power to disapprove, commute, or suspend the ad- judged reduction in grade and reprimand, Appellant did not request such re- lief. The only relief Appellant requested was for the convening authority to reduce the adjudged term of confinement. Appellant justified the request based

3 “[I]n the context of a post-trial recommendation error,” the proper standard is “some

colorable showing of possible prejudice.” United States v. Miller, 82 M.J. 204, 208 (C.A.A.F. 2022) (quoting Scalo, 60 M.J. at 436–37); see also Kho, 54 M.J. at 64–65 (er- rors and omissions in staff judge advocate’s recommendation (SJAR)); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (defect in SJAR); United States v. Chatman, 46 M.J. 321, 323–24 (C.A.A.F. 1997) (defect in addendum to the SJAR).

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on the conditions of his post-trial confinement, specifically, his assertion that the confinement facility imposed limitations on his ability to practice his faith. The convening authority evaluated Appellant’s clemency request, stating he “considered matters timely submitted by [Appellant] under R.C.M. 1106” and also consulted with his staff judge advocate (SJA). After Appellant submit- ted assignments of error to this court, the Government submitted a declaration from the SJA who advised the convening authority.4 In the declaration, the SJA explained the convening authority’s intent was to provide no relief on the sentence: As the SJA, I advise the [Special Court-Martial Convening Au- thority], in every case, on post-trial proceedings, including the Convening Authority Decision on Action. On 9 August 2021, [Ap- pellant] submitted matters to the convening authority stating that he was unable to practice his religious beliefs at the Lincoln County Correctional Facility, because they did not offer weekly Catholic services. It was a one-page submission without any at- tachments submitted by his counsel requesting that [the conven- ing authority] reduce his sentence to confinement. After consid- ering the submission, [the convening authority] consulted with me and determined that the sentence, as adjudged, was appro- priate. He memorialized his decision in the 10 August 2021 Con- vening Authority Decision on Action for United States v. Senior Airman Kevin M. Rosales Gomez. In taking “no action,” his in- tent was to provide no relief on the sentence. Appellant argues the convening authority’s error in announcing “no action” on his sentence creates uncertainty as to whether “the convening authority even knew he could reduce the terms of confinement.” We find no support for this argument. Appellant’s own clemency submission informed the convening authority of his “authority to amend [Appellant’s] sentence with downward ad- justments” and urged the convening authority to use his authority to grant clemency by reducing the term of confinement. The convening authority, as stated in his decision memorandum, considered Appellant’s clemency submis- sion and consulted with his SJA before making his decision. Under these cir- cumstances, we have no reason to doubt the convening authority was aware of

4 We granted the Government’s unopposed motion to attach the SJA’s declaration. We

find that consideration given by the convening authority to Appellant’s clemency re- quest is raised by the record, and thus we are not prohibited from considering the dec- laration in conducting our review. See United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020) (holding Courts of Criminal Appeals (CCAs) may consider affidavits when doing so is necessary to resolve issues raised by materials in the record).

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his authority to grant clemency, to include a reduction of the term of confine- ment. We are satisfied by the SJA’s declaration that the convening authority decided to provide no relief. Accordingly, we find the procedural error in the convening authority’s De- cision on Action memorandum did not result in material prejudice to Appel- lant’s substantial rights. B. Conditions of Post-Trial Confinement Appellant argues he is entitled to sentence relief due to the conditions of his post-trial confinement. Specifically, he asserts the confinement facility im- posed limitations on his ability to practice his faith because it did not offer weekly religious services. Appellant maintains the denial of his free exercise of religion while in post-trial confinement rendered his sentence, as executed in the confinement facility, incorrect in law and inappropriately severe. We find Appellant failed to exhaust his administrative remedies prior to raising his conditions of post-trial confinement with this court, which precludes his claim.5 We also find the sentence as entered under Article 60c, UCMJ, 10 U.S.C. § 860c, is both correct in law and not inappropriately severe. 1. Law This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only . . . 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(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the of- fense[s], the appellant’s record of service, and all matters contained in the rec- ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted). We consider whether an appellant’s sentence was ap- propriate “judged by ‘individualized consideration’ of the particular [appellant] ‘on the basis of the nature and seriousness of the offense and the character of the offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quot- ing United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)). Although we have broad discretion in determining whether a particular sentence is ap- propriate, we are not authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

5 We note Appellant does not allege the sentence as entered is inappropriately severe,

but rather alleges that the post-trial confinement conditions operated to unlawfully increase the severity of the sentence or render the sentence inappropriate.

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With respect to our review of the sentence, our superior court has explained this court has two responsibilities: The first is to ensure that the sentence imposed on an appellant is “correct in law.” As an example of this mandate, [Courts of Criminal Appeals (CCAs)] are required to ensure that the ad- judged and approved sentence in a particular case does not ex- ceed the maximum penalty authorized under the applicable pu- nitive article. The second relevant CCA responsibility under Ar- ticle 66 is to determine whether the sentence imposed on an ap- pellant “should be approved.” As an example, CCAs must deter- mine the appropriateness of an adjudged and approved sentence in light of the underlying facts adduced at trial, to include all extenuating and mitigating circumstances. United States v. Guinn, 81 M.J. 195, 199 (C.A.A.F. 2021) (citations omitted). The CAAF further found that these responsibilities include granting sentenc- ing relief based on post-trial confinement conditions that unlawfully increase the severity of the sentence or render the sentence inappropriate. Id. at 200. However, in Guinn, the CAAF “fully recognize[d] that CCAs ‘are not a clear- inghouse for post-trial confinement complaints or grievances.’” Id. at 203 (quot- ing United States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017)). The court continued: [I]t still remains the case that “[a]n appellant who asks [a CCA] to review prison conditions . . . must establish” the following: (1) a record demonstrating exhaustion of administrative remedies (i.e., exhaustion of the prisoner grievance system and a petition for relief under Article 138, UCMJ, 10 U.S.C. § 938 (2012), ex- cept in “unusual or egregious circumstances that would justify [the] failure” to exhaust); (2) “a clear record demonstrating . . . the jurisdictional basis for [the CCA’s] action”; and (3) “a clear record demonstrating . . . the legal deficiency in administration of the prison.” Id. at 203 (alterations and omissions in original) (quoting United States v. Mil- ler, 46 M.J. 248, 250 (C.A.A.F. 1997)). “[A]bsent some unusual or egregious circumstance,” an appellant must demonstrate “he has exhausted the prisoner-grievance system” at the confine- ment facility “and that he has petitioned for relief under Article 138, [UCMJ].” United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007) (internal quotation marks and citation omitted). “This requirement ‘promot[es] resolution of griev- ances at the lowest possible level [and ensures] that an adequate record has

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been developed [to aid appellate review].’” Id. (alterations in original) (quoting Miller, 46 M.J. at 250). 2. Analysis Appellant does not contend that he exhausted administrative remedies by using the jail grievance system or petitioning for relief under Article 138, UCMJ, nor does the record suggest he exhausted those remedies. After receiv- ing Appellant’s assignments of error, the Government submitted declarations from the confinement facility superintendent and the chief of military justice at the base legal office averring there is no record of Appellant filing a request with the confinement facility to attend religious services, filing a grievance with the confinement facility, or filing an Article 138, UCMJ, complaint.6 Nor does Appellant claim, much less explain, “unusual or egregious circum- stances that would justify his failure” to exhaust or render such efforts futile. Miller, 46 M.J. at 250. While Appellant argues he raised the conditions of his post-trial confinement in his clemency submission, the clemency submission alone is insufficient to satisfy Appellant’s duty to exhaust administrative rem- edies, which is designed to promote resolution of grievances at the lowest pos- sible level and to ensure the development of an adequate record to aid appellate review. See Wise, 64 M.J. at 471. In fact, Appellant was advised by his trial defense counsel in a Post-Trial and Appellate Rights Advisement memoran- dum, signed by Appellant on 24 July 2021, that “[i]n order to get relief for the poor conditions of your confinement, [he] ordinarily must first exhaust every administrative avenue available to try to correct the issue.” The memorandum goes on to explain: To exhaust administrative avenues for relief, you should do each of the following; (1) submit a complaint to the confinement facil- ity, preferably in writing; (2) request relief through clemency, if known at that time; and (3) file a complaint with the commander who ordered your confinement under Article 138, UCMJ, which needs to be done within 90 days of your discovery of the improper confinement conditions. Accordingly, we find Appellant’s claim fails because he did not exhaust ad- ministrative remedies before petitioning this court for relief, and the record

6 We granted the Government’s unopposed motion to attach the declarations. We find

the conditions of post-trial confinement were raised by the record, and thus we are not prohibited from considering the declarations in conducting our review. See Jessie, 79 M.J. at 444 (holding CCAs may consider affidavits when doing so is necessary to re- solve issues raised by materials in the record). The confinement facility superinten- dent’s declaration explains the limitation on religious services was due to health con- cerns related to the COVID-19 global pandemic.

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does not establish any unusual or egregious circumstances that would justify the failure to exhaust administrative remedies or render exhaustion futile.7 We have also given individualized consideration to Appellant, the nature and seriousness of his offenses, his record of service, and all other matters con- tained in the record of trial. In doing so, we find the sentence as entered under Article 60c, UCMJ, is both correct in law and not inappropriately severe.

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

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

7 We note the confinement facility superintendent’s declaration avers that requests for

religious services were considered on a case-by-case basis.