United States v. SPENCER

Opinion

This opinion is subject to administrative correction before final disposition.

Before

KISOR, HARRELL, and de GROOT

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UNITED STATES

Appellee

v.

Braxston C. SPENCER

Lance Corporal (E-3), U.S. Marine Corps Appellant

No. 202400328 (f rev)

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Decided: 24 August 2026

Appeal from the United States Navy-Marine Corps Trial Judiciary upon further review following remand from the United States Court of Appeals for the Armed Forces Military Judge:

Aran T. Walsh (arraignment) Matthew M. Harris (Trial)

Sentence adjudged 13 May 2024 by a special court-martial tried at Marine Corps Base Camp Pendleton, California, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E- 1, confinement for 60 days, forfeiture of $1,344.00 pay per month for two months, and a bad-conduct discharge.

For Appellant:

Lieutenant Commander Michael W. Wester, JAGC, USN

For Appellee:

Lieutenant Commander Philip J. Corrigan, JAGC, USN

United States v. Spencer, NMCCA No. 202400328 Opinion of the Court

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This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.

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PER CURIAM:

This case is before us upon remand from the Court of Appeals for the Armed Forces (CAAF), which affirmed the findings of guilty but set aside our decision as to the sentence. 1 I. BACKGROUND

Appellant was charged with four specifications of larceny in violation of Article 121, Uniform Code of Military Justice (UCMJ). 2 He ultimately pleaded guilty to all four specifications in accordance with a plea agreement. Appellant argued before this Court that his sentence to a bad-conduct discharge was inappropriately severe, and he requested that we set it aside. We disagreed and affirmed the findings and sentence. 3 Appellant appealed this decision to the CAAF, arguing that we failed to independently review the appropriateness of the sentence. The CAAF agreed with Appellant that we articulated our decision in a way that made it unclear whether we conducted an independent review of the sentence to determine whether it was an appropriate sentence. 4 While the CAAF affirmed our decision as to the findings, it set aside our decision as to the sentence, remanding the case to this Court for a new review of the sentence under Article 66, UCMJ. 5 After this case was remanded to this Court, Appellant provided new briefing to this Court and is now requesting that we set aside the reduction in

1 United States v. Spencer, 86 M.J. 379, 384 (C.A.A.F. 2026).

2 10 U.S.C. § 921.

3 United States v. Spencer, No. 202400328, 2025 CCA LEXIS 168 at *6 (N-M. Ct.

Crim. App. Apr. 18, 2025) (unpublished).

4 Spencer, 86 M.J. at 383.

5 Id. at 384.

3

United States v. Spencer, NMCCA No. 202400328 Opinion of the Court

grade to E-1 as the appropriate remedy. 6 We incorporate the facts as stated in our previous opinion. 7 II. DISCUSSION

We review sentence appropriateness de novo. 8 As Appellant’s offenses occurred before 27 December 2023, this Court “may affirm only the sentence, or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” 9 An “individualized consideration of the particular accused on the basis of the nature and seriousness of the offense and the character of the offender” is required as part of our review. 10 We “must review the entire record, which includes taking the plea agreement into account, but still must exercise [our] independent judgment.” 11 Applying the above to our consideration of the entire record, to include the plea agreement, evidence provided in extenuation and mitigation, and the military judge’s recommendation, we determine Appellant’s sentence for the offenses to which he pleaded guilty is appropriate and should be approved.

III. CONCLUSION

The sentence is AFFIRMED. 12

FOR THE COURT:

MARK K. JAMISON Clerk of Court

6 Appellant’s Brief at 8.

7 See Spencer, 2025 CCA LEXIS 168 at *1–3.

8 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).

9 Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1) (2018).

10 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).

11 Spencer, 86 M.J. at 383.

12 Articles 59 and 66, UCMJ, 10 U.S.C. § 859, 866.