United States v. Staff Sergeant VICTOR J. PORTALES

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Staff Sergeant VICTOR J. PORTALES United States Army, Appellant

ARMY 20051348

Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss Jeffrey R. Nance and Mark P. Spusato, Military Judges Colonel Mark A. Rivest, Staff Judge Advocate

For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks JA; Captain Alison L. Gregoire JA (on brief).

For Appellee: Major Elizabeth G. Marotta JA; Lieutenant Colonel Lieutenant Colonel Francis C. Kiley, JA; Major Karen J. Borerdine JA (on brief).

4 April 2008

------------------------------------- SUMMARY DISPOSITION -------------------------------------

Per Curiam:

This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. Appellant was charged, inter alia, with three specifications of wrongful importation, introduction, and/or distribution of cocaine in violation of Article 112a, UCMJ (Charge II). We concur with appellant’s assertion that his providence inquiry does not support his plea to all of the language in Specification 3 of Charge II. Accordingly, we set aside the finding of guilty to and dismiss only so much of Specification 3 of Charge II as states “and/or distribution.” As amended, Specification 3 of Charge II now provides:

In that SSG Victor J. Portales, U.S. Army, did, at or near Apiay Airbase, Colombia and/or Fort Bliss, Texas, between on or about 1 February 2005 and on or about 29 March 2005, wrongfully import and introduce approximately 15 kilograms of cocaine into the customs territory of the United States and onto an installation used by or under control of the Armed Forces, to wit: Biggs Army Airfield, Fort Bliss, Texas, on board a military aircraft in use by the armed forces and while receiving special pay under 37 U.S.C. §310.

We affirm the finding of guilty to Specification 3 of Charge II as amended.

The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, including Judge Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court