AFCCA doesn’t normally publish its sentence appropriateness opinions. But it did so today in United States v. Anderson, __ M.J. ___, No. ACM 37517 (A.F.Ct. Crim. App. Apr. 7, 2009) (per curiam). Presumably AFCCA published the opinion because it sides with an unpublished NMCCA decision to provide an answer to this question: “In assessing whether or not [court-martial sentences in two closely related cases] are highly disparate, . . . should [the CCA] compare the appellant’s adjudged and approved sentence” with the closely related case’s adjudged sentence or approved sentence? Id., slip op. at 4-5. Adjudged sentence, rules AFCCA, id., slip op. at 5, thus indicating that a CCA may ignore sentence disparity created by a convening authority’s reduction of the closely related case’s sentence.

[DISCLAIMER: I second-seated the oral argument for the defense.]

2 Responses to “AFCCA issues published sentence disparity/sentence appropriateness opinion”

  1. Anonymous says:

    Any commentary of the CAAF grant/remand to AFCCA of the following isssue:

    APPELLANT WAS CONVICTED OF RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT BOLSTERED THE ALLEGED VICTIM'S RAPE ACCUSATION. BASED ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE THE RAPE CONVICTION. HOWEVER, IT AFFIRMED THE ADULTERY CONVICTION. DID THE COURT ERR SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE FORCE AND CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?

    I don't have a dog in this fight but it appears odd as force and consent are not elements of adultery so I am at a loss to understand why an error regarding testimony as to one could impact the adultery cconviction. Regardless of whether the members thought it was by force and w/o consent or not, as long as they believed sexual intercourse took place (which they did and was probably not even an issue (I don't know)) and the status of one of the actors was established as married to another, and the service discrediting or conduct prej to GO&D was presented, what difference does it make?

    Is this another example of CAAF not having enough work to do?

  2. Anonymous says:

    Probably….Guilty or innocent, if I was ever accused of crime I would definitely want to be charged under the UCMJ….It’s a gold-plated legal system!