AFCCA today issued a published opinion in United States v. Thompson, __ M.J. ___, No. ACM 37380 (A.F. Ct. Crim. App. June 3, 2010).  The opinion discusses what dispositions will and won’t be considered as part of a sentence disparity analysis.  Where a co-actor’s case is resolved by NJP, the Air Force Court holds, it will be considered as part of a sentence disparity analysis.  But where no disciplinary action has been taken against a co-actor, that case won’t be considered for sentence disparity purposes.  Senior Judge Jackson wrote for a unanimous panel.

A1C Thompson pleaded guilty to using ecstasy and marijuana on divers occasions.  At a GCM, he was hammered with confinement for a year, a BCD, total forfeitures, and reduction to E-1.  The CA reduced the confinement by three months in an act of clemency.

AFCCA first rejects some highly case-specific IAC allegations.  The court then addresses the sentence disparity issue.

The court notes that “there is little doubt that A1C JC and A1C JG were the appellant’s co-actors.”  The court continues:

[A]ppellant was court-martialed for his drug use but A1C JG received only non-judicial punishment for his drug use.  Under such circumstances, a sentence comparison is warranted with A1C JG’s case.  Conversely, a sentence comparison is not warranted with A1C JC’s case because there is no evidence that a final disposition has been made in his case, and a sentence comparison of closely related cases is warranted only in cases with a final disposition.

Id., slip op. at 6 (internal citation omitted).

AFCCA then drops a footnote observing: 

Although Airman First Class (A1C) JC testified at the appellant’s court-martial that he had not been tried or held criminally accountable for his crimes and did not expect to be held criminally accountable, there is no evidence in the record that his superiors will not hold him criminally accountable.  We refuse to speculate why A1C JC had not been held criminally accountable for his crimes and reach the only finding supported by the record–there has not been a final disposition in his case.

Id., slip op. at 6 n.6.

AFCCA holds that  there’s a rational basis for the difference between A1C Thompson’s and A1C JG’s punishments and concludes that A1C Thompson’s sentence is appropriate.

2 Responses to “AFCCA issues opinion on sentence disparity analysis”

  1. Cloudesley Shovell says:

    I’m not entirely sure that AFCCA used the correct standard to decide this case, though ultimately it doesn’t matter to the outcome, but what’s the fun of comenting if one cannot pick nits and quibble?

    AFCCA used the sentence uniformity/disparity/appropriateness standard set forth in US v. Lacy, 50 MJ 286 (CAAF 1999). However, as CAAF made clear in the very next case published in the MJ reporter after Lacy, one only compares sentences in cases, not dispositions. US v. Noble, 50 MJ 293 (CAAF 1999). “The present case is not one of those ‘rare instances’ involving ‘disparate sentences adjudged in closely related cases.’ SSgt M was not tried, convicted, or sentenced. There is no court-martial record of findings and sentence that can be compared, which means that the issue of sentence uniformity is not present in this case.” Noble, 50 MJ at 294-95.

    CAAF continues in the very next paragraph: “The issue here involves differences in initial disposition rather than sentence uniformity. Given the broad and highly discretionary authority of the Courts of Criminal Appeals on the issue of sentence appropriateness, an appellant may bring to the attention of those courts other cases with differing disposition decisions. That type of information, when it does not raise the legal issue of a discriminatory or otherwise illegal prosecution or referral, is subject to such consideration as the experienced and mature judges of those courts deem appropriate.” Id.

    AFCCA correctly declined to do a sentence disparity analysis against one co-actor who apparently faced no disciplinary proceedings (A1C JC), because there was no sentence to compare. However, AFCCA purported to do a sentence disparity analysis with A1C JG, who received NJP.

    AFCCA tested the “disparity” for a rational basis for the difference, and found such a basis. If a rational basis is what the “experienced and mature judges” decided to use, I guess technically the AFCCA complied with Noble, but it would have been nice to see them cite the controlling case.

    Interestingly, Lacy has been cited literally hundreds of times by the CCAs, and mostly by the AFCCA. Noble, on the other hand, has been cited less than 25 times, most often by NMCCA (about half the total). I’ll leave to other experienced and mature CAAFlog commenters to divine the reasons behind the citation disparity. I’m sure there is a rational basis for it (or at least good and cogent reasons)!

  2. Publius says:

    I agree. I think Lacy is normally cited because most cases in which the issue is raised don’t involve different dispositions, just different sentences.