CAAF decided the Army case of United States v. Winckelmann, No. 11-0280/AR, 73 M.J. 11 (Winckelmann IV) (CAAFlog case page) (link to slip op.), on December 18, 2013, finding that the Army CCA did not abuse its discretion when it decided to reassess Appellant’s sentence rather than remand the case for a sentence rehearing. CAAF affirms the CCA and denies further relief to Appellant, whose original sentence included confinement for 31 years, but after two reassessments that term of confinement was reduced to eleven years.

Chief Judge Baker writes for the court. Judges Stucky and Ryan write separately, concurring in the result.

Appellant (a Lieutenant Colonel in the Army) was convicted in 2007, pursuant to his pleas of guilty at a general court-martial composed of officer members, of two specifications of conduct unbecoming an officer and two specifications of indecent acts with another in violation of Articles 133 and 134, UCMJ. Additionally, contrary to his pleas, he was convicted of two additional specification of conduct unbecoming an officer in violation of Article 133, and one specification of possession of child pornography, three specifications of attempted enticement of a minor (in violation of 18 U.S.C. § 2422(b)), two specifications of communicating indecent language, and two specifications of obstruction of justice, all in violation of Article 134. The military judge merged some of the offenses for sentencing and Appellant was sentenced by the members to confinement for 31 years, total forfeitures, and a dismissal.

The Army CCA set aside the sole specification of possession of child pornography and one of the three specifications of attempted enticement of a minor in a 2010 opinion (Winckelmann I), and then reassessed the sentence, reducing the period of confinement from 31 years to 20 years. CAAF then reviewed the case and set aside a second of the attempted enticement specifications, remanding the case for reconsideration of three of the Article 134 charges in light of Fosler, in a 2011 opinion (Winckelmann II) (CAAFlog case page). On remand, the CCA set aside two of the charges under Article 134 due to the Government’s failure to charge a terminal element, and again reassessed the sentence, reducing the term of confinement to eleven years, in a 2012 opinion (Winckelmann III).

Appellant then petitioned CAAF, arguing that rather than “reassess” the sentence, the CCA should have remanded the case for a sentence rehearing (an entirely new sentencing hearing, but where Appellant could not receive an approved sentence greater than the original sentence). CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals, after disapproving the findings of guilty for Charge IV and its Specifications and after considering this Honorable Court’s decision dismissing Specification 3 of Charge III, erred by reassessing appellant’s sentence to confinement, first from 31 years to 20 years (in their initial decision), and then from 20 years to 11 years (in a subsequent decision), rather than directing a sentence rehearing.

The Chief Judge’s majority opinion traces the history of sentence reassessments, beginning further back in time than my argument preview in this case. It starts with the Supreme Court’s consideration of a sentence reassessment in the military murder/rape habeas case of Jackson v. Taylor, 353 U.S. 569 (1957):

In Jackson v. Taylor, the appellant was convicted of premeditated murder and attempted rape, and received a life sentence. The board of review set aside the murder conviction, reassessed the sentence and affirmed a term of confinement of twenty years. Jackson argued before the Supreme Court that the board should have ordered a rehearing on sentence and that it lacked authority to impose the twenty-year sentence to confinement.

Slip op. at 7 (citations omitted). Jackson lost.

In Jackson the Supreme Court considered the nascent UCMJ (the Code took effect on May 31, 1951, and Jackson was tried eight days later, on June 8) and noted that Article 66(c) empowers a court of criminal appeals (then called a “board of review”) to “affirm . . . such part or amount of the sentence, as it finds correct . . . .” Slip op. at 7-8 (quoting Jackson, 353 U.S. at 576) (omissions in original). Chief Judge Baker explains that the Supreme Court’s decision in Jackson “conclusively established the review boards’ authority to reassess sentences in appropriate cases.” Slip op. at 9 (emphasis added). But the term “appropriate cases” does not appear in Jackson, and the practice of conducting a rehearing on just the sentence in some cases is the point that most significantly splits CAAF in Winckelmann.

Chief Judge Baker and the majority note that on the heels of Jackson, the CMA determined that “a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.” Slip op. at 9 (quoting United States v. Miller, 10 U.S.C.M.A. 296, 299 (1959)). Further, they emphasize that “this consistent practice has stood since 1959 without legislative amendment by Congress.” Slip op. at 9. And while sentence rehearings aren’t exactly commonplace, they occur fairly regularly.

But Judges Stucky and Ryan disagree on the authority to conduct “a rehearing limited to sentence,” with Judge Stucky writing:

Jackson specifically asked the Supreme Court to remand his case for a rehearing on sentence. 353 U.S. at 579. The Supreme Court refused:

We find no authority in the Uniform Code for such a procedure and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone.

Stucky con. op. at 2 (emphasis in original). Judge Stucky elaborates, “The statement in Jackson that there was no authority in the Uniform Code for a rehearing on sentence alone is neither confusing nor a mere dictum. It is a core holding that this Court is required to follow.” Stucky con. op. at 3 (citation omitted). And Judge Ryan agrees, writing:

But while the Supreme Court in Jackson appeared to hold squarely that rehearing on sentence alone was not a legally available option for the CCA, [Miller] nonetheless, and inexplicably, held precisely to the contrary. . .

Ryan con. op. at 1. Many military justice practitioners who are familiar with sentence rehearings – perhaps having even conducted a few – are likely surprised by these words. But while Judge Stucky all but explicitly calls for CAAF to abandon its support for sentence rehearings entirely, Judge Ryan is more circumspect, noting:

no party has asked us to overrule Miller, however flawed its holding is, let alone explained the reasons for ignoring stare decisis with respect to a case that has been the rule in this Court on an issue that is statutory, rather than constitutional in nature, for a very long time.

Ryan con. op. at 1-2. Still, Judges Stucky and Ryan practically invite a future effort from the Government to end the practice of sentence rehearings in favor of the dramatically more convenient reassessments by a CCA.

But Chief Judge Baker and the majority turn to “the standard by which a court of criminal appeals should determine its capacity to reassess a sentence,” as established in United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986), and restated in United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006). Slip op. at 9-10. That standard is whether the CCA “can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity.” Slip op. at 10. Chief Judge Baker wrote a separate concurring opinion in Moffeit that discussed numerous factors “that buttress the presumption that appellate judges can indeed reassess a sentence for the offense involved.” Moffeit, 63 M.J. at 43 (Baker, J. concurring). Now, in Winckelmann, the majority identifies four factors that “are among those illustrative, but not dispositive, points of analysis we would expect the lower appellate courts to consider when determining whether to reassess a sentence or order a rehearing.” Slip op. at 12.

These four “Winckelmann factors” are:

(1) Dramatic changes in the penalty landscape and exposure.

(2) Whether an appellant chose sentencing by members or a military judge alone. As a matter of logic, judges of the courts of criminal appeals are more likely to be certain of what a military judge would have done as opposed to members. This factor could become more relevant where charges address service custom, service discrediting conduct or conduct unbecoming.

(3) Whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses.

(4) Whether the remaining offenses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial.

Slip op. at 12-13 (citations omitted). And while the CCA “did not detail its analysis in this case,” the majority notes that it was not “obligated to do so.” Slip op. at 13. “Going forward, however, a reasoned analysis will be given greater deference than otherwise.” Slip op. at 13. Yet the majority avoids the charge that these factors are just dicta by finding that “the record reflects that the lower court considered the totality of circumstances, including the above factors, and applied the correct framework.” Slip op. at 13-14.

In my argument preview I predicted that “CAAF is ready to formalize [the Moffeit factors], or similar factors, as a framework for CAAF’s review of a CCA’s sentence reassessment.” The majority now does just that, by identifying four factors very similar to the Moffeit factors (listed here), announcing its expectation that the CCAs consider these factors, and explaining that if a CCA explains its reasoning then its decision will receive greater deference. So the Moffeit factors, that have been cited in literally hundreds of cases since they were identified by Chief Judge Baker in 2006, are now the four “Winckelmann factors.”

But Judges Stucky and Ryan highlight potential weaknesses in the majority’s new four-factor test. For example, Judge Stucky writes:

The majority also affirms a standard for the Courts of Criminal Appeals to follow in reassessing a sentence: The court can only affirm a sentence that did not exceed that which would have been adjudged by the court-martial, absent the error. But the Supreme Court rejected a similar argument in Jackson as “based on pure conjecture. No one could say what sentence the court-martial would have imposed [absent the error]. . . . Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate.” 353 U.S. at 578 (emphasis added).

Stucky con. op. at 3. The second Winckelmann factor (whether the appellant was sentenced by members or by a judge) has no place in this logic. Similarly, Judge Ryan writes:

I disagree with the majority that the CCA is required to explain its reasoning on the record in order to be afforded “greater” deference in its decision to reassess the sentence rather than order a rehearing on sentence.

Ryan con. op. at 2. Yet CAAF’s cannot enforce the four Winckelmann factors without conditioning its deference on a CCA’s explanation of its analysis.

In the end, Winckelmann IV strongly reaffirms the appropriateness of a court of criminal appeals conducting a sentence reassessment, while sounding a warning of the potential for a sea-change in the law of sentence rehearings. The clear winners in this case are the judges of the CCAs, who are entitled to either lots of deference or even more deference as they exercise their discretion to “determine[], on the basis of the entire record, [what sentence] should be approved.” Article 66(c), UCMJ.

Case Links:
Winckelmann I: ACCA opinion
Winckelmann II: CAAFlog case page
Winckelmann III: ACCA opinion
Winckelmann IV: Appellant’s brief
Winckelmann IV: Appellee’s (Government) brief
Winckelmann IV: Blog post: Argument preview
Winckelmann IV: CAAF argument audio
Winckelmann IV: CAAF opinion
Winckelmann IV: Blog post: Opinion analysis

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