Opinion Analysis: A CCA has the power to disapprove a mandatory minimum punitive discharge, in United States v. Kelly
CAAF decided the Army case of United States v. Kelly, __ M.J. __, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.
Chief Judge Stucky writes for a unanimous court.
Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.
Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).
“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:
Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.
The court later specified a second issue involving improper argument by the trial counsel:
In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?
Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.
The heart of CAAF’s reasoning is found in these two paragraphs:
In the instant case, Article 56(b), UCMJ, and Article 66(c), UCMJ, initially appear to be in tension. However, the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities. We have previously elected to treat mandatory minimum sentences as such. For example, in United States v. Jefferson, this Court declined to construe Article 118’s mandatory minimum punishment as an absolute minimum, and instead interpreted it as applying only to the court-martial, thus leaving appellate authorities “free to reappraise the appropriateness of the sentence in the normal exercise of their review powers.” 7 C.M.A. 193, 194, 21 C.M.R. 319, 320 (1956). On that basis, this Court concluded that a board of review could ameliorate a mandatory sentence without first changing the findings of guilty. Id.; see Atkins, 8 C.M.A. at 79, 23 C.M.R. at 303 (“[T]he desire of Congress to have the board of review determine the appropriateness of a sentence is so strongly stated we concluded that a board of review can even ameliorate a sentence which the Uniform Code makes mandatory for the court-martial.”).
Such treatment gives full force and effect to both Article 56(b), UCMJ, and Article 66(c), UCMJ. Moreover, it recognizes that Congress has vested the CCAs with the oft-cited “awesome, plenary, de novo power of review,” Cole, 31 M.J. at 272, that effectively gives them “carte blanche to do justice.” Claxton, 32 M.J. at 162.
Slip op. at 4-5. Chief Judge Stucky also observes:
It has not escaped our attention that, while Congress has made many changes to the UCMJ over the years, Congress has left Article 66(c) largely intact. Its language functionally unchanged since the UCMJ’s enactment in 1950. Although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs.
Slip op. at 5-6 (citations omitted).
The opinion concludes:
For the foregoing reasons, we decline the Government’s invitation to read an implied repeal of the CCAs’ vast powers into Article 56(b), UCMJ. . . . We trust that Congress knows how to limit the broad powers of the CCAs and note that Congress remains free to do so if it so chooses. To date, Congress has not so chosen. Until (and unless) it does, we hold that a CCA has the power to disap-prove a mandatory minimum sentence set forth in Article 56, UCMJ.
Slip op. at 6.
• ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Amicus brief – A.F. App. Def. Div.
• Amicus brief – N.M. App. Def. Div.
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis