On Monday CAAF granted review – but ordered no additional briefing – in the following case:
No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE CONCLUDED APPELLANT’S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.
No briefs will be filed under Rule 25.
The offense at issue is sexual assault in violation of Article 120(b)(2) (2012). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, and was sentenced to confinement for three years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge. The Air Force CCA affirmed the conviction in an unpublished decision available here.
The maximum authorized punishments under Article 120 are an issue because after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments (pursuant to Article 56) for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications). That failure prompted one military judge to rule that the maximum authorized punishment for a violation of Article 120(b) was the jurisdictional limit of a summary court-martial (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1). The Government appealed that decision and the NMCCA reversed in United States v. Commander Booker, Military Judge, 72 M.J. 787 (N-M. Ct. Crim. App. 2013) (discussed here), holding that by applying the sentence-determination provisions of R.C.M. 1003(c)(1)(B), the authorized punishment included a dishonorable discharge and confinement for at least 30 years. CAAF then denied review without prejudice to the right to raise the issue during normal appellate review (and then the accused pleaded guilty and apparently did not raise the issue again).
In Chero, the Air Force CCA adopted the NMCCA’s analysis from Booker:
Our colleagues in a sister-service court analyzed this same issue of the maximum imposable sentence for an offense that occurred after the enactment of the current Article 120, UCMJ, but before the publication of the President’s Executive Order establishing the maximum sentence for a sexual assault against an individual who was asleep, unconscious, or otherwise unaware. United States v. Booker, 72 M.J. 787 (N.M. Ct. Crim. App. 2013), appeal denied sub nom United States v. Schaleger, 73 M.J. 92 (C.A.A.F. 2013) (summary disposition). That court concluded that the maximum authorized punishment included 30 years confinement and a dishonorable discharge. Id. at 807. We find their reasoning highly persuasive and concur with both our Navy-Marine Corps Court colleagues and the trial judge.
United States v. Chero, No. 38470, slip op. at 7 (A.F. Ct. Crim. App. Apr. 28, 2015).