Opinion Analysis: The court-martial sentence must run concurrently with the federal sentence, in United States v. Mooney
CAAF decided the Air Force case of United States v. Mooney, __ M.J. __, No. 17-0405/AF (CAAFlog case page) (link to slip op.), on March 12, 2018. The court concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.
Judge Sparks writes for a unanimous court.
Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.
Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.
The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court. The Air Force CCA affirmed in a published decision, and CAAF granted review to determine:
Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.
In yesterday’s decision CAAF rejects the argument that Mooney’s guilty plea waived this issue and it interprets Article 57a (10 U.S.C. § 857a) to hold that while “Congress expressly provided for deferment when a member is in custody of a state or foreign country, they intended to exclude when [as in this case] a member is in custody of the federal government.” Slip op. at 9.