CAAF will hear oral argument in two Army cases on Tuesday, January 14, 2020, beginning at 9:30 a.m. Both cases challenge the Army CCA’s reassessment of the sentence when the CCA also remanded to the convening authority with a rehearing authorized for convictions that were reversed.

First CAAF will hear argument in United States v. Wall, No. 19-0143/AR (CAAFlog case page), which presents two issues:

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Then CAAF will hear oral argument in United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), which also presents two issues:

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

The primary difference between the cases is their procedural posture. In Wall, the convening authority has not yet acted on the CCA’s decision, while in Gonzalez the convening authority has acted (and the CCA affirmed that action).

In the first case, Specialist (E-4) Wall was convicted of the rape of one woman and the sexual assault of another (both fellow enlisted soldiers), by a general court-martial composed of a military judge alone, and sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. During the trial the military judge allowed the prosecution to use the charged offenses for propensity purposes, a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Considering that error on appeal, the CCA found that it was prejudicial for only the sexual assault conviction, and the court set aside that finding and the sentence, authorizing a rehearing. But the CCA also expressed, in a footnote, its:

satisf[action] that the sentence adjudged, absent Specification 1 of The Charge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

United States v. Wall, No. 20160235, slip op. at 8 n.4. (A. Ct. Crim. App. Oct. 5, 2018) (link to slip op.). The ability of a court of criminal appeals to determine that a certain sentence would have been adjudged notwithstanding an error – and to approve that sentence rather than order a rehearing to determine a new sentence – stems from the CCA’s Article 66 power to affirm such part or amount of the sentence as the CCA finds correct, and no less than the Supreme Court has affirmed that ability. See Jackson v. Taylor, 353 U.S. 569 (1957). More recently, CAAF articulated a series of factors for a CCA to use to determine whether it can reassess the sentence in a particular case (or whether the errors identified on appeal so significantly change the case that a new sentencing proceeding must be conducted), in United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. Dec. 18, 2013) (CAAFlog case page).

However, there’s a catch. If a CCA reverses a conviction it can’t both authorize a rehearing on the reversed conviction and also approve a reassessed sentence. Rather, the CCA must either authorize a rehearing (that might result in a new conviction and will result in a new sentence), or approve a sentence and dismiss the charge for which the conviction was reversed. See Article 66(d) (pre-2019); Article 66(f) (2019).

But in Wall (and Gonzalez), the Army CCA found a third option. The CCA reversed a conviction and reassessed the sentence, but it did not approve the sentence as reassessed. Rather, it gave the convening authority three choices:

The same or a different convening authority may:

1) order a rehearing on Specification 1 of The Charge and the sentence;

2) dismiss Specification 1 of The Charge and order a rehearing on the sentence only; or

3) dismiss Specification 1 of The Charge and reassess the sentence, affirming no more than a dishonorable discharge, confinement for ten years, total forfeiture of all pay and allowances, and reduction to E-1.

Slip op. at 8 (paragraphing added). Wall then petitioned CAAF, which initially granted review (of an issue it specified) to determine whether the CCA may reassess the sentence when it also orders a rehearing. But a few months later CAAF specified the second issue, which reflects the fact that the convening authority has not yet chosen from the options presented by the CCA (and that the result of that choice might moot the CCA’s reassessment).

In the second case, Private (E-1) Gonzalez was convicted (after a contested trial) of sexual assault by a general court-martial composed of a military judge alone. Gonzalez also pleaded guilty to an orders violations and two specifications of abusive sexual contact. The military judge sentenced Gonzalez to confinement for ten years and a dishonorable discharge. But on appeal the Army CCA reversed the sexual assault conviction (the contested charge) – also because of a Hills error – and then took the same action as in Wall; it reassessed the sentence and remanded the case with three choices:

The same or a different convening authority may:

1) order a rehearing on Specification 2 of Charge III and the sentence;

2) dismiss Specification 2 of Charge III and order a rehearing on the sentence only;

3) dismiss Specification 2 of Charge III and reassess the sentence, affirming no more than a dishonorable discharge and confinement for six years.”

United States v. Gonzalez, No. 20160363, slip op. at 8 (A. Ct. Crim. App. Jul. 3, 2018) (link to slip op.).

Where the cases differ is in what happened next. While Wall immediately petitioned CAAF for review, Gonzalez did not immediately petition, nor did he object to the convening authority taking the option of reassessing the sentence. Rather, Gonzalez specifically requested that the convening authority reassess the sentence (though to no more than two years of confinement). The convening authority did reassess the sentence, however to the full six years that the CCA found appropriate. The Army CCA affirmed and then CAAF granted review.

Wall and Gonzalez both make the same basic argument against the CCA reassessing the sentence in a case where it also authorizes a rehearing (and, in fact, they are both represented by the same judge advocate from the Army Defense Appellate Division).

Wall’s brief to CAAF argues that:

the Army Court short circuited the remand and review process by instructing the convening authority that he could reassess the sentence under the specific circumstances, and further, by advising that ten years was an appropriate sentence that purged the record of error. This is at best an advisory opinion to the convening authority, in contravention of this Court’s jurisprudence prohibiting advisory opinions.

Wall, App. Br. at 7. Gonzalez’s brief makes the exact same argument, substituting only six years for the ten years in Wall. See Gonzalez, App. Br. at 18. Both briefs also assert that “the Army Court’s pronouncement that a reassessment of [ten][six] years is appropriate entice[s][d] the convening authority to abdicate his proper role in the process.” Wall, App. Br. at 9; Gonzalez, App. Br. at 21.

But neither Wall nor Gonzalez challenge the ability of the convening authority to reassess the sentence on his own. That power isn’t granted to a convening authority by the UCMJ, but rather arose from a provision that was in the Manual for Courts-Martial from 2004-2019. Specifically, Executive Order 13365 of December 3, 2004, promulgated R.C.M. 1107(e)(1)(B)(iv):

Sentence reassessment. If a superior authority has approved some of the findings of guilty and has authorized a rehearing as to other offenses and the sentence, the convening authority may, unless otherwise directed, reassess the sentence based on the approved findings of guilty and dismiss the remaining charges. Reassessment is appropriate only where the convening authority determines that the accused’s sentence would have been at least of a certain magnitude had the prejudicial error not been committed and the reassessed sentence is appropriate in relation to the affirmed findings of guilty.

The provision was relocated in 2016 (by Executive Order 13730) to R.C.M. 1107(e)(2)(B)(iii), and then it was deleted in the 2019 Manual. CAAF was offered an amicus curiae brief (from another Army appellant that I represent in my personal capacity) in both Wall and Gonzalez challenging the validity of that provision and the power of a convening authority to conduct such a reassessment, but the court denied the motions to file.

The Army Government Appellate Division’s briefs defend the Army CCA’s action as merely putting an upper limit on the sentence that can only benefit the servicemember. In Wall the Government Division writes:

Appellant’s complaint would might be colorable had the Army Court set forth a minimum sentence that the convening authority must impose. However, the only limitation imposed benefits appellant: Unless the convening authority elects to conduct a rehearing, appellant’s confinement has been reduced by at least one-third, and the convening authority might reassess the sentence to impose even less confinement.

Wall, Gov’t Div. Br. at 14. And in Gonzalez it writes:

the Army Court’s guidance did not cause the CA to “abdicate his proper role” on remand by improperly influencing his reassessment. (Appellant’s Br. 21). The President sets a maximum punishment for all offenses listed under the UCMJ and leaves to the proper authorities the discretion to select appropriate sentences within those guidelines. In the same way, it was not an improper infringement on the CA’s discretion for the Army Court to cap a sentence of confinement which may have arisen from reassessment. Accordingly, the CA performed an independent reassessment. The CA’s memorandum for record accompanying the action states that he considered the Army Court’s opinion, his SJA’s reasoned legal advice, and appellant’s Rule for Courts-Martial (R.C.M.) 1105 submission, which included a three-page memorandum and twenty-one enclosures, before he took action. (JA 191). There is no evidence that appellant received anything but “an individualized, legally appropriate, and careful review of his sentence by the [CA].” United States v. Fernandez, 24 M.J. 77, 78 (C.M.A. 1987).

Gonzalez, Gov’t Div. Br. at 14-15.

Yet the real issue in these cases might be timing, and not whether the CCA did something improper when it reassessed and remanded. Specifically, Wall’s complaint may be too early, while Gonzalez’s complaint may be too late.

Wall’s case has not yet returned to the convening authority for one of the three choices: full rehearing, rehearing on sentence alone, or reassessment by the convening authority. Two of those three choices – either kind of rehearing – eliminate Wall’s complaint, because after a rehearing there will be a new sentence based on new evidence with a new record, and so the CCA’s reassessment will be irrelevant. Only the third choice – reassessment by the convening authority – gives effect to any impropriety in the CCA’s reassessment, but even then it probably wouldn’t matter if the convening authority were to approve a significantly lighter sentence. Because of that, the Government Division argues:

In this case, the convening authority has yet to take action, let alone reassess appellant’s sentence in a manner presenting a colorable claim of prejudice. Moreover, addressing the petition prematurely overlooks two other important considerations. First, it runs the risk of negating the possibility that even if appellant’s disfavored option is selected, his concerns could be ameliorated nonetheless by a favorable reassessment. Second, given the punitive discharge statutorily attached to appellant’s intact rape conviction, his case will be forwarded for automatic review under Article 66 regardless of the path ultimately taken. See Manual for Courts-Martial, United States (2016 ed.) pt. IV, ¶ 45.e(1). If appellant believes himself aggrieved by either the sentence approved by the convening authority or a subsequent Army Court decision, he can then properly petition this Court for review under Article 67. Until such time, appellant will be unable to establish any prejudice from the Army Court’s decision beyond pure speculation, his claim will be premature, and this Court should deny his petition in keeping with its recent order in United States v. Steele, 2019 LEXIS 717 (24 Sep. 2019).

Wall, Gov’t Div. Supp. Br. at 4-5.

Gonzalez’s case presents the exact opposite set of facts, as his case did return to the convening authority and was reassessed (to the maximum sentence allowed under the CCA’s opinion), and Gonzalez even requested that reassessment (hoping for an even lower sentence). That invites a finding of waiver, and the Government Division’s brief points the court in that direction:

Appellant waived his right to object to the Army Court’s delegation of authority in his R.C.M. 1105 submission. After the Army Court’s ruling, appellant requested that the CA “reassess the sentence” without rehearing. (JA 184) (emphasis added). Then, appellant argued that “the maximum sentence authorized by [the Army Court was] disproportional to the misconduct.” (JA 186). Taken together, these statements indicate appellant believed that: (1) the CA was within his authority to reassess the sentence; and (2) the Army Court was within its discretion to set a “maximum sentence authorized” for the reassessment.

Gonzalez, Gov’t Div. Supp. Br. at 19 (emphasis in original).

Gonzalez’s brief, however, doesn’t address the fact that he requested reassessment by the convening authority. Instead, it argues that he was not required raise his objection to the CCA’s reassessment at any stage prior to his petition to CAAF. While it’s true that CAAF often grants review of issues not considered by a CCA, I think it’s pretty clear that CAAF isn’t asking if Gonzalez waived or forfeited the appellate issue by not raising it to the CCA first. Rather, the specified issue asks if Gonzalez waived or forfeited his objection to the Army Court’s instructions to the convening authority. Those instructions were the three choices (full rehearing, partial rehearing, or reassessment). Gonzalez’s brief avoids answering that question.

Gonzalez was originally sentenced to confinement for ten years. The CCA set aside that sentence and returned the case to the convening authority for further action. Had the CCA done only that (and not also reassessed the sentence), then the convening authority might have simply reassessed the sentence to the same ten years. But the CCA did more; it reassessed the sentence and limited any further reassessment by the convening authority to no more than six years. That was a sizeable reduction in Gonzalez’s sentence with the possibility of even further reduction by the convening authority. Gonzalez not only did not complain about that process and possibility, he actively took advantage of it by specifically asking the convening authority to reassess to an even lower sentence.

That certainly invites a finding of waiver.

Case Links (Wall):
ACCA opinion
Blog post: CAAF grants review
Blog post: CAAF questions ripeness
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s supplemental brief
Appellee’s (Gov’t Div.) supplemental brief
Blog post: Argument preview

Case Links (Gonzalez):
ACCA opinion
ACCA opinion after remand
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Disclosure: As discussed in this argument preview, I represent an appellant who moved to file an amicus brief in support of the appellants in both of these cases.

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