IN THE U.S. NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON NAVY YARD WASHINGTON, D.C. BEFORE W.L. RITTER C.L.

SCOVEL UNITED STATES v. Michael D. BAIER Private First Class (E-2), U.S. Marine Corps NMCCA 200200476 Decided 17 March 2005 M.J. SUSZAN

Sentence adjudged 29 January 2001. Military Judge: R.K. Fricke. Review pursuant to Article 66(c), UCMJ, of General Court-Martial convened by Commanding General, Marine Corps Base, Hawaii, Kaneohe Bay, HI. Maj ANTHONY WILLIAMS, USMC, Appellate Defense Counsel LCDR ERIC MCDONALD, JAGC, USN, Appellate Defense Counsel Capt WILBUR LEE, USMC, Appellate Government Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT.

PER CURIAM: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of conspiracy to wrongfully distribute ecstasy and cocaine, wrongful use of lysergic acid diethylamide (LSD) on myriad occasions, wrongful distribution of LSD, 3,4-methylenedioxymethamphetamine (ecstasy), and cocaine on myriad occasions, and breaking restriction, in violation of Articles 81, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 912a, and 934. The appellant was sentenced to confinement for 30 months, reduction to pay grade E1, and a dishonorable discharge. The convening authority approved the adjudged sentence and, pursuant to a pretrial agreement, suspended confinement in excess of 24 months for 12 months from the date of trial.

This case is before us on remand. A panel of this court previously reviewed the record, including the appellant's contention that the sentence was unduly severe, and affirmed the findings and sentence in an unpublished opinion. The Court of Appeals for the Armed Forces (CAAF) affirmed the findings. However, finding that this court recited an incorrect standard from a previous decision that had later been overturned, the CAAF set aside the sentence and remanded the case for a new sentence appropriateness review by this court. United States v. Baier 60 , M.J. 382 (C.A.A.F. 2005). No additional assignments of error have been submitted by the appellant's defense counsel for this second review. We have carefully reviewed the record of trial, the appellant's summary assignment of error, and the Government's response. Since the findings in this case have already been affirmed by our superior court, our review on remand is limited to the issue of the lawfulness and appropriateness of the adjudged sentence. Sentence Appropriateness The appellant contends that a dishonorable discharge is inappropriately severe in his case. We disagree. A court martial is free to impose any legal sentence it deems appropriate. United States v. Turner 34 C.M.R. 215, 217 , (C.M.A. 1964); RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2000 ed.). On review, a court of criminal appeals "may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." Art. 66(c), UCMJ. Courts of criminal appeals are tasked with determining sentence appropriateness, rather than granting clemency. United States v. Healy 26 M.J. 394, 395-96 , (C.M.A. 1988); R.C.M. 1107(b). Clemency, which involves bestowing mercy, is the prerogative of the convening authority. An appropriate sentence results from an "individualized consideration" of the nature and seriousness of the offense and the character of the accused. United States v. Snelling 14 M.J. , 267, 268 (C.M.A. 1982).

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During the presentencing hearing, the defense presented a number of letters from friends and family attesting to the appellant's good character, as well as a supportive letter from the appellant's Congressman. The defense also presented expert testimony from a clinical and forensic psychologist regarding the appellant's attention deficit hyperactive disorder (ADHD) and drug dependency. In his unsworn statement, the appellant explained how he chose to involve himself in substance abuse, and expressed his remorse. On the other hand, the appellant engaged in a series of serious offenses, involving a conspiracy to distribute controlled substances, including to other Marines. The appellant admitted that he facilitated a number of such transactions, distributing LSD, ecstasy, and cocaine, and that two of these occasions occurred in a barracks on board Marine Corps Base Hawaii. The appellant further admitted to wrongfully using LSD on eight occasions while on active duty. Taking all of these factors into consideration, we find the sentence, including the dishonorable discharge, fully appropriate for this offender and his offenses. A dishonorable discharge is reserved for the more serious offenses, such as "offenses usually recognized in civilian jurisdictions as felonies[.]" R.C.M. 1003(b)(8)(B). Given the appellant's voluntary and extensive involvement in a criminal drug conspiracy that operated aboard a Marine Corps base, and mindful of the appellant's character and background, we are convinced that the adjudged punishment, including the dishonorable discharge, is appropriate in this case. We therefore affirm the sentence as correct in law and fact, and find that no error materially prejudicial to the substantial rights of the appellant was committed. See Articles 59(a) and 66(c), UCMJ.

For the Court

R.H. TROIDL Clerk of Court 3

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