VILLEMEZ UNITED STATES v. Michael D. BAIER Private First Class (E-2), U.S. Marine Corps NMCCA 200200476 Decided 23 October 2003 R.C. HARRIS

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 C. WILLIAMS, USMC, Appellate Defense Counsel Capt WILBUR LEE, USMC, Appellate Government Counsel

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 LSD on myriad occasions, wrongful distribution of LSD, 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.

After carefully considering the record of trial, the appellant's summary assignment of error, and the Government's answer, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ. Sentence Appropriateness In the appellant’s summary assignment of error, he asserts that a sentence including a dishonorable discharge is inappropriately severe for him and his offenses. The appellant avers that this Court should approve only so much of the sentence as provides for confinement for 30 months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a bad-conduct discharge. We disagree. It is well-settled that a court-martial is free to impose any authorized sentence that it determines is fair and just. United States v. Turner, 14 C.M.A. 435, 437, 34 C.M.R. 215, 217 (1964); RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2000 ed.). However, on review, this Court "may affirm only such findings of guilty and the sentence of 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 only with determining whether justice was properly administered and whether the accused received the punishment he deserved. United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). In contrast, clemency, which involves bestowing mercy, is the proper purview for the convening authority. Id.; R.C.M. 1107(b). This Court may disapprove any portion of a sentence that it deems inappropriately severe. United States v. Landford 6 C.M.A. , 371, 376, 20 C.M.R. 87, 92 (1955). An appropriate sentence results from an "individualized consideration of the particular accused on the basis of the nature and seriousness of the offense and the character of the offender." United States v. Rojas 15 , M.J. 902, 919 (N.M.C.M.R. 1983)(citing United States v. Snelling , 14 M.J. 267 (C.M.A. 1982)), aff’d 20 M.J. 330 (C.M.A. 1985). , When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless “the harshness of the sentence is 2

so disproportionate to the crime as to cry out for equalization." Rojas, 15 M.J. at 919. Despite any extenuating and/or mitigating circumstances in the appellant’s case, a dishonorable discharge is appropriate given the crimes the appellant committed. See Charge Sheet. First, the appellant conspired with other service members to be the go-between with civilians to distribute ecstasy and cocaine. Second, he acted as a go-between on a myriad number of occasions that resulted in his procurement and distribution of LSD, ecstasy, and cocaine to other service members for profit. And, third, he himself personally used LSD on a myriad number of occasions. As in United States v. Johnson 58 M.J. 509 , (N.M.Ct.Crim.App. 2003), these were not the appellant’s first (or even second) UCMJ violations. We note that the appellant availed himself of the opportunity to request clemency from the convening authority. See Post-Trial Matters of 15 Aug 2001. Furthermore, the military judge, in adjudging the sentence, and the convening authority, in approving the sentence, were well aware of any extenuating and/or mitigating circumstances. After a careful review of the record, we conclude that the appellant’s criminal conduct warrants a dishonorable discharge. The CA approved the appellant’s dishonorable discharge, thus determining that he considered that punitive discharge to be appropriate. CA’s Action of 24 Aug 2001. The appellant’s assignment of error amounts to nothing more than a request for clemency, which is the prerogative of the CA. Healy, 26 M.J. at 395-96. The appellant received the individual consideration required based on the seriousness of his offenses and his own character, which is all the law requires. Rojas, 15 M.J. at 919. As such, we decline to grant relief. Conclusion Accordingly, we affirm the findings and the sentence, as approved by the convening authority.


For the Court

R.H. TROIDL Clerk of Court