You are on page 1of 4

IN THE U.S.

NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS


WASHINGTON NAVY YARD
WASHINGTON, D.C.

BEFORE

CHARLES Wm. DORMAN C.J. VILLEMEZ R.C. HARRIS

UNITED STATES

v.

Michael D. BAIER
Private First Class (E-2), U.S. Marine Corps

NMCCA 200200476 Decided 23 October 2003

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

AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT.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 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 E-
1, 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.

3
For the Court

R.H. TROIDL
Clerk of Court