U.S. v. Sothen, 54 M.J. 294

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. Court of Criminal Appeals is required to engage in sentence comparison only in those rare instances in which sentence appropriateness can fairly be determined only by reference to disparate sentences adjudged in closely related cases
2. an appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant’s case, and that the sentences are “highly disparate”; if the appellant meets that burden, or if the court raised the issue on its own motion, the burden shifts to the government to show a rational basis for the disparity
3. there is nothing in the plain language of Article 66, in its legislative history, or in case law of Court of Appeals for the Armed Forces that would preclude the Courts of Criminal Appeals from engaging in sentence comparison when there is a closely related case from the civilian sector (involving a civilian co-actor, for example) with a highly disparate sentence
4. after plotting to have his wife murdered, appellant was sentenced to, inter alia, 25 years’ confinement; his civilian co-actor received a sentence including, inter alia, 3 years’ confinement; Court of Criminal Appeals did not abuse its discretion with respect to sentence appropriateness and articulated a rational basis for this sentence disparity by citing the following reasons: (1) the parties were tried by two different sovereigns; (2) sentence comparison between civilian and military cases is less persuasive than comparison among courts-martial in light of the differences between civilian and military approaches to sentencing and punishment; (3) appellant was convicted of multiple serious offenses, while his co-actor was convicted only of a single count of solicitation; (4) the charges against appellant were contested, while the conviction of the civilian co-actor was based on a voluntary, negotiated plea of guilty; and (5) the sentence of appellant’s co-actor reflected the fact that she had agreed to assist the prosecution by testifying against appellant

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. Court of Appeals for the Armed Forces review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow issue of whether there has been an obvious miscarriage of justice or abuse of discretion

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant’s case, and that the sentences are “highly disparate”; if the appellant meets that burden, or if the court raised the issue on its own motion, the burden shifts to the government to show a rational basis for the disparity
2. Court of Appeals for the Armed Forces review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow issue of whether there has been an obvious miscarriage of justice or abuse of discretion