U.S. v. Buber, 62 M.J. 476

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a CCA can reassess a sentence to cure the effect of prejudicial error where that court can be confident that, absent any error, the sentence adjudged would have been of at least a certain severity; where the CCA can be so convinced, then that court may reassess and affirm only a sentence of that magnitude or less
2. if the CCA can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; and the demands of Article 59(a) will be met; of course, even within this limit, the CCA will determine that a sentence it proposes to affirm will be appropriate, as required by Article 66(c), UCMJ; in short, a reassessed sentence must be purged of prejudicial error and also must be appropriate for the offense involved
3. to validly reassess a sentence to purge the effect of error, a CCA must be able to make a number of determinations; it must be able to discern the extent of the error’s effect on the sentence; the reassessment must be based on a conclusion that the sentence that would have been imposed at trial absent the error would have been at least of a certain magnitude; this conclusion about the sentence that would have been imposed must be made with confidence; no higher sentence than that which would have been imposed by the trial forum may be affirmed; and a dramatic change in the penalty landscape gravitates away from the ability to reassess

Trial Stages: Appeals: Remedies › Rehearing

1. in this case, the sentencing landscape changed dramatically as a result of the CCA’s decision; there were no longer findings of murdering and assaulting a child; there was no longer a maximum sentence that included confinement for life without eligibility for parole; instead, the sentencing body now had before it a single false official statement and a maximum sentence that included only five years of confinement; in light of this dramatic change in the sentencing landscape, the only fair course of action was to order a sentence rehearing

Trial Stages: Appeals: Remedies › Sentence reassessment

1. a CCA can reassess a sentence to cure the effect of prejudicial error where that court can be confident that, absent any error, the sentence adjudged would have been of at least a certain severity; where the CCA can be so convinced, then that court may reassess and affirm only a sentence of that magnitude or less
2. if the CCA can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; and the demands of Article 59(a) will be met; of course, even within this limit, the CCA will determine that a sentence it proposes to affirm will be appropriate, as required by Article 66(c), UCMJ; in short, a reassessed sentence must be purged of prejudicial error and also must be appropriate for the offense involved
3. to validly reassess a sentence to purge the effect of error, a CCA must be able to make a number of determinations; it must be able to discern the extent of the error’s effect on the sentence; the reassessment must be based on a conclusion that the sentence that would have been imposed at trial absent the error would have been at least of a certain magnitude; this conclusion about the sentence that would have been imposed must be made with confidence; no higher sentence than that which would have been imposed by the trial forum may be affirmed; and a dramatic change in the penalty landscape gravitates away from the ability to reassess

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

1. the CAAF will overturn a CCA’s reassessment only for obvious miscarriages of justice or abuses of discretion; appellant bears the burden of showing that the CCA’s reassessment of his sentence was an abuse of discretion
2. the CAAF will overturn the CCA’s reassessment of a sentence where it cannot be confident that the CCA could reliably determine what sentence the members would have imposed