U.S. v. Kelly, 77 M.J. 404

Trial Stages: Sentence and Punishment: Mandatory

1. in 2013, Congress amended Article 56, UCMJ, to provide for mandatory minimum punitive discharges in cases involving rape, sexual assault, forcible sodomy, and attempts to commit such offenses
2. Article 56(b), UCMJ, 10 USC § 856(b) (2012 & Supp I 2014), which mandates that an accused convicted of certain offenses be punished with a dismissal or dishonorable discharge, does not restrict a CCA’s ability to review a mandatory minimum sentence for sentence appropriateness, given the unrivaled statutory powers of the CCAs under Article 66(c), UCMJ, 10 USC § 866(c) (2012), which vests the CCAs with broad discretionary power to review sentence appropriateness; the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities; although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs; Article 56(b), UCMJ, does not impliedly repeal the CCAs’ vast powers; presumably, Congress was aware of Article 66(c)’s broad scope when it enacted Article 56 and thus would have explicitly limited Article 66(c) review if it so desired; accordingly, a CCA has the power to disapprove a mandatory minimum sentence set forth in Article 56, UCMJ

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. as Article I courts established at the behest of Congress by the Judge Advocates General, CCAs enjoy limited jurisdiction, and are circumscribed by the Constitution to the powers specifically granted to them by statute
2. given its awesome, plenary, de novo power of review, a CCA has a carte blanche to do justice

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

1. Article 56(b), UCMJ, 10 USC § 856(b) (2012 & Supp I 2014), which mandates that an accused convicted of certain offenses be punished with a dismissal or dishonorable discharge, does not restrict a CCA’s ability to review a mandatory minimum sentence for sentence appropriateness, given the unrivaled statutory powers of the CCAs under Article 66(c), UCMJ, 10 USC § 866(c) (2012), which vests the CCAs with broad discretionary power to review sentence appropriateness; the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities; although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs; Article 56(b), UCMJ, does not impliedly repeal the CCAs’ vast powers; presumably, Congress was aware of Article 66(c)’s broad scope when it enacted Article 56 and thus would have explicitly limited Article 66(c) review if it so desired; accordingly, a CCA has the power to disapprove a mandatory minimum sentence set forth in Article 56, UCMJ
2. it is a settled premise that in exercising its Article 66(c) statutory mandate, a CCA has discretion to approve only that part of a sentence that it finds should be approved, even if the sentence is correct as a matter of law; given its awesome, plenary, de novo power of review, a CCA has a carte blanche to do justice

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

1. the construction of a statute is a question of law that an appellate court reviews de novo
2. it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme; as such, courts typically seek to harmonize independent provisions of a statute

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme; as such, courts typically seek to harmonize independent provisions of a statute