U.S. v. Swisher, 85 M.J. 1

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

1. CCAs are empowered to review cases for sentence appropriateness, and a CCA's power to review a case for sentence appropriateness includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions
2. the CCAs typically have discretion to consider and compare other sentences when they are reviewing a case for sentence appropriateness and relative uniformity
3. generally speaking, neither Article 66[(d)(1), UCMJ, nor CAAF precedents requires the CCAs to engage in sentence comparison with specific cases; importantly, however, this general rule is subject to one exception; that is, the CCAs are required to engage in sentence comparison in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases
4. with regard to sentence appropriateness at a CCA, an appellant bears the burden of demonstrating that any cited cases are closely related to his or her case and that the sentences are highly disparate; if the appellant meets that burden, or if the court raises the issue on its own motion, then the government must show that there is a rational basis for the disparity
5. in this case, where appellant contended at the CCA that his sentence was highly disparate when compared to the sentence awarded to his civilian co-actor, the CCA was required to decide at the outset of its analysis whether appellant had borne the burden of showing that his case and that of his co-actor were closely related; if the cases were closely related, the CCA then had to proceed to determine whether appellant had shown that the sentences imposed in each case were highly disparate, and if so, whether there was a rational basis for this disparity
6. when a CCA confronts the issue of whether the sentence in a court-martial case is inappropriate in the light of a sentence imposed in a civilian case, that court must conduct an initial assessment of whether the cases are closely related
7. in this case, the CCA abused its discretion in denying appellant's complaint of sentence disparity by declining to compare his sentence with that of a civilian co-actor because his co-actor's sentence was awarded by a civilian jurisdiction and in failing to determine at the outset whether appellant met his burden of showing that his case and the case of his civilian co-actor were closely related; the mere fact that the co-actor's case was the product of a civilian criminal proceeding was not necessarily dispositive of the issue of whether the cases were closely related; a civilian sentences may serve as a basis for sentence comparison; here, because the CCA did not decide whether appellant's case and his co-actor's case were closely related, the CCA abused its discretion because its decision was influenced by an erroneous view of the law
8. the fact that a closely related case involved a civilian conviction and sentence rather than a military conviction and sentence may be weighed when determining whether the sentences were truly disparate and/or whether there was a rational basis for the disparity
9. cases are closely related for sentence appropriateness review if they fit within at least one of three categories and one of those categories is when the individuals were co-actors involved in a common crime
10. CCAs have broad discretion to decide whether individuals are co-actors, and they are not compelled to accede to the concessions of a party on this issue; such a determination is necessarily fact driven

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

1. the CAAF's review of decisions by the CCAs on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; there is an abuse of discretion, in relevant part, when a court's decision is influenced by an erroneous view of the law

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

1. the CAAF's review of decisions by the CCAs on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; there is an abuse of discretion, in relevant part, when a court's decision is influenced by an erroneous view of the law