             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                        ________________________

                             No. ACM 39267
                        ________________________

                           UNITED STATES
                               Appellee
                                    v.
                       Joshua I. BENFIELD
          Airman First Class (E-3), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                          Decided 10 July 2018
                        ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Dishonorable discharge, confinement for 10 years,
and reduction to E-1. Sentence adjudged 28 February 2017 by GCM
convened at Whiteman Air Force Base, Missouri.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Lieutenant
Colonel Nicole P. Wishart, USAF; Major Tyler B. Musselman, USAF;
Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge HARDING and Judge HUYGEN joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                        ________________________

SPERANZA, Judge:
   Pursuant to a pretrial agreement, Appellant pleaded guilty to sexually
assaulting JK by penetrating JK’s vulva with his penis without JK’s consent
                   United States v. Benfield, No. ACM 39267


and assaulting HMB by unlawfully touching HMB’s arm and shoulder with
his hand, in violation of Articles 120 and 128, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 920, 928. The military judge sitting as a general
court-martial sentenced Appellant to a dishonorable discharge, confinement
for 12 years, forfeiture of all pay and allowances, and reduction to E-1. The
convening authority only approved 10 years of confinement in accordance
with the pretrial agreement and did not approve the adjudged forfeitures.
The convening authority approved the remaining elements of the adjudged
sentence.
   Appellant now claims that his sentence is inappropriately severe when
compared to his co-actor’s sentence. We disagree.

                                 I. BACKGROUND
    Appellant invited JK to a bonfire at another Airman’s home. A number of
people, including Airman First Class (A1C) Kamron Rameshk, attended the
bonfire. After the bonfire, JK, A1C Rameshk, and Appellant went to Appel-
lant’s house. There, Appellant sexually assaulted JK. While Appellant pene-
trated JK vaginally without JK’s consent, A1C Rameshk forced his penis into
JK’s mouth. After Appellant finished his assault, A1C Rameshk raped JK by
using unlawful force to penetrate her vulva with his penis.
    Less than three weeks after sexually assaulting JK, Appellant assaulted
HMB after they both attended a party at another Airman’s home. HMB fell
asleep on a couch. She awoke to Appellant lying next to her and touching her
arm and shoulder without her consent.

                                 II. DISCUSSION
    Appellant was charged, inter alia, with raping JK. 1 However, Appellant
reached a pretrial agreement in which the convening authority agreed to not
proceed on the rape specification if Appellant pleaded guilty to the lesser-
included offense of sexual assault. In pertinent part, the agreement also re-
quired Appellant to plead guilty to assaulting HMB and testify under a grant


1 Appellant was charged with three specifications of rape for inserting his penis in
JK’s vulva, anus, and mouth by using unlawful force; abusive sexual contact for
touching JB’s thigh and kissing JB without her consent; abusive sexual contact for
touching HMB’s head and shoulder and kissing HMB without her consent; assault of
HMB; and obstruction of justice for wrongfully impeding the investigation into JK’s
allegations, in violation of Articles 120, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 928,
934.




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                  United States v. Benfield, No. ACM 39267


of immunity against A1C Rameshk. In exchange, the convening authority
agreed to withdraw and dismiss the remaining charges and specifications.
    At trial, Appellant providently pleaded guilty to the sexual assault of JK
and the assault consummated by a battery of HMB, as set forth in his pretri-
al agreement. The Government did not present evidence of the greater of-
fense of rape of JK, and all remaining charges and specifications were with-
drawn and dismissed in accordance with the pretrial agreement. Appellant
was found guilty in accordance with his pleas and found not guilty of rape.
Accordingly, Appellant faced a maximum sentence that included 30 years and
six months of confinement as well as a mandatory dishonorable discharge. 2
The military judge sentenced Appellant to the mandatory dishonorable dis-
charge, confinement for 12 years, forfeiture of all pay and allowances, and
reduction to E-1. Per the terms of the pretrial agreement, the convening au-
thority only approved ten years of confinement but approved the remaining
elements of the adjudged sentence.
     A1C Rameshk’s court-martial convened less than six months after Appel-
lant’s. A1C Rameshk pleaded not guilty to all charges and specifications
brought against him, including two specifications of raping JK. Appellant tes-
tified against A1C Rameshk as required in Appellant’s pretrial agreement.
A1C Rameshk was convicted by a military judge sitting as a general court-
martial of two specifications of rape for using unlawful force to penetrate JK’s
vulva and mouth; one specification of obstruction of justice; and one specifica-
tion of failing to obey a no-contact order, in violation of Articles 120, 134, and
92, UCMJ, 10 U.S.C. §§ 920, 934, 892. Thus, A1C Rameshk faced a maximum
punishment that included confinement for life without the eligibility of parole
as well as a mandatory dishonorable discharge. The military judge sentenced
A1C Rameshk to a dishonorable discharge, confinement for eight years, for-
feiture of all pay and allowances, and reduction to E-1. The convening author-
ity approved the adjudged sentence.
    On appeal, Appellant identifies the “significant sentencing disparity” be-
tween his sentence and A1C Rameshk’s sentence as a basis for relief. Appel-
lant argues that his case and A1C Rameshk’s case are closely related, yet
Appellant received a sentence that included two more years of confinement
even though he pleaded guilty and was convicted of fewer offenses. Accord-
ingly, Appellant posits that “[a]t the very minimum, [his] prison sentence


2The maximum confinement authorized for sexual assault is 30 years, while the
maximum confinement authorized for assault consummated by a battery is six
months.




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                   United States v. Benfield, No. ACM 39267


should be equal to A1C [Rameshk’s], although there is good cause to argue
that [it] should be significantly less[.]”
    The Government responded to Appellant’s claims by arguing that (1)
“[e]ven if Appellant’s case is closely related to A1C [Rameshk’s]s case, Appel-
lant has not met his burden of demonstrating that his sentence is ‘highly dis-
parate’” and (2) “[e]ven if this Court finds Appellant’s sentence is ‘highly dis-
parate,’ which it is not, there is a rational basis for the disparity, including an
additional offense with another victim a mere three weeks later and aggra-
vating factors for the offenses.”
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). “Congress has vested responsibility for determining sen-
tence appropriateness in the Courts of Criminal Appeals.” United States v.
Wacha, 55 M.J. 266, 268 (C.A.A.F. 2001). This power “reflects the unique his-
tory and attributes of the military justice system, [and] includes but is not
limited to considerations of uniformity and evenhandedness of sentencing de-
cisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
    We may affirm only as much of the sentence as we find correct in law and
fact and determine should be approved on the basis of the entire record. Arti-
cle 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the
record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (en banc) (quoting United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct.
Crim. App. 2009)). Although we have great discretion to determine whether a
sentence is appropriate, we have no power to grant mercy. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    When asking us to compare his case and sentence with others, Appellant
bears the burden of demonstrating that any cited cases are “closely related”
to his case and that the sentences are “highly disparate.” United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). The United States Court of Appeals
for the Armed Forces found cases to be “closely related” if, for example, they
involve “coactors involved in a common crime, servicemembers involved in a
common or parallel scheme, or some other direct nexus between the service-
members whose sentences are sought to be compared.” Id. If an appellant
carries that burden, then the Government must show a rational basis for the
sentence disparities. Id.
  We recognize that under Article 66(c), UCMJ, we may, in determining
whether a sentence is appropriate and ensuring relative uniformity, consider




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                  United States v. Benfield, No. ACM 39267


the outcomes of other courts-martial, not closely related, even though we are
not required to do so. See Wacha, 55 M.J. at 267.
    As an initial matter, we find that Appellant has met his burden to show
that his case and A1C Rameshk’s case are closely related. The record estab-
lishes Appellant and A1C Rameshk were co-actors in sexual offenses commit-
ted, at times simultaneously, upon JK. Although the Government does not
concede that Appellant’s case is “closely related” to A1C Rameshk’s case, it
focuses its response on the confinement disparity and rational basis for such
disparity between the two sentences. Thus, we move on and consider whether
Appellant met his additional burden to demonstrate that the sentences are
“highly disparate.”
    To meet the “highly disparate” burden, Appellant points to the two addi-
tional years of confinement he received—ten years to A1C Rameshk’s eight.
Appellant next highlights that he was only convicted of two offenses whereas
A1C Rameshk was convicted of four, including two specifications of raping
JK. Appellant also contrasts the mitigating matters present in his case—a
guilty plea that saved the Government money and spared JK from testify-
ing—with the aggravating circumstances of A1C Rameshk’s case, a fully liti-
gated trial in which Appellant testified and helped the Government prove the
rape allegations against A1C Rameshk.
    While we agree with Appellant that his approved sentence to ten years of
confinement is numerically disparate when compared to the eight years of
confinement A1C Rameshk received, Appellant has failed to demonstrate
that his sentence is highly disparate. Considering the maximum sentences
both Airmen faced, the two-year difference “in the confinement did not pro-
duce sentences that were ‘highly disparate.’” Lacy, 50 M.J. at 289. Even if the
relatively low disparity between the confinement terms could be considered
“highly disparate,” we find the Government has provided a rational basis for
such a difference.
    Appellant pleaded guilty to only two offenses, two fewer offenses than
A1C Rameshk was ultimately found guilty of after litigated findings. Howev-
er, Appellant’s offenses were crimes of violence against two different victims.
Despite JK rebuffing Appellant’s sexual advances and her expressed intent to
go to sleep when she arrived at Appellant’s house, Appellant stripped JK of
her shorts and underwear and sexually assaulted her. A1C Rameshk joined
the assault “a few minutes” after Appellant initiated it. Appellant continued
his sexual assault of JK while A1C Rameshk began his. Appellant described
these moments of the crime as follows:
       While I was doing this, she placed her arms behind her and be-
       gan pushing on my legs as if to get me to stop, but I did not


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                    United States v. Benfield, No. ACM 39267


       stop. I could tell by the way she was pushing my legs that she
       did not want to have sex. The sex continued for a few more
       minutes this way, after which I had stopped, but A1C Rameshk
       continued.
    Appellant explained:
       I do not believe the sex was consensual before or after A1C
       Rameshk joined. I was not under any mistaken belief that she
       wanted to have sex with me or A1C Rameshk. There could not
       have been a reasonable mistaken belief that [JK] wanted to
       have sex in light of what she had told me and the fact that she
       attempted to push me away.
    Almost three weeks later, Appellant once again initiated physical contact
with a nonconsenting woman when he assaulted HMB while she was sleep-
ing.
   That Appellant victimized a second woman provides a rational basis for
the difference between his sentence and A1C Rameshk’s.
    We find Appellant’s sentence correct in law and fact. While we readily
recognize our responsibility to maintain relative sentence uniformity and ev-
enhandedness within our jurisdiction, we once again emphasize that we do
not grant clemency. Moreover, sentence comparison does not require equiva-
lent sentences. See United States v. Snelling, 14 M.J. 267, 268–69 (C.M.A.
1982). Rather, sentence comparison is merely “one of many aspects” of as-
sessing a sentence’s appropriateness. Id. at 268. Mindful of our obligations,
we have given individualized consideration to the nature and seriousness of
Appellant’s crimes, Appellant’s record of service, all other matters contained
in the record of trial, and Appellant, and we conclude his sentence is not in-
appropriately severe based on the facts and circumstances of his particular
case.

                                    III. CONCLUSION
    The approved findings and sentence are correct in law and fact and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 3 Ar-

3 Appellant requested deferral of the adjudged reduction in grade, adjudged forfei-
tures, and mandatory forfeitures until action. The convening authority denied Appel-
lant’s deferral request, but granted Appellant’s request for waiver of all adjudged and
mandatory forfeitures. At action, the convening authority did not approve the ad-
judged forfeitures. The convening authority did not provide a basis for denying Ap-
pellant’s deferral requests. This was an error. However, Appellant claims no preju-
(Footnote continues on next page)


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                   United States v. Benfield, No. ACM 39267


ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




dice and we find no prejudicial error. Further, the expurgated CMO contains the vic-
tim’s full name in specification 4 of charge I. We order a corrected CMO.




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