UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                       Private First Class JOSHUA A. PHENIX
                            United States Army, Appellant

                                     ARMY 20111108

            Headquarters, Joint Readiness Training Center and Fort Polk
                         Gregory A. Gross, Military Judge
                  Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Jonathan F. Potter,
JA; Captain James P. Curtin, JA (on brief); Major Amy E. Nieman, JA; Captain
James L. Trieschmann, Jr., JA (on specified issue)

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Daniel M. Goldberg, JA (on brief and
specified issue)


                                     24 December 2013

                                 -----------------------------
                                 MEMORANDUM OPINION
                                 -----------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MARTIN, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of attempted larceny, three specifications of conspiracy to
commit larceny, making a false official statement, and four specifications of larceny,
in violation of Articles 80, 81, 107, and 121, Uni form Code of Military Justice, 10
U.S.C. §§ 880, 881, 907, 921 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for twenty-eight
months, total forfeitures, and reduction to the grade of E -1. Pursuant to the pretrial
agreement, the convening authority approved 365 days confinement and otherwise
approved the remainder of the adjudged sentence.
PHENIX—ARMY 20111108


       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, neither of which merits discussion or
relief. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally raised the issue of confinement credit, as well as another issue which
does not merit discussion or relief. Thereafter, this court issued an order to both the
government and appellant's counsel to brief the specified issues pertaining to
confinement credit. 1 After reviewing the record of trial, the original assignments of
error, the Grostefon matters, and the specified issues, we determined appellant is
entitled to relief and take appropriate action in our decretal paragraph.
                                  BACKGROUND

       Between October 2010 and April 2011, appellant engaged in a course of
criminal conduct that resulted in both a gener al court-martial and separate state
criminal charges. However, the offenses tried at the court -martial encompassed
different conduct than the offenses tried in state court.
       At his court-martial, appellant pled guilty to stealing and conspiring to steal
All-Terrain Vehicles and winches from vehicles between October 2010 and April
2011. These crimes occurred on the Fort Polk i nstallation. Appellant also attempted
to steal insurance proceeds by stripping down and burying his car in a training area
on the installation. In support of his claim, appellant made a false official
statement to the military police claiming his vehicle had been stolen. In state court,
appellant was charged with stealing property, conspiring with others to steal
property, and burglarizing dwellings located off of the installation in Sabine and
Vernon Parishes in Louisiana. Appellant committed the off-post offenses between
24 January 2011 and 14 April 2011.
       On 19 April 2011, appellant was confined by state authorities in the Sabine
Parish Jail. On or about 21 April 2011, appellant was transferred to the Vernon
Parish Jail. He remained there until on or about 2 August 2011 when he made bail.
He was then released to the military authorities and he returned to duties w ithout
military confinement. The command preferred charges on appellant on 27 August
2011. Appellant’s court-martial was held on 7 December 2011. Appellant raised the
issue of confinement credit for the separate state charges in a pretrial motion, and
the military judge denied that motion. At the time of the court-martial, appellant
had not yet been to trial on the civilian charges in Sabine and Vernon Parish.



1
  The specified issues included the following: WHETHER THE MILITARY JUDGE
ERRED BY DENYING THE DEFENSE MOTION FOR CONFINEMENT CREDIT
FOR THE TIME APPELLANT SERVED IN CIVILIAN CONFINEMENT PRIOR TO
HIS COURT-MARTIAL UNDER THE PROVISIONS OF 18 U.S.C. § 3585(b) AS
IMPLEMENTED BY DODI 1325.7, DATED 17 JULY 2001 (INCORPORATING
CHANGE 1).


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                                                 LAW

       Prior to our superior court’s decision in United States v. Allen, 17 M.J. 126 (C.M.A.
1984), service members in the military justice system were not automatically entitled to
credit for pretrial confinement. See, e.g., United States v. Larner, 1 M.J. 371, 374 n.11
(C.M.A. 1976). In Allen, the Court of Military Appeals applied a federal pretrial
confinement statute to trials by courts-martial when they concluded that the Secretary of
Defense adopted the pretrial confinement provisions of 18 U.S.C. § 3568, by promulgating
Dep’t of Def. Inst. 1325.4, Treatment of Military Prisoners and Administration of Military
Corrections Facilities (7 October 1968). The instruction required that the procedures for
computing military sentences “will be in conformity with those published by the
Department of Justice, which govern the computation of sentences of federal prisoners and
military prisoners.” Id. at 127.

       In 1984, Congress repealed 18 U.S.C. § 3568, and enacted a new statute that
provides a more comprehensive basis for granting sentencing credit. 2 That statute, codified
at 18 U.S.C. § 3585(b), replaced § 3568 and became effective on 1 November 1987. 3 In
addition to providing credit for pretrial confinement as a “result of the offense for which
the sentence was imposed,” Section 3585(b)(2) also provides credit for the pretrial
confinement resulting from other, unrelated offenses . 4 While not all pretrial limitations
meet the requirements to receive credit for “prior custody,” within the meaning of this

2
 See Major Michael L. Kanabrocki, Revisiting United States v. Allen: Applying
Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court -Martial
Sentences to Post-Trial Confinement Under 18 U.S.C. § 3585(b)(2), A RMY L AW .,
August 2008, at 1-4 (providing an overview of administrative sentence credit).
3
  See Pub. L. No. 98-473, § 212, 98 Stat. 1837, 2001; see also § 235(a)(1), 98 Stat.
at 2031, amended by Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-
217, § 4, 99 Stat. 1728.
4
    18 U.S.C. § 3585(b) in its entirety reads:

       (b) Credit for prior custody. A defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in official detention
prior to the date the sentence commences--

               (1) as a result of the offense for which the sentence was imposed; or

               (2) as a result of any other charge for which the defendant was arrested
               after the commission of the offense for which the sentence was
               imposed;

that has not been credited against another sentence.



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PHENIX—ARMY 20111108


provision, incarceration in a parish jail does constitute “official detention” for purposes of
18 U.S.C. § 3585(b). See United States v. Dowling, 962 F.2d 390, 392 n.3 (5th Cir. 1992)
(citing United States v. Becak, 954 F.2d 386, 388 (6th Cir. 1992)).

       At the time of appellant’s court-martial, the instruction in effect was Dep’t of
Def. Inst. 1325.7 Administration of Military Correctional Facilities and Clemency
and Parole Authority [hereinafter DODI 1325.7] (17 July 2001) . 5 This new authority
did not significantly change the instruction noted in Allen. See United States v.
Smith, 56 M.J. 290, 293 (C.A.A.F. 2002) (finding that 18 U.S.C. § 3585(b) applies to
courts-martial, but not ruling specifically on the applicability of § 3585(b)(2)).
However, after appellant’s trial, DODI 1325.7 was cancelled by Dep’t of Def. Inst.
1325.07 Administration of Military Correctional Facilities and Clemency and Parole
Authority [hereinafter DODI 1325.07] (11 March 2013). The new version expressly
makes unrelated crimes credit inapplicable to sentencing at a trial by courts-martial:

              …if a prisoner (accused) is confined in a non-military
              facility for a charge or offense for which the prisoner had
              been arrested after the commission of the offense for
              which the military sentence was imposed, the prisoner
              (accused) shall receive no credit for such time confined in
              the non-military facility when calculating his or her
              sentence adjudged at court-martial.

Id. at para. 3(c).

       In United States v. Wilson, 503 U.S. 329 (1992), the Supreme Court agreed
the 18 U.S.C. § 3585 had broadened the effect of its predecessor statute, but held
that the Sixth Circuit erred in ruling that the new statute required the district courts
to assess sentence credit. 503 U.S. at 335-37. Instead, the Court ruled that the
“Attorney General must continue to compute the credit under § 3585(b) as he did
under the former § 3568,” even though § 3585(b) “no longer mentions the Attorney
General.” Id. at 335. The Court also highlighted the fact that the final clause of §
3585(b) only allows the defendant to receive credit for confinement “that has not
been credited against another sentence.” Id. at 333 (quoting 18 U.S.C. § 3585(b));
see Tisdale v. Menifee, 166 F. Supp. 2d 789, 792 (S.D. NY 2001) (stating that a
defendant is not entitled to “double credit” for his state and federal sentences ).

      In United States v. Gogue, this court did not expressly decide whether 18
U.S.C. § 3585(b)(2) applies to trials by courts-martial. ARMY 20050650, 2007 WL
7235107 (Army Ct. Crim. App. 18 May 2007) (en banc). The court reasoned,

5
  See para. 6.3.1.5 (“Procedures used to compute sentences shall conform to those
established by the Department of Justice for Federal prisoners unless they conflict
with this Instruction, [Dep’t of Def. Dir. 1325.4, Confinement of Military Prisoners
and Administration of Military Correctional Programs and Facilities (28 Sep. 1999)],
or existing Service regulations.”).

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PHENIX—ARMY 20111108


assuming arguendo that the provision did apply, that trial judges lack the “authority
to calculate and apply pretrial confinement credit.” Gogue, 2007 WL 7235107, at *1
(citing Wilson, 503 U.S. at 333). After the Court of Appeals for the Armed Forces
granted review, the parties agreed that appellant Gogue was, in fact, entitled to
credit for his civilian confinement. Our superior court, in a summary disposition,
adopted the position of the parties, set aside the decision of the service court, and
remanded the case to provide meaningful relief. United States v. Gogue, 67 M.J.
169 (C.A.A.F. 2008) (summ. disp). Since that time, this court, as well as our sister
service courts, have consistently awarded cre dit for the period civilian authorities
confined an appellant on unrelated state charges prior to court -martial. See, e.g.
United States v. Goodwin, ARMY 20080463, 2009 WL 6827248 (Army Ct. Crim.
App. 18 Feb. 2009) (summ. disp.); United States v. Yanger, 68 M.J. 540 (C.G. Ct.
Crim. App. 2009). The appellant has the burden to demonstrate that he is entitled to
pretrial confinement credit. See United States v. Martin, ARMY 97000900, 1998
WL 35319915, at *2 (Army Ct. Crim. App. 1998) (mem. op.); see also United States
v. Harris, 66 M.J. 166, 169 (C.A.A.F. 2008).

                                   DISCUSSION

       Appellant committed the offenses for which he was court-martialed between 1
and 18 October 2010, 6-7 January 2011, and 15 April 2011. Appellant committed
the off-post offenses in Vernon Parish between 24 January and 3 February 2011 and
on 25 March 2011. He committed the offenses in Sabine Parish on 14 April 2011.
Appellant was confined in civilian jail from 19 April 2011 – 2 August 2011, serving
a total of 106 days in civilian confinement until he made bond. Appellant was court-
martialed on 7 December 2011.

       The current DODI 1325.07 was not in effect until 11 March 2013. Given that
appellant was court-martialed in December 2011, the prior version that provid ed
credit for civilian, pretrial confinement credit was still valid. Appellant met the
prerequisites of 18 U.S.C. § 3585(b)(2) in that he was arrested after the commission
of the offense for which the court-martial sentence was imposed. Additionally, his
incarceration in the parish jail constituted “prior custody” for purposes of the
statute.

       Following our order on 13 November 2013, appellant provided documentary
evidence of his civilian convictions as well as a post -trial declaration made under
penalty of perjury. The documents show that on 8 November 2012, appellant was
sentenced to one year confinement at hard labor in Sabine Parish. The documentary
evidence provides no indication of credit for his confinement. In his declaration,
appellant affirmatively states that he never received credit for the time he spent in
pretrial confinement from 19-21 April 2011, for a total of three days, in Sabine
Parish.

      On 12 June 2013, appellant was sentenced by Vernon Parish to three
sentences of five years each at hard labor, to run concurrently. The court suspended

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PHENIX—ARMY 20111108


the prison sentences and placed the defendant on supervised probation for five years.
In his declaration, appellant asserts that while still on parole for his suspended
sentence for the convictions from Vernon Parish, he has not received confinement
credit for the time spent in pretrial confinement from 21 April – 2 August 2011.
However, the Vernon Parish sentencing minutes submitted by appellant in s upport of
his assertion reflect “credit for time served since date of arrest” for each criminal
count.

        The government asserts that consistent with the Supreme Court’s holding in
Wilson, it would be inappropriate for the trial judge to grant unrelated crimes credit.
This argument fails to recognize the inherent differences in sentencing procedures
between Federal civilian courts and the military justice system. Indeed, the opinion
itself highlighted some areas where the Federal civilian system are distinct from the
presentencing practices found in the military. For example, Justice Thomas, writing
for the Court, observed that Federal defendants do not always begin their sentences
immediately. Wilson, 503 U.S. at 333. In contrast, “sentences to confinement in the
military generally ‘begin to run from the date the sentence is imposed.’” See
Kanabrocki, Revisiting United States v. Allen, supra, at 20 (quoting Article 57(b),
UCMJ and arguing that the Army court’s holding in United States v. Gogue
incorrectly relied on Wilson to find that 18 U.S.C. 3585(b)(2) did not apply to
military courts-martial). Moreover, the drafters noted that “[s]entencing procedures
in Federal civilian courts can be followed in courts -martial only to a limited
degree.” Rule for Courts-Martial [hereinafter R.C.M.] 1001 analysis at A21-70.

       We do agree with the government that the military judge did not err by
denying the defense motion for confinement credit based on the period appellant
served in civilian confinement prior to his court -martial. We reach this conclusion
based on relative timing of the convictions, not the position, per se, of the military
judge. The decision to apply civilian confinement credit to a sentence at court-
martial should be based on whether or not the period of confinement has been
credited against another sentence. In this case, appellant was not sentenced for his
crimes in Sabine Parish until almost a year after the conclusion of his court -martial,
and the Vernon Parish crimes were not adjudicated until another seven months after
that. Therefore, the timing of appellant’s civilian sentencing and not the military
judge’s status, position, or duties prevented him from awarding unrelated crimes
credit at the time of appellant’s court -martial.

       Although the timing prevented the military judge from making a
determination regarding unrelated crimes credit, this court is able to calculate and
award credit. See UCMJ art. 66. We find that appellant has met his burden and
demonstrated that he is entitled to sentence credit for the time he spent confined by
Sabine Parish from 19-21 April 2011 for a total of three days. As for the time spent
in confinement for Vernon Parish, appellant provided sentencing minutes that reflect
credit for time served. Appellant’s declaration does not overcome the documentary
evidence from the Vernon Parish court, and we find that appellant failed to meet his


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PHENIX—ARMY 20111108


burden that he has not already received credit for the period of confinement from 21
April through 2 August 2011.

                                      RELIEF

       “When . . . an accused was improperly held in confinement past what should
have been his release date, this Court may fashion an appropriate and meaningful
remedy with respect to the remainder of the sentence.” United States v. Keith, 36
M.J. 518, 519 (A.C.M.R. 1992) (citing United States v. Valead, 32 M.J. 122 (C.M.A.
1991) (other citations omitted). Appellant has served his full sentence to
confinement, so in order to fashion meaningful relief, we shall modify some other
portion of the sentence. Id.

       In United States v. Rosendahl, 53 M.J. 344 (C.A.A.F. 2000), our superior
court noted that R.C.M. 305(k) provides a formula to award administrative credit for
pretrial confinement. Under the provisions of R .C.M. 305(k), one day of
confinement is equivalent to one day of total forfeitures. See R.C.M. 305(k); see
also Rosendahl, 53 M.J. at 347.

       Appellant’s approved sentence included total forfeitures. He also forfeited
his pay by operation of law while serving his sentence to confinement, pursuant to
Article 58b, UCMJ. We will therefore order three days of confinement credit and
disapprove the sentence to forfeiture of all pay and allowances so that appellant will
receive pay for the three days of unauthorized confinement.

                                   CONCLUSION

      On consideration of the entire record and the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
findings of guilty are AFFIRMED. Only so much of the sentence as extends to
reduction to E-1, confinement for 362 days, and a bad-conduct discharge, is
approved.

      Senior Judge KERN and Judge ALDYKIEWICZ concur.


                                              FOR THE COURT:



                                              ANTHONY O. POTTINGER
                                              Chief Deputy Clerk of Court




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