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

                             No. ACM S32386
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                       Steven A. GONZALES
               Airman Basic (E-1), U.S. Air Force, Appellant
                         ________________________

          Appeal from the United States Air Force Trial Judiciary

                          Decided 2 August 2017
                         ________________________

Military Judge: Jill M. Thomas.
Approved sentence: Bad-conduct discharge and confinement for 47 days. Sen-
tence adjudged 10 February 2016 by SpCM convened at Travis Air Force
Base, California.
For Appellant: Major Melissa Biedermann, USAF.
For Appellee: Lieutenant Colonel Roberto Ramírez, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, BROWN, and CARRILLO, Appellate Military Judges.
Judge CARRILLO delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge BROWN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

CARRILLO, Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty consistent with his pleas of one charge and four specifica-
tions of wrongful use, possession, and distribution of marijuana, and wrong-
                 United States v. Gonzales, No. ACM S32386


ful possession of N-(2-Methoxybenzyl)-4-choro-2, 5-dimethoxyphenethyl-
amine, a Schedule I controlled substance, in violation of Article 112a, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The military judge
sentenced Appellant to a bad-conduct discharge and two months of confine-
ment. The convening authority approved the bad-conduct discharge and 47
days of confinement.
   Appellant raises two assignments of error: that the trial counsel’s sen-
tencing argument was improper; and that the Government erred by failing to
provide him with the authenticated record of trial (ROT) in a timely manner.
Appellant requests we set aside his bad-conduct discharge and reduce his
confinement. Finding no prejudicial error, we affirm the findings and sen-
tence.

                              I. BACKGROUND
   While stationed at Travis Air Force Base, California, Appellant obtained a
California medical marijuana identification card and purchased marijuana
from a local medical marijuana dispensary. After teaching his girlfriend,
Airman Basic (AB) MT, how to smoke marijuana using a glass water pipe,
the two smoked it together several times and also ate brownies containing
marijuana that Appellant made. Appellant informed another military mem-
ber that he planned to open his own marijuana dispensary after finishing his
four years in the Air Force.
    Additionally, Appellant purchased what he believed to be “acid” on blotter
paper, which turned out to be N-(2-Methoxybenzyl)-4-choro-2, 5-dimethoxy-
phenethylamine, a Schedule I controlled substance under the Federal Con-
trolled Substances Act, 21 U.S.C. § 812.
   Appellant stored the marijuana and the blotter paper, both of which
agents later seized, in his dorm room.
   After using marijuana with AB MT, Appellant was ordered by his first
sergeant to have no contact with AB MT. Appellant violated the order, for
which he received non-judicial punishment.

                               II. DISCUSSION
A. Trial Counsel’s Sentencing Argument
   Toward the beginning of his sentencing argument, trial counsel argued:
       Your Honor, we are going to ask for a bad-conduct discharge.
       Operating a medical marijuana dispensary and use of medical
       marijuana, is illegal in the military and it is against federal
       law. And if that is what the accused wants to do, we will give

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       him that dream. Give him a bad-conduct discharge. He can get
       out of the military and he can do that.
Trial counsel finished the sentencing argument, stating:
       Your Honor, based on all of this conduct, we believe we should
       give the accused what he wants, but first he deserves that eight
       months to sit and think . . . Once he has done [that], Your Hon-
       or, we think he should have the other things he wants. He
       should get a bad-conduct discharge, and he should be allowed
       to open his medical marijuana dispensary.
    Although he did not object at trial, Appellant now alleges that this argu-
ment improperly blurred the lines between a punitive discharge and an ad-
ministrative separation. He also alleges that it misstated the evidence and
intentionally misrepresented the record by implying that Appellant wanted a
bad-conduct discharge.
    “Prosecutorial misconduct is ‘action or inaction by a prosecutor in viola-
tion of some legal norm or standard, e.g., a constitutional provision, a statute,
a Manual rule, or an applicable professional ethics canon.’” United States v.
Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (quoting United States v. Meek, 44
M.J. 1, 5 (C.A.A.F. 1996)). That “standard was set by the Supreme Court in
Berger v. United States in 1935, describing prosecutorial misconduct as be-
havior by the prosecuting attorney that ‘overstep[s] the bounds of that pro-
priety and fairness which should characterize the conduct of such an officer
in the prosecution of a criminal offense.’ 295 U.S. 78, 84 (1935).” Id. at 11–12
(bracket in original).
    “Improper argument involves a question of law that this Court reviews de
novo.” Pabelona, 76 M.J. at 11 (quoting United States v. Frey, 73 M.J. 245,
248 (C.A.A.F. 2014)). “The legal test for improper argument is whether the
argument was erroneous and whether it materially prejudiced the substan-
tial rights of the accused.” Id. (citation and internal quotation marks omitted
in original). Because defense counsel failed to object to the arguments at the
time of trial, we review for plain error. United States v. Rodriguez, 60 M.J.
87, 88 (C.A.A.F. 2004). The standard for plain error review requires that:
(1) an error was committed; (2) the error was plain, or clear, or obvious; and
(3) the error resulted in material prejudice to substantial rights. Pabelona, 76
M.J. at 11 (internal quotation marks and citation omitted). Appellant has the
burden of establishing prejudice. Id.
   We apply a three-part test to determine whether improper sentencing ar-
gument results in prejudice: (1) the severity of the misconduct; (2) the
measures adopted to cure the misconduct; and (3) the weight of the evidence
supporting the sentence and whether we can be confident that the appellant


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was sentenced on the basis of the evidence alone. Frey, 73 M.J. at 249.
    It is well-settled that a punitive discharge is “not intended to be a vehicle
to make an administrative decision about whether an accused should be re-
tained or separated.” United States v. Ohrt, 28 M.J. 301, 306 (C.M.A. 1989). It
is thus “improper to blur the lines between a punitive discharge and adminis-
trative separation.” United States v. Motsinger, 34 M.J. 255, 256 (C.M.A.
1992); see also United States v. Filyaw, No. ACM S32062, 2013 CCA LEXIS
845, *10 (A.F. Ct. Crim. App. 2 Oct. 2013) (unpub. op.) (holding that the mili-
tary judge’s instruction cured the confusion when “[t]he Government’s argu-
ment invited the members to focus on retention and assess a sentence that
ensured appellant would be separated by suggesting that barring a bad-
conduct discharge, the appellant would indeed be retained.”).
    Here, trial counsel’s argument that giving the Appellant a bad-conduct
discharge would be a way to “get [him] out of the military” so that he could
“open his medical marijuana dispensary” was ill-advised. While likely intend-
ed sardonically rather than seriously, it risked blurring the line between a
punitive discharge and administrative separation. Still, we find no risk that
the military judge believed trial counsel to be stating that Appellant was in
fact requesting a punitive discharge and to the extent that the remarks
blurred the lines between punitive and administrative separation, Appellant
forfeited any error by failing to object and has not demonstrated prejudice.
    Applying the Frey factors, we find no prejudice. First, the purported mis-
conduct was not severe. The comments were isolated and not the main focus
of the argument—they were in fact just a few sentences in a much longer sen-
tencing argument focusing on other, far more powerful themes. As well, the
absence of a Defense objection shows “at least some measure of the minimal
impact of the trial counsel's allegedly improper argument.” United States v.
Lightner, No. ACM 38253, 2014 CCA LEXIS 172, *15–16 (A.F. Ct. Crim. App.
14 Mar. 2014) (unpub. op) (internal quotation marks omitted). Second, as
there were no members, no curative measures were required. Trial counsel’s
statements were made to a military judge alone. It is a “well-established rule
that military judges are presumed to know the law and to follow it absent
clear evidence to the contrary.” United States v. Hukill, 76 M.J. 219, 221
(C.A.A.F. 2017) (internal quotation marks and citations omitted). Finally, the
weight of the evidence amply supports the approved sentence, and we are ful-
ly confident that the military judge understood the difference between a pu-
nitive discharge and the possibility of administrative separation and sen-
tenced Appellant on the basis of the evidence alone. We thus find no preju-
dice.




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B. Late Delivery of Authenticated Record of Trial to Appellant
    A defense counsel's failure to comment on any matter in the post-trial
recommendation in a timely manner forfeits any later claim of error, unless it
rises to the level of plain error. Rule for Courts-Martial (R.C.M.) 1106(f)(6),
Manual for Courts-Martial, United States (2016); United States v. Kho, 54
M.J. 63, 65 (C.A.A.F. 2000). To prevail under a plain-error analysis, Appel-
lant has the burden of persuading this court that: (1) there was an error;
(2) it was plain or obvious; and (3) the error materially prejudiced a substan-
tial right. Kho, 54 M.J. at 65 (citing United States v. Finster, 51 M.J. 185, 187
(C.A.A.F. 1999)). We review application of the plain error doctrine de novo, as
a question of law. Id.
    Appellant claims for the first time that the Government erred by failing to
provide him with an authenticated ROT in a timely manner, in violation of
Article 54(d), UCMJ, 10 U.S.C. § 854(d). Article 54(d), UCMJ, states, “A copy
of the record of the proceedings of each general and special court-martial
shall be given to the accused as soon as it is authenticated.” The parties do
not dispute that it took 17 days for the Government to provide Appellant with
the authenticated ROT. The Government offers no explanation for the delay.
   A 17-day unexplained delay may appear to violate the plain language of
Article 54(d). However, even if it is error, we do not find a substantial right of
the accused was materially prejudiced.
    Appellant alleges that the delayed delivery of the ROT prevented him
from reviewing the record “as soon as possible after the trial.” He claims that
earlier delivery would have made it easier for him and his counsel to recall
any issues they believed needed to be raised in clemency, resulting in a lim-
ited ability to quickly recall and focus on any issues that they needed to ad-
dress.
    Appellant’s argument is generalized and speculative. Importantly, Appel-
lant has not, either in clemency or on appeal, identified any issues with the
trial that he desired to address in his clemency submission. Cf. United States
v. Gilbreath, 57 M.J. 57, 61–62 (C.A.A.F. 2002) (holding that when consider-
ing whether new matter included in an unserved addendum to a staff judge
advocate recommendation prejudiced an appellant, the appellant should as-
sert what, if anything, he would have submitted to deny, counter, or explain
matters submitted by the Government). We find that Appellant has not
demonstrated material prejudice to a substantial right. Accordingly, this
court does not find plain error.




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                              III. CONCLUSION
    The approved findings are correct in law and fact, the sentence is not in-
appropriate, and no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the approved findings and sentence are AFFIRMED.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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