United States v. Wood

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 40429 ________________________ UNITED STATES Appellee v. Brandon A. WOOD Senior Airman (E-4), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 13 August 2024 ________________________ Military Judge: Christopher D. James (arraignment); Dayle P. Percle.

Sentence: Sentence adjudged 18 October 2022 by GCM convened at Barksdale Air Force Base, Louisiana. Sentence entered by military judge on 13 December 2022: Dishonorable discharge, confinement for 12 months, reduction to E-1, and a reprimand.

For Appellant: Major Spencer R. Nelson, USAF.

For Appellee: Colonel Steven R. Kaufman, USAF; Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant Colonel J. Pete Ferrell, USAF; Ma- jor Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire.

Before: JOHNSON, GRUEN, and KEARLEY, Appellate Military Judges. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ PER CURIAM: A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of one specifica- tion of wrongful possession of child pornography in violation of Article 134, United States v. Wood, No. ACM 40429

Uniform of Code Military Justice (UCMJ), 10 U.S.C. § 934.1 The military judge sentenced Appellant to a dishonorable discharge, confinement for 12 months, reduction to the grade of E-1, and a reprimand. The convening authority took no action on the findings and did not modify the adjudged sentence. The con- vening authority denied Appellant’s request for deferment of the reduction to the grade of E-1, but waived automatic forfeitures for six months for the benefit of Appellant’s dependent child.

Appellant raises one issue on appeal: whether as applied to Appellant, ref- erence to 18 U.S.C. § 922 in the Statement of Trial Results and entry of judg- ment is unconstitutional where the Government cannot demonstrate that bar- ring his possession of firearms is “consistent with the nation’s historical tradi- tion of firearm regulation”2 when he was not convicted of a violent offense.3 After carefully considering this issue and for the reasons explained in United States v. Vanzant, __ M.J. __, No. ACM 22004, 2024 CCA LEXIS 215, at *24 (A.F. Ct. Crim. App. 28 May 2024) and United States v. Lepore, 81 M.J. 759, (A.F. Ct. Crim. App. 2021) (en banc), we find Appellant is not entitled to relief.

In this case, Appellant did not raise the issue of the convening authority’s failure to provide a reason in writing for the denial of the request for defer- ment. We, however, address this issue sua sponte. The convening authority’s Decision on Action Memorandum indicates Appellant requested waiver of for- feitures for six months and deferment of reduction in grade for six months. The convening authority granted the request for waiver of automatic forfeitures, but expressly denied the deferment request. However, the convening authority did not provide a reason in writing for the denial of the request for deferment of reduction in grade. The record discloses no indication the Defense objected or moved for correction of the convening authority’s failure to address the rea- sons why he denied the request to defer reduction in grade.

We review a convening authority’s denial of a deferment request for an abuse of discretion. United States v. Sloan, 35 M.J. 4, 6 (C.M.A. 1992), over- ruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F.

2018); Rule for Courts-Martial (R.C.M.) 1103(d)(2). “When a convening author- ity acts on an [appellant]’s request for deferment of all or part of an adjudged sentence, the action must be in writing (with a copy provided to the [appellant])

United States v. Wood, No. ACM 40429

and must include the reasons upon which the action is based.” Id. at 7 (footnote omitted); see also R.C.M. 1103(d)(2) (“The action of the authority acting on the deferment request shall be in writing” and “provided to the accused.”).

“A motion to correct an error in the action of the convening authority shall be filed within five days after the party receives the convening authority’s ac- tion.” R.C.M. 1104(b)(2)(B).

Because Appellant did not object or move to correct an error in the conven- ing authority’s decision on action, we review the convening authority’s decision therein to deny the deferment for plain error. See United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (citations omitted) (noting appellate courts re- view forfeited issues for plain error). Under the longstanding precedent of Sloan, the convening authority’s failure to state the reasons he denied the re- quest to defer reduction in rank was an error. See 35 M.J. at 7. For purposes of our analysis, we assume without holding the error was clear or obvious. How- ever, under the circumstances of this case, we find no material prejudice to Appellant. Appellant bore “the burden of showing that the interests of [himself] and the community in deferral outweigh[ed] the community’s interests in im- position of the punishment on its effective date.” R.C.M. 1103(d)(2). Appellant not only forfeited the issue at the time, but he has not alleged on appeal prej- udicial error by the convening authority. Furthermore, the convening author- ity granted Appellant’s request to waive automatic forfeitures for the benefit of his dependent child pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b. Given Appellant requested deferral of his reduction in rank “because his paycheck is going to his family,” we are confident the convening authority entertained the rationale for the requested waiver and deferral. There is no indication the con- vening authority entertained an improper rationale for denying deferment of reduction in rank and we find Appellant’s material rights were not substan- tially prejudiced by the convening authority’s failure to state the reasons for the denial.

The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court