United States v. Busch
2016 CAAF LEXIS 91
| C.A.A.F. | 2016Background
- Busch was convicted at a judge-alone general court-martial of fraud enlistment, AWOL, making a false official statement, and sexual abuse of a child under Article 83, 86, 107, and 120b, UCMJ.
- The defense and government debated the maximum punishment for Article 120b(c) during trial because 2012 MCM amendments did not list a maximum for the offense at that time.
- Exec. Order No. 13,643, enacted May 2013, later set maximums for Article 120b offenses; its applicability at Busch’s time was disputed.
- The military judge used an R.C.M. 1003(c)(1)(B)(i) close-related-offense analysis, favoring indecent liberties with a child, to fix a maximum of 15 years for sexual abuse of a child, which tracks the President’s order.
- The AFCCA affirmed the maximum sentence; the majority held no ex post facto violation, though the judge’s method relied on an analysis not expressly cited by statute at the time.
- Judge Stucky dissented, arguing the maximum should be eight years and one month under a different interpretation of 1003(c)(1)(B) and the service custom.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there an ex post facto violation in using a post-offense executive order? | Busch: using Exec. Order 13,643 after the act increases punishment; violates ex post facto. | Government: no ex post facto because the judge did not rely on the executive order to set the maximum. | No ex post facto violation. |
| Was the max punishment correctly determined under R.C.M. 1003(c)(1)(B)(i) as closely related to a listed offense? | Busch: indecent exposure/indecent liberties are not closely related to sexual abuse of a child; max should be limited to a lesser listed offense. | Government: indecent liberties with a child is closely related to sexual abuse of a child; 15-year max applies. | Yes, the military judge correctly applied 1003(c)(1)(B)(i) as closely related, resulting in a 15-year maximum. |
| If not closely related to a listed offense, does custom of the service govern the maximum under 1003(c)(1)(B)(ii)? | Busch: repeal moved indecent liberties with a child and indecent exposure out of Part IV; custom should set lower max. | Government: the custom of the service historically supported the 15-year cap for indecent liberties with a child. | The custom supported the 15-year maximum under 1003(c)(1)(B)(ii); the outcome remains the same even if the analysis differed. |
| Did the court’s analysis create prejudice or depart from controlling law? | Busch: the error in the framework caused prejudice to the pleas/conviction. | Government: any error was harmless given the correct maximum result under the service’s custom. | No prejudice; the decision upholds the AFCCA outcome. |
Key Cases Cited
- Beaty v. United States, 70 M.J. 39 (C.A.A.F. 2011) (framework for closely related offenses under 1003(c)(1)(B)(i))
- Peugh v. United States, 133 S. Ct. 2072 (U.S. 2013) (retrospective increases in sentencing guidelines can violate ex post facto)
- Ramsey v. United States, 40 M.J. 71 (C.M.A. 1994) (social costs analysis for closely related offenses (limited use))
- United States v. McDonagh, 14 M.J. 415 (C.M.A. 1983) (early elements-based comparison of offenses)
- United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1997) (ex post facto considerations in military sentencing)