United States v. Calixto, 201600049

Appellant, while stationed in Japan in 2015, communicated via social media with an undercover NCIS agent posing as a 14‑year‑old and sent a photo of his exposed genitalia and solicited sexual activity.
He pleaded guilty at a general court‑martial to attempted receipt of child pornography, two specifications of attempted sexual abuse of a child, indecent exposure, and making a false official statement; military judge sentenced him to 12 months confinement, reduction to E‑1, forfeitures, and a bad‑conduct discharge.
A pretrial agreement limited suspension of confinement over 12 months; the CA approved the sentence as adjudged.
On appeal, the court specified three issues: providence of the indecent‑exposure plea in light of precedent; whether convictions were unreasonably multiplicative; and whether trial counsel’s clemency submission (requesting disapproval of Article 80 convictions) was ineffective assistance.
The court held the indecent‑exposure conviction was improvident based on controlling precedent, set that finding aside, found the multiplicity issue moot, reassessed the sentence, and addressed the ineffective‑assistance claim.

Issue	Appellant's Argument	Government's Argument	Held
Providence of indecent‑exposure plea	Plea was provident because appellant sent an image of his exposed genitalia to a person he believed under 16	Plea was acceptable given appellant’s admission of sending the image	Court: Plea improvident under controlling precedent (same factual scenario); conviction set aside
Multiplication of charges (overlap between indecent exposure and attempted sexual abuse)	Convictions were unreasonably multiplied	Charges reflected distinct elements/gravamen	Court: Issue rendered moot by setting aside indecent‑exposure finding
Ineffective assistance re: clemency submission	Counsel’s request for CA to disapprove Article 80 convictions was legally improper and prejudiced appellant	No colorable showing of prejudice; appellant failed to specify alternative clemency he would have sought; relief requested (financial) was inapplicable	Court: No ineffective assistance—appellant did not meet the low burden to show possible prejudice

United States v. Uriostegui, 75 M.J. 857 (N‑M. Ct. Crim. App.) (holding acceptance of plea to indecent exposure improper under similar facts)
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.) (factors for reassessing sentence on appeal)
United States v. Sales, 22 M.J. 305 (C.M.A.) (reassessed sentence must be appropriate for the offense)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F.) (post‑trial submission to convening authority is appellant’s best chance for clemency)
United States v. Lee, 52 M.J. 51 (C.A.A.F.) (low threshold for showing prejudice in post‑trial clemency context)
United States v. Tippit, 65 M.J. 69 (C.A.A.F.) (standard for ineffective assistance of counsel)