United States v. Chero
2017 CCA LEXIS 14
| A.F.C.C.A. | 2017Background
- Appellant was convicted at a general court-martial of sexual assault under Article 120(b)(2) for engaging in sexual intercourse with a person he knew or reasonably should have known was unconscious or otherwise unaware (offense dated ~25 Nov 2012).
- At the time of the offense Congress had revised Article 120 (effective 28 Jun 2012) but the President had not yet promulgated updated MCM maximum punishments for the revised offense.
- The President later issued Exec. Order No. 13,643 (15 May 2013) setting the maximum punishment for the revised sexual-assault offenses to include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.
- At trial the military judge concluded the correct maximum punishment was a dishonorable discharge, total forfeitures, and 30 years confinement, but employed an erroneous analytical route (invoking Article 18 and a default life term, then relying on lenity/notice to reach the 30-year maximum).
- On appeal the CAAF remanded for reconsideration in light of United States v. Busch; this court addressed whether the military judge’s decision violated the Ex Post Facto Clause and whether the correct maximum punishment was applied.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the military judge’s method violated the Ex Post Facto Clause | Chero argued use of an increased or retroactive maximum would violate Ex Post Facto | Gov argued the President’s later Exec. Order set the applicable maximum and/or the offense was listed in Part IV so no ex post facto problem | No Ex Post Facto violation — judge did not rely on the 2013 Executive Order to increase punishment, so no retroactive increase occurred. |
| Proper method to determine maximum punishment under R.C.M. 1003(c)(1) | Chero argued the President had not set a maximum for the 2012 offense and the judge’s reliance on a default life term was improper | Gov argued the 2012 offense was listed in Part IV (via JSC edits) or was closely related to the 2007 Article 120 offense, so the 2007 max applied (30 years) | Held that under R.C.M. 1003(c)(1)(B)(i) the 2012 offense is closely related to the 2007 aggravated-sexual-assault offense listed in Part IV; maximum is dishonorable discharge, forfeiture, and 30 years confinement. |
| If not listed in Part IV, whether the maximum could instead be set by federal statute or service custom | Chero argued uncertainty meant different analyses could apply; potential prejudice asserted | Gov argued analogous federal statute (18 U.S.C. § 2242) or a service custom would yield equal or greater maximums | Court held even under R.C.M. 1003(c)(1)(B)(ii) an analogous federal statute or service custom would permit an equal or greater maximum, so no prejudice from alternate analyses. |
| Whether the erroneous analytical path rendered the sentence invalid | Chero argued the judge’s mistaken reasoning required relief | Gov argued correct result was reached and any error was harmless | Held the judge reached the correct maximum despite using the wrong analytical route; no material prejudice; affirmed sentence. |
Key Cases Cited
- Peugh v. United States, 133 S. Ct. 2072 (2013) (Ex Post Facto principles regarding increases in maximum punishment)
- United States v. Busch, 75 M.J. 87 (C.A.A.F. 2016) (analysis of maximum punishment issues for Article 120 offenses post-2012 amendments)
- United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (maximum punishment for an offense is a question of law reviewed de novo)
- Loving v. United States, 517 U.S. 748 (1996) (Congress may delegate to the President authority to prescribe rules affecting capital punishment and related matters)