United States v. Harley
ACM 38896
| A.F.C.C.A. | Mar 6, 2017Background
- Appellant, an Air Force member assigned to Kadena AB, Japan, was investigated after AFOSI detected peer-to-peer activity linking him to downloads of suspected child pornography.
- A search recovered electronic media; forensic analysis identified 534 files previously catalogued by NCMEC as child pornography involving known minor victims.
- Appellant pleaded guilty at a general court-martial (military judge alone) to one specification of possession of child pornography (Article 134, UCMJ).
- He entered a pretrial agreement limiting approved confinement to no more than 42 months; no other sentencing limits were imposed.
- The military judge sentenced Appellant to a dishonorable discharge, 42 months confinement, total forfeitures, and reduction to E-1; the convening authority approved the sentence.
- Appellant appealed only the appropriateness of the 42-month confinement as inappropriately severe for a first-time possession offender.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether 42 months confinement is inappropriately severe | 42 months is excessive for a first-time possession offender without production, contact offenses, or massive collections; asks for 24 months | Points to the pretrial agreement limit and argues Appellant got what he bargained for; implies appellate review should defer | Affirmed: sentence not inappropriately severe — individualized review supports 42 months given severity and facts; pretrial agreement not dispositive |
Key Cases Cited
- United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) (sentence appropriateness reviewed de novo)
- United States v. Anderson, 67 M.J. 703 (A.F. Ct. Crim. App. 2009) (factors for assessing sentence appropriateness)
- United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010) (appellate court not to perform clemency role when assessing sentence)