United States v. Means
ACM 38947
| A.F.C.C.A. | May 12, 2017Background
- A1C Means pleaded guilty, pursuant to a pretrial agreement (PTA), to multiple drug offenses: wrongful use of heroin, alprazolam, oxycodone, oxymorphone; wrongful possession of cocaine, alprazolam, clonazepam; incapacitation for duty; and attempted possession of fentanyl and psilocyn. The military judge sentenced him to a bad-conduct discharge, 15 months confinement, forfeiture of all pay, and reduction to E‑1; the convening authority approved.
- Facts: positive urinalyses and Bickel inspection for heroin and alprazolam; observable incapacitation while on duty after Xanax ingestion; wallet with cocaine residue; packages ordered while restricted (fentanyl patches and psilocyn) were inspected while Means was in pretrial confinement and tested positive for controlled substances.
- Means consented to a dorm-room search and a probable-cause authorization was also obtained; some packages were opened by officials because Means was in pretrial confinement.
- Procedural: Means entered a PTA limiting convening authority approval to no more than 16 months confinement or a dishonorable discharge; he waived certain issues (motion to suppress and unlawful pretrial punishment) as part of the PTA.
- At trial the assistant trial counsel argued during sentencing that Means had not fully accepted responsibility during his providence inquiry; defense did not object at trial.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Means) | Held |
|---|---|---|---|
| Whether trial counsel improperly argued Means withheld evidence / failed to accept responsibility during providence inquiry | The comment was a fair use of Means’ sworn providence testimony to argue limited remorse and rehabilitation prospects | The comment improperly penalized Means for invoking rights or misstated evidence and was plain error | No plain or obvious error; any possible error did not materially prejudice Means; sentencing affirmed |
| Whether the sentence is unduly severe | Sentence (BCD, 15 months, forfeitures, E‑1) is within PTA limits and appropriate given offenses and record | Sentence is excessive compared to other drug cases; requests reduction | Court reviewed de novo and found the sentence appropriate and not inappropriately severe; affirmed |
| Whether Government violated Fourth Amendment by opening Means’ mail while he was in pretrial confinement | Opening packages was lawful (contraband inspection; search authorization obtained) | Opening and testing mail without consent violated Fourth Amendment | Issue was affirmatively waived in PTA; not reviewed on appeal |
| Whether solitary pretrial confinement was unlawful pretrial punishment | Any pretrial confinement was lawful and subject to PTA waiver; no unlawful punishment claim preserved | Solitary confinement constituted unlawful pretrial punishment | Issue was affirmatively waived in PTA; waiver left intact |
Key Cases Cited
- United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014) (standard for reviewing improper argument)
- United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000) (limits on argument and evidence-based sentencing comments)
- United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007) (comments on invocation of rights are improper)
- United States v. Garren, 53 M.J. 142 (C.A.A.F. 2000) (refusal to accept responsibility may bear on rehabilitation if proper foundation exists)
- United States v. Edwards, 35 M.J. 351 (C.M.A. 1992) (foundation for considering lack of remorse at sentencing)
- United States v. Holt, 27 M.J. 57 (C.M.A. 1988) (sworn providence admissions admissible at sentencing)
- United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (assessing whether sentence was based on evidence alone)
- United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) (de novo sentence appropriateness review)
- United States v. Snelling, 14 M.J. 267 (C.M.A. 1982) (individualized sentence consideration)