United States v. Pinho-Tamburi
ACM S32460
| A.F.C.C.A. | Sep 5, 2017Background
- Appellant (Air Force member) pleaded guilty, per a pretrial agreement (PTA), to multiple specifications of wrongful use and distribution of LSD in 2016.
- Acts included purchasing and distributing small quantities of LSD to several airmen and multiple instances of personal use on and off base.
- PTA limited the convening authority to approving no more than eight months confinement; appellant pleaded guilty and the military judge sentenced him to a BCD, 60 days confinement, 90 days hard labor without confinement (HLWOC), and reduction to E-1.
- The SJA’s post-trial recommendation (SJAR) recited the maximum punishable sentence as including 12 months confinement, 3 months HLWOC, forfeiture of 2/3 pay for 12 months, a fine, reduction to E-1, and a reprimand.
- Appellant submitted clemency seeking reduction or disapproval of the 90 days HLWOC but did not object to the SJAR’s maximum-punishment statement or raise any legal error; the convening authority approved the sentence.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the SJAR’s statement of maximum punishment was erroneous (aggregation of confinement and HLWOC; fine plus maximum forfeitures) | Did not assert a SJAR error; requested reduction of HLWOC only | SJAR was mistaken about permissible aggregation and about fines with max forfeitures, but any error produced no prejudice | SJAR contained plain/obvious legal errors about punishment limits, but no colorable showing of prejudice; findings and sentence affirmed |
Key Cases Cited
- United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App. 2015) (standard of review for post-trial processing errors)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (forfeiture of untimely objection to SJAR error unless prejudicial under plain-error review)
- United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (plain error test applied to procedural/post-trial errors)