UNITED STATES, Appellee, v. Galen E. SOTHEN, Jr., Aviation Ordnanceman First Class, U.S. Navy, Appellant.
No. 00-0200. Crim.App. No. 98-0738.
U.S. Court of Appeals for the Armed Forces.
Decided Jan. 5, 2001.
Argued Oct. 12, 2000.
54 M.J. 294
For Appellant: David P. Sheldon (argued); Eugene R. Fidell and Lieutenant Mari-Rae Sopper, JAGC, USNR (on brief).
For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC (on brief).
Amicus Curiae Urging Reversal: Liеutenant Colonel Adele H. Odegard, Lieutenant Colonel David A. Mayfield, Major Jonathan F. Potter, and Captain Kevin J. Mikolashek—For the United States Army Defense Appellаte Division.
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of conspiraсy to commit murder, two specifications of solicitation to commit murder, and adultery, in violation of
On appellant‘s petition, we granted review of the following issues:
WHETHER APPELLANT‘S APPROVED SENTENCE TO CONFINEMENT CONSTITUTES AN OBVIOUS MISCARRIAGE OF JUSTICE OR AN ABUSE OF DISCRETION BECAUSE HIS SENTENCE OF 25 YEARS WAS MORE THAN EIGHT TIMES GREATER THAN HIS CO-DEFENDANT‘S SENTENCE OF 3 YEARS.
WHETHER THE GOVERNMENT FAILED TO MEET ITS BURDEN TO PROVE A RATIONAL BASIS FOR THE HIGHLY DISPARATE SENTENCES GIVEN TO APPELLANT AND HIS CO-DEFENDANT.
WHETHER, IN PERFORMING ITS SENTENCE APPROPRIATENESS ANALYSIS GIVEN TWO “CLOSELY RELATED CASES,” THE COURT OF CRIMINAL APPEALS ERRED IN DISREGARDING THE SENTENCE OF A CIVILIAN CO-DEFENDANT BECAUSE THE MILITARY AND CIVILIAN SYSTEMS HAVE DIFFERING APPROACHES TO SENTENCING PRINCIPLES AND THE ADMINISTRATION OF PUNISHMENT.
For the reasons set forth below, we affirm the decision of the Court of Criminal Appeals.
I. Background
Appellant, who enlisted in the Navy in 1978, was married in 1979 and remained married to his wife Judy during his military service through the events pertinent to this appeal. In 1995, they purchased a house in her hometown of Knoxville, Tennessee. When appellant received orders to the Naval Support Activity, Memphis, his wife and their son remainеd in Knoxville while he lived approximately 200 miles away in Memphis. Appellant anticipated retiring and returning to Knoxville upon completion of his assignment at Memphis.
In 1996, appellant entered into an intimate relationship with Ms. Marney Steen while in Memphis. As the relationship deepened, appellant and Steen took steps tо terminate appellant‘s marriage by arranging for the murder of appellant‘s wife. Appellant, in Ms. Steen‘s presence, asked James Warthen to commit the murder. Warthen declined, but said that he knew of a person, Baxter Holland, who would do so. Warthen arranged for appellant and Steen to meet with Holland, who, unbeknownst tо them, was an informant for the Shelby County Police Department. These arrangements resulted in a series of meetings involving appellant, Steen, and Holland, at which Holland wore a hidden recording device. At these meetings, appellant and Steen engaged in various conversations about the proposed murder, which resulted in the arrest of both appellant and
II. Review of Sentences by the Courts of Criminal Appeals
The Courts of Criminal Appeals are required to engage in sentence comparison only “in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.” United States v. Ballard, 20 M.J. 282, 283 (CMA 1985)(quoting lower court‘s unpublished opinion). An appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant‘s case, and that the sentences are “highly disparate.” Lacy, supra at 288. If the appellant meets that burden, or if the court raises the issue on its own motion, the burden shifts to the Government to show a rational basis for the disparity. Id.
Our review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow question of whether there has been an “obvious miscarriage [] of justice or abuse [] of discretion.” Id., quoting United States v. Dukes, 5 M.J. 71, 73 (CMA 1978).
III. Sentence Comparison by the Court of Criminal Appeals
The Court of Criminal Appeals concluded that appellant‘s case was “closely related” to that of his civilian co-actor, Ms. Steen. The court also found the resрective sentences to be highly disparate. The court concluded, however, that there were “many good and cogent reasons in the record of trial thаt explain the disparity between the two sentences awarded.” Unpub. op. at 6. The court cited the following reasons: (1) the parties were tried by two different sovereigns; (2) while it is appropriate to consider closely related civilian cases, sentence comparison between civilian and military cases is less persuasive than comparison among courts-martial in light of the differences between civilian and military approaches to sentencing and punishment; (3) appellant was convicted of multiple serious offenses, while his co-actor was convicted only of a single count of solicitation; (4) the charges against appellant were contested, while the conviction of the civilian co-actor was based on a voluntary, negotiated plea of guilty; and (5) the sentence of appellant‘s co-actor reflected the fact that she had agreed to assist the prosecution by testifying against appellant.
Appellant сontends that the lower court abused its discretion in affirming his sentence without “cogent reasons.” Appellant takes the position that the reasons articulated by thе court below do not justify the significant disparity in the sentences, that the court placed too much emphasis on Ms. Steen‘s guilty plea, and that the court did not give sufficient weight to her culpability or to appellant‘s record of service. The Government, on the other hand, contends that any deficiency in sentence comрarison is immaterial because, in the Government‘s view, it is not permissible for the Courts of Criminal Appeals to compare military and civilian sentences.
With respect to the Government‘s argument, we note that there is nothing in the plain language of
The consideratiоns articulated by the court below provide a legally sufficient justification for the disparity between the two sentences. The court properly considered the treatment of appellant‘s co-actor under the civilian justice system, and noted a number of variances that could have reasonably accounted for the differential sentences. These factors, specifically enumerated by the court, meet the rational basis standard set forth in Lacy.
IV. Conclusion
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.