U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                             No. ACM S32618
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                        Enoch A. PACHECO
          Airman First Class (E-3), U.S. Air Force, Appellant
                         ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 30 September 2020
                         ________________________

Military Judge: Charles G. Warren.
Sentence: Sentence adjudged 2 April 2019 by a SPCM convened at Minot
Air Force Base, North Dakota. Sentence entered by military judge on 2
July 2019: Bad-conduct discharge, confinement for 57 days, reduction
to E-1, and a reprimand.
For Appellant: Captain Alexander A. Navarro, USAF.
For Appellee: Captain Kelsey B. Shust, USAF; Mary Ellen Payne,
Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK and Judge KEY joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                         ________________________
ANNEXSTAD, Judge:
   A special court-martial composed of a military judge convicted Appellant,
in accordance with his pleas pursuant to a plea agreement, of desertion in
                   United States v. Pacheco, No. ACM S32618


violation of Article 85, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 885. 1 The military judge sentenced Appellant to a bad-conduct discharge, 57
days of confinement, reduction to the grade of E-1, and a reprimand. The plea
agreement had no impact on the convening authority’s ability to affect the
adjudged sentence. 2
    On appeal, Appellant raises a single assignment of error: whether
Appellant is entitled to sentence-appropriateness relief due to post-trial delay.
Specifically, Appellant claims that his due process rights were violated when
his case was not docketed with this court within 30 days of the convening
authority’s action as required by United States v. Moreno, 

, 142
(C.A.A.F. 2006). We find no error that resulted in material prejudice to
Appellant’s substantial rights, and we affirm the findings and sentence.

                                 I. BACKGROUND
    Appellant’s trial concluded on 2 April 2019. On 19 April 2019, the
convening authority signed a decision on action memorandum in Appellant’s
case. The entry of judgment (EoJ) was signed on 2 July 2019, and the court
reporter certified the record of trial (ROT) on 3 July 2019. The Government
provided via sworn declaration that it took the Government approximately 46
days to serve the ROT on Appellant. 3 Appellant eventually received the ROT
on 13 September 2019, and the ROT was docketed with this court six days
later, on 19 September 2019. 4 Appellant did not object to the delay or assert
his right to timely review prior to 22 April 2020.


1All references to the Uniform Code of Military Justice and Rules for Courts-Martial
(R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.).
2 The plea agreement limited confinement to a maximum of 60 days, with no other
limitations on punishment.
3 Since the issue was raised in the record but was not fully resolvable by those
materials, the affidavits submitted by the Government and Appellant were considered
consistent with United States v. Jessie, 

, 444 (C.A.A.F. 2020).
4 On 26 May 2020, the Government submitted a declaration to this court from
Technical Sergeant (TSgt) AF, the paralegal on Appellant’s case. TSgt AF stated that
the ROT was originally mailed to Appellant on 30 July 2019 to the address Appellant
originally provided after his trial concluded. On 13 August 2019, Appellant provided a
new mailing address, and another copy of the ROT was mailed to Appellant on 15
August 2019. TSgt AF attempted to confirm Appellant’s receipt of the ROT on 20
August 2019, 27 August 2019, 5 September 2019, and 10 September 2019. On 11
September 2019, TSgt AF received a third mailing address from Appellant, and
another copy of the ROT was mailed to Appellant on 12 September 2019. On 13
September 2019, Appellant received a copy of the ROT. On 15 September 2019, TSgt
AF received the signed receipt via email from Appellant.


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                  United States v. Pacheco, No. ACM S32618


    In his 22 April 2020 declaration before this court, Appellant claims that the
delay in docketing his case with this court has negatively impacted his ability
to find employment due to the fact that he cannot provide potential employers
with the final characterization of his service. Furthermore, Appellant claims
that the delay in the outcome of his appeal has caused him “particularized
anxiety and apprehension” due to his lack of employment, and that his anxiety
and apprehension has “been made worse due to the COVID-19 pandemic.”
Finally, Appellant asks this court to grant relief by setting aside his punitive
discharge.

                                II. DISCUSSION
    This court reviews de novo whether an appellant’s due process rights are
violated because of post-trial delay. 

(citations omitted).
In the absence of a due process violation, this court considers whether relief for
excessive post-trial delay is warranted consistent with this court’s authority
under Article 66(d), UCMJ, 10 U.S.C. § 866(d). See United States v. Tardif, 

, 224 (C.A.A.F. 2002); United States v. Gay, 

, 744 (A.F. Ct.
Crim. App. 2015), aff’d, 

(C.A.A.F. 2016).
    In Moreno, the United States Court of Appeals for the Armed Forces
(CAAF) identified thresholds for facially unreasonable delay during three
particular segments of the post-trial and appellate 

–43.
Specifically, the CAAF established a presumption of facially unreasonable
delay where: (1) the convening authority did not take action within 120 days
of the completion of trial, (2) the record was not docketed with the Court of
Criminal Appeals within 30 days of the convening authority’s action, or (3) the
Court of Criminal Appeals did not render a decision within 18 months of
docketing.

    We note at the outset, Appellant deserted his unit on 4 February 2019 and
was apprehended two days later on 6 February 2019. The convening authority
referred the charge and specifications to trial by special court-martial on 27
February 2019. Accordingly, Appellant’s court-martial is subject to the
substantive provisions and sentencing procedures of the UCMJ and procedural
provisions of the Rules for Courts-Martial (R.C.M.) provided for in the 2019
version of the Manual for Courts-Martial. We also agree that the due process
right to timely post-trial and appellate review the CAAF recognized and sought
to safeguard in Moreno endures under the new post-2019 procedures.
   As we recently noted in United States v. Livak, ___ M.J. ___, No. ACM
S32617, 2020 CCA LEXIS 315, at *6–7 (A.F. Ct. Crim. App. 14 Sep. 2020), “the
specific requirement in Moreno which called for docketing to occur within 30
days of action no longer helps us determine a facially unreasonable delay under
the new procedural rules,” but the aggregate standard threshold established

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                    United States v. Pacheco, No. ACM S32618


by the majority in Moreno of 150 days from Appellant’s sentence to docketing
is still applicable in determining a facially unreasonable delay.
    In the case before us, the entire period from the end of Appellant’s trial to
docketing with this court took 170 days. Since this is over the 150-day
threshold discussed above, we find there was a facially unreasonable delay and
must now assess whether there was a due process violation. In conducting our
analysis, we have considered the four factors set forth in Barker v. Wingo, 

, 530–32 (1972): (1) the length of the delay; (2) the reasons for the
delay; (3) Appellant’s assertion of the right to timely review and appeal; and
(4) prejudice. “[These] four factors are balanced, with no single factor being
required to find that post-trial delay constitutes a due process violation.”

(citing 

) (additional citation
omitted).
   The first factor, the length of the delay, moderately weighs in Appellant’s
favor; the Government exceeded the Moreno aggregate standard for a
presumptively unreasonable delay by 20 days.
    The second factor concerns the reasons for the delay. In this case, 46 of the
170 days it took to docket this case was directly attributable to the
Government’s repeated attempts to serve the ROT on Appellant in accordance
with R.C.M. 1112(e)(1). 5 In this case, the Government endeavored to serve the
ROT three different times, to three different addresses at Appellant’s direction,
before the ROT finally reached Appellant. Once Appellant received the ROT,
it was promptly docketed with this court within six days. As we have no
evidence of, nor has Appellant alleged any, bad faith on behalf of the
Government, we determine this factor favors the Government.
    The third factor, whether Appellant exercised his right to speedy appellate
review, also weighs in the Government’s favor. Appellant’s counsel conceded in
his submission to this court that Appellant never objected to the delay or
asserted his right to timely review until his filing with this court on 22 April
2020.
   As to the final factor, prejudice arising from post-trial processing delays,
Moreno sets forth three interests to 

–39. The first,
oppressive incarceration, does not apply to Appellant because he does not
prevail in his substantive appeal. See

   The second, anxiety and concern, is also not applicable. Appellant states he
has “particularized anxiety and apprehension” as he awaits the outcome of his

5 R.C.M. 1112(e)(1) states that “a court reporter shall, in accordance with regulations
issued by the Secretary concerned, provide a copy of the certified record of trial free of
charge to” the accused.


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                   United States v. Pacheco, No. ACM S32618


case, due to his lack of employment. He asserts his search for employment has
been made more difficult because some employers have asked for the
characterization of his military service which he cannot provide until his
appellate review is complete. Appellant also asserts that he anticipates other
potential employers will also ask for this information. Appellant, however, has
failed to provide any documentation of this fact from potential employers,
much less established they have a hiring criteria in place or what the rationale
would be for having such criteria. Therefore, we are unable to determine
whether these employers want to wait and see if Appellant’s conviction or
punitive discharge is overturned because they only wish to hire applicants
without such criminal records, or if they have a blanket policy against hiring
applicants who are undergoing some sort of appellate review for some reason.
Without explaining either the potential employers’ policies or how the
particular facts of his case operated to preclude his employment, Appellant has
not articulated prejudice arising from delay in his appellate review. Although
Appellant has not specifically set out the employers’ concerns, we suspect they
are far more likely concerned with whether or not Appellant’s conviction or
punitive discharge is upheld on appeal, rather than the fact Appellant’s case is
undergoing appellate review. Appellant pleaded guilty at trial, and on appeal
he has not asserted any legal infirmity with his trial save the length of post-
trial processing. We are not setting aside his conviction or his punitive
discharge, and Appellant has failed to explain how the mere pendency of
appellate review proceedings has operated to deny him employment
opportunities. 6 Finally, Appellant’s complaint does not rise to the level of
“particularized anxiety or concern that is distinguishable from the normal
anxiety experienced by prisoners awaiting an appellate decision.”

    The third and final factor, impairment of an appellant’s ability to present
a defense at a rehearing, is mooted by the fact we are not setting aside
Appellant’s conviction in this guilty-plea case. See

in the Government’s favor.
    Where, as here, there is no discernible prejudice from the delay, there is no
due process violation unless the delay is so egregious as to “adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 

, 362 (C.A.A.F. 2006). Considering the
relevant factors together, we conclude that the 170 days that elapsed between


6 Appellant asserts his anxiety and apprehension has been made worse due to the
COVID-19 pandemic which is especially bad in the city he lives, but he does not explain
how his appellate review is connected to the pandemic or how a speedier appellate
review would have lessened the pandemic impacts on him.




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                  United States v. Pacheco, No. ACM S32618


the conclusion of trial and docketing are not so egregious as to impugn the
fairness and integrity of the military justice system.
   Recognizing our authority under Article 66(d), UCMJ, we have also
considered whether relief for excessive post-trial delay is appropriate even in
the absence of a due process violation. See 

. After
considering the factors enumerated in 

, we conclude it is
not.

                                III. CONCLUSION
   The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(d), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are AFFIRMED. 7


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




7 We note the Statement of Trial Results in this case failed to include the command

that convened the court-martial as required by R.C.M. 1101(a)(3). Appellant has made
no claim of prejudice, and we find none. See United States v. Moody-Neukom, No. ACM
S32594, 2019 CCA LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam)
(unpub. op.).



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