IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

            Michael D. BAIER, Private First Class (E-2)
                    U.S. Marine Corps, Appellant

                               No. 04-0340

                        Crim. App. No. 200200476


       United States Court of Appeals for the Armed Forces

                        Argued October 26, 2004

                        Decided   January 3, 2005

GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER and ERDMANN, JJ., joined.


                                  Counsel

For Appellant: Lieutenant Commander Eric J. McDonald, JAGC, USN
(argued); Lieutenant Jason S. Grover, JAGC, USN (on brief).

For Appellee: Captain Wilbur Lee, USMC (argued); Lieutenant
Colonel William K. Lietzau, USMC (on brief); Lieutenant Frank
Gatto, JAGC, USNR, Commander Robert P. Taishoff, JAGC, USN.

Military Judge:    R.K. Fricke




  This opinion is subject to editorial correction before final publication.
United States v. Baier, No. 04-0340/MC



       Chief Judge GIERKE delivered the opinion of the Court.

       This case concerns the legal standard that the Courts of

Criminal Appeals use when carrying out their responsibility

under Article 66(c) of the Uniform Code of Military Justice1

(UCMJ) to ensure that a sentence is appropriate.           The lower

court’s opinion quotes an incorrect standard for determining

sentence appropriateness.       In using that language, however, the

lower court cited a 19-year-old summary disposition of this

Court that was marred by a mistaken and misleading citation.

That mistake is a weed in the garden of our jurisprudence.             We

will now pull it up by the roots.            More importantly, we will

also discuss the appropriate standard of review that the Courts

of Criminal Appeals must apply in fulfilling their statutory

obligation to ensure sentence appropriateness.

                                 Background

       In a trial before a military judge alone, Appellant pleaded

guilty to and was found guilty of conspiracy to wrongfully

distribute LSD, ecstasy, and cocaine; wrongful use of LSD;

wrongful distribution of LSD, ecstasy, and cocaine; and breaking

restriction in violation of Articles 81, 112a, and 134 of the

Uniform Code of Military Justice.2           The military judge sentenced

Appellant to confinement for 30 months, forfeiture of all pay


1
    10 U.S.C. § 866(c) (2000).
2
    10 U.S.C. §§ 881, 912a, 934 (2000).

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United States v. Baier, No. 04-0340/MC


and allowances, reduction to pay grade E-1, and a dishonorable

discharge.    The convening authority approved the sentence as

adjudged and, in accordance with the pretrial agreement,

suspended confinement in excess of 24 months for 12 months from

the date of trial.

       When his case was before the Navy-Marine Corps Court of

Criminal Appeals, Appellant raised an assignment of error

asserting that a dishonorable discharge was inappropriately

severe for his offenses.       Appellant urged the lower court to

affirm a bad-conduct discharge in its place.       In an unpublished

per curiam opinion, the lower court rejected Appellant’s request

and affirmed the sentence as adjudged.        We granted Appellant’s

petition to determine whether the lower court used the correct

legal standard when determining the appropriateness of

Appellant’s sentence.3

                                 Discussion

       In its opinion affirming Appellant’s sentence, the lower

court quoted Article 66(c) and noted that its task was to

determine “whether the accused received the punishment he

deserved.”    Citing our opinion in United States v. Healy,4 the

lower court properly distinguished its sentence appropriateness

role from the convening authority’s power to grant clemency.


3
    

 (C.A.A.F. 2004).
4
    

 (C.M.A. 1988).

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United States v. Baier, No. 04-0340/MC


The lower court then cited our decision in United States v.

Lanford5 for the proposition that it had the authority to

“disapprove any portion of a sentence that it deems

inappropriately severe.”

       The issue in this case arises from the next passage in the

lower court’s opinion:

       An appropriate sentence results from an
       “individualized consideration of the particular
       accused on the basis of the nature and seriousness of
       the offense and the character of the offender.”
       United States v. Rojas, 

, 919 (N.M.C.M.R.
       1983) (citing United States v. Snelling, 

       (C.M.A. 1982)), aff’d, 

 (C.M.A. 1985).
       When reviewing a sentence it is important to consider
       the sense of justice of the community where the crime
       was committed which should not be disturbed unless
       “the harshness of the sentence is so disproportionate
       to the crime as to cry out for equalization.” Rojas,
       15 M.J. at 919.

       After discussing the facts of Appellant’s case, the lower

court concluded its sentence appropriateness analysis with

another citation to Rojas:       “The appellant received the

individual consideration required based on the seriousness of

his offenses and his own character, which is all the law

requires.    Rojas, 15 M.J. at 919.          As such, we decline to grant

relief.”

       Based on that language, it is impossible for us to

determine whether the lower court conducted an independent

assessment of the appropriateness of Appellant’s sentence or


5
    

, 376, 

, 92 (1955).

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United States v. Baier, No. 04-0340/MC


merely deferred to the “individual consideration” Appellant had

previously received from the military judge and the convening

authority.    Nor can we determine whether the lower court

independently assessed the sentence’s appropriateness for this

particular offender or merely determined that the sentence was

not “so disproportionate to the crime as to cry out for

equalization.”

       The lower court’s reliance on its 1983 Rojas decision leads

to this confusion.     In 1981, Lance Corporal Armando Rojas was

sentenced to death for the premeditated murder of another

Marine.6    The Navy-Marine Corps Court affirmed the findings and

death sentence in February 1983.7            Eight months later, this Court

issued its opinion in United States v. Matthews,8 which

invalidated the death penalty system under which Rojas had been

tried and condemned.      In January 1984, we set aside the Navy-

Marine Corps Court’s Rojas decision and remanded the case “for a

de novo review by a new panel containing no members of the panel

which originally reviewed the case.”9            This disposition was

designed not only to allow the lower court to apply Matthews to

the case, but also to moot an issue concerning alleged judicial

impropriety when the Navy-Marine Corps Court originally



6
    15 M.J. at 905.
7
    Id. at 932.
8
    

 (1983).
9
    United States v. Rojas, 

, 155 (C.M.A. 1984).

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United States v. Baier, No. 04-0340/MC


considered the Rojas case.10       The lower court’s opinion in this

case failed to note that Rojas decision.

     In August 1984, consistent with our decision in Rojas, a

new three-judge panel of the Navy-Marine Corps Court set aside

Rojas’s death sentence and instead affirmed a sentence including

confinement for life.11      In June 1985, we issued an order that

simply affirmed “the decision of the United States Navy-Marine

Corps Court of Military Review.”12           Unfortunately, the published

version of this order contained something that the original

order did not:     a citation to “

.”13        That is the

citation for the Navy-Marine Corps Court’s original February

1983 decision that we set aside in January 1984.           This citation

was obviously incorrect because we were affirming the Navy-

Marine Corps Court’s August 23, 1984 opinion issued by the new

panel.   We were not affirming that court’s earlier opinion,

which had affirmed a death sentence imposed under

unconstitutional procedures, which we had expressly set aside,

and which the lower court had superseded with a more recent

opinion.

     The error in our published Rojas order may have contributed

to the lower court’s confusion in this case.           The Navy-Marine


10
   Id.
11
   United States v. Rojas, NMCM 81 2019, 1984 CMR LEXIS 3773, at
*6 (N-M.C.M.R. Aug. 23, 1984) (footnote omitted).
12
   

 (C.M.A. 1985) (summary disposition).
13
   Id.

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United States v. Baier, No. 04-0340/MC


Corps Court’s opinion followed the quotation from its superseded

1983 Rojas opinion with a citation to that decision accompanied

by the erroneous subsequent history, “aff’d, 

 (C.M.A.

1985).”   Let there be no further confusion:    we did not affirm

the Navy-Marine Corps Court’s February 1983 Rojas decision, but

rather “set [it] aside.”14

     More importantly, the language that the lower court quoted

in this case from its superseded Rojas opinion15 is legally

incorrect.    A Court of Criminal Appeals must determine whether

it finds the sentence to be appropriate.     It may not affirm a

sentence that the court finds inappropriate, but not “so

disproportionate as to cry out” for reduction.     As the Army

Court has recognized, Article 66(c)’s sentence appropriateness

provision is “a sweeping Congressional mandate to ensure ‘a fair

and just punishment for every accused.’”16     Article 66(c)

“requires that the members of [the Courts of Criminal Appeals]

independently determine, in every case within [their] limited

Article 66, UCMJ, jurisdiction, the sentence appropriateness of

each case [they] affirm.”17




14
   Rojas, 17 M.J. at 155.
15
   The language that the lower court quoted originated in United
States v. Usry, 

, 704-05 (N.C.M.R. 1980).
16
   United States v. Bauerbach, 

, 504 (A. Ct. Crim.
App. 2001) (quoting Lanford, 6 C.M.A. at 378, 20 C.M.R. at 94).
17
   Id. at 506.



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United States v. Baier, No. 04-0340/MC


     It is possible that in this case, the lower court

“independently determined” the sentence’s appropriateness.          But

the lower court’s recitation of an incorrect standard from its

superseded Rojas opinion suggests that it may have relied on an

improperly circumscribed standard.           To ensure that Appellant was

not prejudiced by the lower court’s erroneous view of the law,

we set aside the lower court’s opinion as to the sentence and

remand the case for a new Article 66(c) sentence appropriateness

determination using the correct standard.          Of course, we express

no opinion as to how that new sentence appropriateness review

should be resolved.      That is a matter committed to the sound

discretion of the lower court, using proper legal standards.

                                 Conclusion

     The decision of the Navy-Marine Corps Court of Criminal Appeals

is affirmed as to findings and set aside as to sentence.          The

record is returned to the Judge Advocate General of the Navy for

remand to the Navy-Marine Corps Court for a new sentence

appropriateness review.      Thereafter, Article 67 will apply.




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