This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
              FOR THE ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                Adrian GONZALEZ, Private
                United States Army, Appellant
                          No. 19-0297
                    Crim. App. No. 20160363
       Argued January 14, 2020—Decided April 24, 2020
 Military Judges: Charles L. Pritchard Jr. and Marc D. Cipriano
   For Appellant: Captain Rachele A. Adkins (argued);
   Lieutenant Colonel Tiffany D. Pond and Major Angela D.
   Swilley (on brief); Lieutenant Colonel Todd W. Simpson and
   Major Joseph C. Borland.
   For Appellee: Captain Lauryn D. Carr (argued); Colonel
   Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
   and Major Dustin B. Myrie (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge SPARKS, joined.
   Judge MAGGS filed a separate dissenting opinion in
   which Judge RYAN joined.
                      _______________

   Judge OHLSON delivered the opinion of the Court.
    Upon setting aside one of Appellant’s several convictions
and also setting aside Appellant’s sentence, the United States
Army Court of Criminal Appeals (CCA) remanded this case to
the convening authority with instructions to take one of three
actions. One of these proposed actions was for the convening
authority to “dismiss [the specification at issue] and reassess
the sentence, affirming no more than a dishonorable
discharge and confinement for six years.” United States v.
Gonzalez, No. ARMY 20160363, 2018 CCA LEXIS 327, at
*13–14, 

, at *6 (A. Ct. Crim. App. July 3,
2018) (unpublished) (emphasis added). We hold that the CCA
erred when it issued this instruction. Accordingly, we reverse
the judgment of the lower court as to the sentence and
remand this case to the CCA for proceedings consistent with
this opinion.
           United States v. Gonzalez, No. 19-0297/AR
                     Opinion of the Court

                         I. Background
    A military judge sitting as a general court-martial
convicted Appellant, pursuant to his pleas, of three
specifications of violating a lawful general order and two
specifications of abusive sexual contact, in violation of
Articles 92 and 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 920 (2012). The military judge also
convicted Appellant, contrary to his pleas, of one specification
of rape, in violation of Article 120, UCMJ. The convening
authority approved the adjudged sentence of a dishonorable
discharge and confinement for ten years.
    Upon appellate review, the CCA set aside the rape
conviction and the sentence, affirmed the remaining findings,
and instructed the convening authority to take one of three
actions on remand: (1) order a rehearing on the rape
specification and sentence; (2) dismiss the rape specification
and order a rehearing on sentence; or (3) “dismiss [the rape
specification] and reassess the sentence, affirming no more
than a dishonorable discharge and confinement for six years.”
Gonzalez, 2018 CCA LEXIS 327, at *13–14, 

, at *6. In a footnote, the CCA explained:
       In reassessing the sentence we are satisfied that the
       sentence adjudged, absent [the rape specification],
       would have been at least a dishonorable discharge
       and confinement for six years. The reassessment
       being both appropriate and purging the record as it
       stands of error does not otherwise limit the sentence
       that may be adjudged at a rehearing.

n.8, 

, at *6 n.8 (emphasis added)
(citations omitted). Appellant did not seek reconsideration of
the CCA’s remand instructions and did not file a petition for
grant of review in this Court challenging these instructions.
Instead, the record of trial was returned to the convening
authority for further proceedings consistent with the CCA’s
decision.
   On remand, the staff judge advocate (SJA) recommended
that the convening authority dismiss the rape specification,
approve the remaining findings of guilty, and “reassess the
sentence to confinement for 6 years and a dishonorable
discharge.” Appellant provided a Rule for Courts-Martial
(R.C.M.) 1105/1107 submission but did not question the


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           United States v. Gonzalez, No. 19-0297/AR
                     Opinion of the Court

CCA’s authority to conduct the sentence reassessment or to
impose a sentence cap after setting aside the sentence. In an
addendum, the SJA maintained his earlier recommendation.
   Before taking action on this matter, the convening
authority considered a number of documents including the
CCA opinion, Appellant’s R.C.M. 1105/1107 submission, and
the SJA’s post-trial advice. The convening authority then (1)
determined a rehearing on the rape specification was “not
practicable” and dismissed this specification without
prejudice, (2) determined a “rehearing on the sentence only
[was] not practical,” and (3) approved “[o]nly so much of the
sentence as provide[d] for a dishonorable discharge and
confinement for six years.”
    Appellant’s case once again returned to the CCA for a
second Article 66, UCMJ, review. Appellant filed a brief
raising one supplemental assignment of error, but he did not
challenge the CCA’s authority to conduct a sentence
reassessment or to impose a sentence cap after setting aside
the sentence. The lower court affirmed the findings and
sentence in a brief per curiam opinion.
    Appellant waited until filing his petition for grant of
review in this Court to challenge the CCA’s authority to issue
the specific remand instructions in his case. We granted
review on two issues: (1) whether the CCA exceeded its
statutory authority by reassessing the sentence after it had
set aside the approved sentence; and (2) whether Appellant
waived or forfeited this issue. United States v. Gonzalez, 

(C.A.A.F. 2019) (order granting review).
                        II. Discussion
                 A. Waiver and Forfeiture
    We conclude that Appellant neither waived nor forfeited
his challenge to the CCA’s authority to reassess the sentence
on its own and impose a sentence cap after setting aside
Appellant’s approved sentence. This is true for three reasons.
    First, “[t]his Court has recognized that ‘[w]aiver can occur
either by operation of law, or by the intentional
relinquishment or abandonment of a known right.’” United
States v. Haynes, 

, 19 (C.A.A.F. 2019) (internal
quotation marks omitted) (quoting United States v. Jones,


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            United States v. Gonzalez, No. 19-0297/AR
                      Opinion of the Court

, 44 (C.A.A.F. 2018)). The Government in the
instant case does not argue that there was any waiver by
operation of law, and we see no basis to conclude that there
was.
    Second, in terms of waiver resulting from the intentional
relinquishment of a known right, Appellant had no basis to
challenge the CCA’s authority in the remand proceedings
before the convening authority because the convening
authority clearly lacked the power to ignore or correct the
CCA’s remand instructions. See United States v. Montesinos,

, 44 (C.M.A. 1989) (indicating that the convening
authority “can only take action that conforms to the
limitations and conditions prescribed by the [lower court’s]
remand”); see also United States v. Carter, 

, 296
(C.A.A.F. 2017). Therefore, the mere fact that Appellant
failed to take the useless step of challenging the CCA’s
authority when he made his submissions to the convening
authority does not constitute waiver.
    Third, at the time Appellant’s case was before the
convening authority and the CCA, this Court had never
addressed the CCA’s innovation of conducting a sentence
reassessment and imposing a sentence cap when providing
remand instructions to the convening authority. Instead,
Appellant’s case was one of a series of recent cases in which
the CCA had taken this novel approach.1 Given the CCA’s
practice and the absence of guidance from this Court, we
conclude that there was no waiver by the intentional
relinquishment of a known right, and no forfeiture, when
Appellant failed to raise a novel issue challenging the CCA’s
remand instructions. See City of Newport v. Fact Concerts,
Inc., 

, 257 (1981) (“[I]t would scarcely be
appropriate or just to confine our review to determining
whether any error that might exist is sufficiently egregious to
qualify [as plain error when the].… very novelty of the legal
issue at stake counsels unconstricted review.”).




   1 See United States v. Wall, __ M.J. __, __ (11) (C.A.A.F. 2020)
(Appendix I).



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           United States v. Gonzalez, No. 19-0297/AR
                     Opinion of the Court

             B. Scope of the CCA’s Authority
    In our recent Wall opinion we held that a CCA does not
have the authority to conduct a sentence reassessment after
setting aside the sentence. __ M.J. at __ (1, 8–10). And yet,
that is precisely what happened here. Therefore, the CCA in
this case erred when it conducted a sentence reassessment
and imposed a sentence cap after setting aside the sentence.
    Because there was error, we next turn our attention to
prejudice. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012).
To begin with, the right to a proper and “complete Article 66,
UCMJ, review is a ‘substantial right’ of an accused.” United
States v. Chin, 

, 222 (C.A.A.F. 2016) (quoting
United States v. Jenkins, 

, 30 (C.A.A.F. 2004)).
Here, the CCA did not conduct a proper Article 66, UCMJ,
review because, simply stated, the CCA’s sentence
reassessment and sentence cap went beyond its statutory
authority. Article 66(c), UCMJ, authorizes a CCA to act “only
with respect to the findings and sentence as approved by the
convening authority.” (Emphasis added.) Thus, in the instant
case where the CCA set aside the findings and sentence as
approved by the convening authority, the CCA had no
residual authority to impose a cap on a future sentence that
did not presently exist. This error effectively means that the
CCA’s Article 66, UCMJ, review was improper, and without a
proper review, this case needs to be remanded to the CCA.

(“Article 66(c) review is a substantial
right. It follows that in the absence of such a complete review,
Appellant has suffered material prejudice to a substantial
right.”); United States v. Holt, 

, 233 (C.A.A.F.
2003).
    In addition, the CCA’s ultra vires action posed a
substantial risk of interfering with the convening authority’s
independent decision-making authority on remand by
improperly influencing what the convening authority deemed
to be an appropriate sentence. See Wall, __ M.J. at __ (9–10);
R.C.M. 1107(e)(2)(B) (2016 ed.). Indeed, the record in this case
squarely raises the specter of this improper influence because




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            United States v. Gonzalez, No. 19-0297/AR
                      Opinion of the Court

the convening authority was aware of the CCA’s putative
sentence cap,2 and then approved that exact same sentence.3
    Because the CCA prejudicially erred by conducting a
sentence reassessment and imposing a sentence cap after
setting aside Appellant’s sentence, we reverse the decision of
the CCA as to the sentence.
                         III. Judgment
   We affirm the judgment of the United States Army Court
of Criminal Appeals as to findings and reverse as to the
sentence. The record is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal

   2  The dissent contends that “the limitation [on Appellant’s
sentence] could only have benefitted Appellant.” United States v.
Gonzalez, __ M.J. __, __ (3) (C.A.A.F. 2020) (Maggs, J., joined by
Ryan, J., dissenting). This assertion sweeps too broadly. A quick
hypothetical demonstrates this point. Assume there is a case where
the CCA acts within its statutory authority and does not reassess
the sentence and impose a sentence cap after setting aside an
appellant’s approved sentence. Upon receipt of the case the
convening authority may reason as follows: “I have seen similar
cases in the past where the accused received three years in prison.
Therefore, that is the sentence I will impose here.” However, under
circumstances similar to the ones presented here where the CCA
acted ultra vires and imposed a sentence cap, the convening
authority may reason as follows:
   Although I have seen similar cases in the past where the
   accused received three years in prison, the judges on the Court
   of Criminal Appeals have much more experience in this area
   and have concluded that a sentence of six years in prison is more
   appropriate. Therefore, I will impose a sentence of five years in
   prison.
Under this scenario, the convening authority would have been
swayed in his thinking by the mere existence of the improperly
imposed sentence cap—to the obvious detriment of the appellant.
And yet, there would be nothing in the record demonstrating that
this improper effect on the independent decision-making authority
of the convening authority had occurred.
   3 Unlike the dissent, we conclude that the convening authority’s
decision to approve the exact same sentence as the one authorized
by the CCA rebuts the presumption of regularity. See United States
v. Wise, 

, 478, 

, 194 (1955) (indicating
that the presumption of regularity can be “overcome[]”).



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           United States v. Gonzalez, No. 19-0297/AR
                     Opinion of the Court

Appeals, which shall: (1) dismiss the rape specification
(Specification 2 of Charge III) and reassess the sentence; or
(2) remand to the convening authority who shall (a) order a
rehearing on the rape specification and the sentence or (b)
dismiss the rape specification and order a rehearing on the
sentence alone.




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           United States v. Gonzalez, No. 19-0297/AR


   Judge MAGGS, with whom Judge RYAN joins, dissent-
ing.
   I respectfully disagree with the Court’s conclusions that
Appellant suffered prejudice and that this prejudice requires
reversal of the decision of the U.S. Army Court of Criminal
Appeals (ACCA) as to the sentence. I therefore dissent.
   I. The ACCA’s Instruction to the Convening Authority
    The substantive legal issue in this case is difficult. The
parties have identified nothing in the Rules for Courts-Mar-
tial that either expressly forbids or expressly authorizes the
kind of instruction that the ACCA provided in this case. This
Court also has no precedent that directly addresses the legal-
ity of such an order, although the Court itself, on occasion,
has issued orders that are similar. See, e.g., United States v.
Harvey, 

, 25 (C.A.A.F. 2006) (instructing that the
“the convening authority may approve no portion of the sen-
tence other than a punitive discharge”); United States v.
Moreno, 

, 144 (C.A.A.F. 2006) (same). Rather than
decide this difficult issue in this case, I would simply affirm
the ACCA’s decision on grounds that, even if the instruction
to the convening authority was improper, Appellant suffered
no prejudice. The instruction did not harm Appellant when
his case was initially before the ACCA, when the case was
returned to the convening authority, or when the ACCA re-
viewed it a second time.
                A. The ACCA’s Initial Review
    No prejudice to Appellant occurred while the case was in-
itially before the ACCA. Appellant received a complete review
under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Pursu-
ant to this review, the ACCA set aside a rape specification
and vacated Appellant’s entire sentence. Appellant did not
and cannot complain about these results because they were
completely beneficial to him. Thus, even if the instruction to
the convening authority was in error, that error did not affect
the ACCA’s initial review. The instruction by its terms could
only have a prospective effect.
    The Court concludes that Appellant suffered prejudice
during the initial review at the ACCA because he did not re-
ceive an Article 66(c), UCMJ, review that was free from error.
            United States v. Gonzalez, No. 19-0297/AR
                   Judge MAGGS, dissenting

The Court reasons that the ACCA had no authority to impose
a cap on a future sentence that did not currently exist and
that “[t]his error effectively means that the CCA’s Article 66,
UCMJ, review was improper.” This reasoning, however, in-
correctly equates the existence of an error with the existence
of prejudice. Error and prejudice are separate problems. Not
all errors in conducting a review under Article 66(c), UCMJ,
are prejudicial. See, e.g., United States v. Ginn, 

,
243, 246 (C.A.A.F. 1997) (holding that the Court of Criminal
Appeals exceeded its authority under Article 66(c), UCMJ, by
purporting to resolve conflicting post-trial affidavits but con-
cluding that the error caused no prejudice); United States v.
Akbar, 

, 408 & n.32 (C.A.A.F. 2015) (holding that
“[e]ven if the CCA erred by failing to perform a proportional-
ity review” under Article 66(c), UCMJ, “any error was harm-
less”); United States v. Roderick, 

, 431 (C.A.A.F.
2006) (holding that the Court of Criminal Appeals exceeded
its Article 66(c), UCMJ, authority by considering evidence ex-
cluded at trial, but finding the error harmless).1
          B. The Convening Authority’s New Action
   No prejudice to Appellant occurred while the case was
back before the convening authority. The ACCA’s instruction
did not cause the convening authority to decide to dismiss the
rape specification and to reassess the sentence. The record
makes clear that the convening authority chose that course

   1  In United States v. Holt, 

(C.A.A.F. 2003), and
United States v. Jenkins, 

(C.A.A.F. 2004), the Court did
not decide whether egregious errors in conducting an Article 66(c),
UCMJ, review—namely, relying heavily on excluded evidence and
uncritically copying much of the government’s brief into the judicial
opinion—caused prejudice. Instead, in both cases, the Court simply
remanded for a new review under Article 66(c), UCMJ. But as Ginn,
Akbar, and Roderick demonstrate, the Court does not always as-
sume that an error in conducting an Article 66, UCMJ, review
makes the review “incomplete” or “improper,” and automatically
causes prejudice. On the contrary, only “where the underlying va-
lidity of the Article 66(c), UCMJ, review is in question” do we as-
sume prejudice. United States v. Beatty, 

, 459 (C.A.A.F.
2007). Such is not the case here. As explained above, any error in
the ACCA’s instruction to the convening authority did not—and
could not, given the prospective nature of the instruction—have ma-
terially affected the ACCA’s initial review.




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           United States v. Gonzalez, No. 19-0297/AR
                  Judge MAGGS, dissenting

because the other two options—a rehearing on the rape spec-
ification and the sentence or a dismissal of the rape specifica-
tion and a rehearing on the sentence only—were both imprac-
tical. Accordingly, the convening authority would not have
chosen either one of them even if the ACCA had not provided
an instruction regarding reassessment of the sentence.
    When the convening authority reassessed the sentence,
the terms of the instruction did not prejudice Appellant. Alt-
hough the instruction limited the convening authority’s dis-
cretion in reassessing Appellant’s sentence, the limitation
could only have benefitted Appellant. The instruction did not
require the convening authority to sentence Appellant to a
dishonorable discharge and confinement for six years. In-
stead, the ACCA indicated that the convening authority could
reassess and affirm “no more than a dishonorable discharge
and confinement for six years.” Under the ACCA’s order, the
convening authority therefore had discretion to sentence Ap-
pellant to a sentence of less than six years, and the ACCA
retained the power to review the appropriateness of the sen-
tence approved.
    I disagree with Appellant’s argument that the ACCA’s in-
struction prejudiced him because it “enticed the convening
authority to abdicate his proper role in the process.” Appel-
lant’s theory is that the order relieved the convening author-
ity of the significant difficulty of actually reassessing the sen-
tence. He asserts that “with a mere pen stroke, the convening
authority avoided the significant cost, labor, and time associ-
ated with a rehearing in a case as complex as this.” I reject
this contention because nothing in the record supports Appel-
lant’s assertion that the convening authority abdicated his re-
sponsibility or otherwise acted improperly. When the record
is silent on how a convening authority acted, “the presump-
tion of regularity requires us to presume that he carried out
the duties imposed upon him by the Code and the Manual.”
United States v. Wise, 

, 478, 

, 194
(1955); see also United States v. Scott, 

, 4 (C.A.A.F.
2008) (applying a “presumption of regularity” to the conven-
ing authority’s actions (internal quotation marks omitted) (ci-
tation omitted)). The mere fact that the convening authority
approved the maximum sentence authorized by the ACCA




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           United States v. Gonzalez, No. 19-0297/AR
                  Judge MAGGS, dissenting

does not rebut this presumption because convening authority
could have concluded that this sentence was appropriate.
                C. The ACCA’s Second Review
    Finally, no prejudice to Appellant occurred when the case
returned to the ACCA. Nothing in the record suggests that
the instruction prevented Appellant from receiving a proper
review of his case by the ACCA under Article 66, UCMJ, after
the convening authority approved the sentence of six years on
remand. On the contrary, the ACCA’s per curiam decision on
further review expressly stated: “On consideration of the en-
tire record, we hold the findings of guilty and the sentence as
approved by the convening authority correct in law and fact.”
In United States v. Clark, 

, 300 (C.A.A.F. 2016),
this Court concluded that a CCA “acted within its statutory
prerogatives under Article 66(c),” UCMJ, based on “the pre-
sumption of regularity that applies to the acts of the appellate
military judges, and the CCA’s statement that it applied the
statutory prerogatives.” I would reach the same conclusion
here.
                        II. Conclusion
    For the foregoing reasons, we need not decide in this case
whether the ACCA’s instruction on remand was unauthor-
ized. Even if it was an error, it caused Appellant no prejudice
when he initially appealed to the ACCA, when the case was
returned to convening authority, or when the ACCA again re-
viewed the findings and sentence. For these reasons, I would
affirm the decision of the ACCA.




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