This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                   FOR THE   ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
             Kalab D. WILLMAN, Staff Sergeant
              United States Air Force, Appellant
                          No. 21-0030
                      Crim. App. No. 39642
          Argued April 20, 2021—Decided July 21, 2021
                 Military Judge: John C. Degnan
   For Appellant: Major Megan E. Hoffman (argued); Mark C.
   Bruegger, Esq. (on brief).
   For Appellee: Captain Cortland T. Bobczynski (argued);
   Lieutenant Colonel Matthew J. Neil and Mary Ellen Payne,
   Esq. (on brief).
   Judge HARDY delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge MAGGS joined.
   Judge SPARKS filed a dissenting opinion, in which Judge
   OHLSON joined.
                     _______________

   Judge HARDY delivered the opinion of the Court.
   In general, Article 66(c), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 866(c) (2012), restricts appellate review
performed by the Courts of Criminal Appeals (CCAs) to con-
sideration of the “entire record” of the case before them.1 This
Court has held, however, that the CCAs have authority to
consider evidence entirely outside the record when consider-
ing an appellant’s cruel and unusual punishment claims

   1 This case was referred to court-martial prior to January 1,
2019, and thus all post-trial procedures were performed in accord-
ance with the 2016 edition of the Manual for Courts-Martial,
United States (MCM). All references to the UCMJ, Rules for Courts-
Martial (R.C.M.), and Military Rules of Evidence (M.R.E.) are to the
2016 edition of the MCM.
            United States v. Willman, No. 20-0030/AF
                      Opinion of the Court

raised under the Eighth Amendment, U.S. Const. amend.
VIII, or Article 55, UCMJ, 10 U.S.C. § 855 (2012). United
States v. Erby, 

, 478 (C.A.A.F. 2001). This case
presents a question that straddles these two issues: whether
the CCAs have authority to consider outside-the-record evi-
dence submitted in support of an appellant’s Eighth Amend-
ment or Article 55, UCMJ, claims when performing sentence
appropriateness review under Article 66(c), UCMJ. Con-
sistent with the plain language of Article 66(c), UCMJ, and
this Court’s recent decision in United States v. Jessie, 

 (C.A.A.F. 2020), we conclude that the CCAs do not. Ac-
cordingly, we affirm the decision of the United States Air
Force Court of Criminal Appeals (AFCCA).
                        I. Background
    A military judge convicted Appellant, consistent with his
pleas, of one specification of indecent recording in violation of
Article 120(c), UCMJ, 10 U.S.C. § 920 (2012). Appellant was
sentenced to one year of confinement, reduction to E-4, and a
dishonorable discharge. During his post-trial confinement,
Appellant injured his big toe in a flag football game, an injury
for which Appellant now claims the Government failed to pro-
vide adequate care. Appellant never filed a formal complaint
about the allegedly insufficient care he received with the
prison health clinic, the prison administration, his com-
mander, or the convening authority (CA). Appellant also
waived his right to submit matters in clemency to the CA. As
a result, the record contains no mention of Appellant’s toe in-
jury or the subsequent medical treatment he received for that
injury. The CA approved the findings and Appellant’s sen-
tence as adjudged.
    On appeal to the AFCCA, Appellant asserted—for the first
time—that the allegedly deficient medical care he received vi-
olated his Eighth Amendment and Article 55, UCMJ, rights
against cruel and unusual punishment and rendered his sen-
tence inappropriate pursuant to Article 66(c), UCMJ. Appel-
lant detailed the nature of his injury, medical treatment, and
post-trial confinement conditions in a declaration, and filed a
motion requesting the AFCCA attach his declaration to his
assignment of errors. The AFCCA granted the request.




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           United States v. Willman, No. 20-0030/AF
                     Opinion of the Court

    After reviewing Appellant’s declaration, the AFCCA
determined that Appellant’s Eighth Amendment and Article
55, UCMJ, claims did not merit relief. United States v.
Willman, No. ACM 39642, 2020 CCA LEXIS 300, at *17–20,

, at *7 (A.F. Ct. Crim. App. Sept. 2, 2020)
(unpublished). The CCA concluded that, even if the facts
asserted in the declaration were true, Appellant failed to meet
his burden of establishing that the prison officials improperly
administered medical treatment and were deliberately
indifferent to his health and safety. 

–20, 

, at *7.
    Turning to Appellant’s Article 66(c), UCMJ, sentence ap-
propriateness claim, the AFCCA concluded that the plain lan-
guage of Article 66(c), UCMJ, and this Court’s decision in Jes-
sie, 

, precluded it from considering Appellant’s
“outside-the-record” affidavit. 2020 CCA LEXIS 300, at *21–
25, 

, at *7–9. Concluding that “the record
contains no support to grant sentencing relief on the basis of
Appellant’s claims about the conditions of post-trial confine-
ment,” the AFCCA affirmed the sentence as approved by the
CA. 

, at *9.
   We granted review of the following issue: “[w]hether the
lower court erred when it ruled that it could not consider evi-
dence outside the record to determine sentence appropriate-
ness under Article 66(c), UCMJ.” United States v. Willman,

 (C.A.A.F. 2020) (order granting review).
                    II. Standard of Review
   The scope, applicability, and meaning of Article 66(c),
UCMJ, is a matter of statutory interpretation that we review
de novo. United States v. Gay, 

, 267 (C.A.A.F.
2016) (citing United States v. Schloff, 

, 313
(C.A.A.F. 2015)).
                        III. Discussion
    Congress specified the jurisdiction and authority of the
CCAs in Article 66, UCMJ. The relevant section and applica-
ble version of the article states:
       [T]he Court of Criminal Appeals may act only with
       respect to the findings and sentence as approved by
       the convening authority. It may affirm only such



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            United States v. Willman, No. 20-0030/AF
                      Opinion of the Court

       findings of guilty and the sentence or such part or
       amount of the sentence, as it finds correct in law and
       fact and determines, on the basis of the entire rec-
       ord, should be approved.
Article 66(c), UCMJ. At first glance, these two sentences sug-
gest that the CCA’s role is straightforward—to review an ap-
pellant’s findings and sentence as approved by the convening
authority based on the “entire record.” But as we recently
acknowledged in Jessie, this Court’s various precedents re-
garding the scope of the CCA’s review of the “entire record”
can be difficult to reconcile. 79 M.J. at 443. Nevertheless, the
Court in Jessie explained how those cases should be under-
stood. Id. at 441–45 (reviewing in detail the Court’s prece-
dents analyzing Article 66(c), UCMJ).
    The Court began by reaffirming long-standing precedent
from United States v. Fagnan, 

, 193, 

, 193 (1961), which “established a clear rule that the CCAs
may not consider anything outside of the ‘entire record’ when
reviewing a sentence under Article 66(c), UCMJ.” Jessie, 79
M.J. at 441 (citing Edward S. Adamkewicz Jr., Appellate Con-
sideration of Matters Outside the Record of Trial, 32 Mil. L.
Rev. 1, 16 (1966)). In Fagnan, the intermediate appellate
court—then the Army Board of Review—declined to consider
two outside-the-record documents when it assessed the appel-
lant’s sentence: a psychiatric report that the Army Board of
Review itself had requested and a letter from a correctional
officer written on the appellant’s behalf. 12 C.M.A. at 193, 30
C.M.R. at 193. The Army Board of Review explained that nei-
ther document was “ ‘part of the record subject to review un-
der Article 66, and should not be considered with respect to
the appropriateness of the sentence as approved by the con-
vening authority.’ ” Id. at 193, 30 C.M.R. at 193 (quoting the
Army Board of Review’s opinion).
    Although this rule appears strict, the Court clarified in
Jessie that “Fagnan does not preclude the CCAs from consid-
ering prison conditions when reviewing a sentence under Ar-
ticle 66(c), UCMJ, if the record contains information about
those conditions.” 79 M.J. at 441. In addition to permitting
consideration of any materials contained in the “entire rec-
ord,” our precedents also authorize the CCAs to supplement
the record to decide any issues that are raised, but not fully



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            United States v. Willman, No. 20-0030/AF
                      Opinion of the Court

resolved, by evidence in the record. Two of the examples high-
lighted in Jessie illustrate these points.
    First, in Gay, 

, the appellant made a formal
clemency complaint about his post-trial confinement condi-
tions to the convening authority prior to the convening au-
thority taking action. Because clemency materials submitted
to the convening authority must be attached to the record of
trial, R.C.M. 1103(b)(3)(C), and the subsequent action of the
convening authority is part of the record of trial, R.C.M.
1103(b)(2)(D)(iv), evidence about the appellant’s post-trial
confinement conditions were incorporated into the entire rec-
ord. Thus, the CCA did not abuse its discretion when it con-
sidered the appellant’s post-trial confinement conditions
while exercising its Article 66(c), UCMJ, sentence reassess-
ment authority.
    Second, in United States v. Brennan, 

, 352–53
(C.A.A.F. 2003), the appellant described illegal post-trial pun-
ishment that she suffered in a clemency petition that she filed
with the convening authority prior to the convening authority
taking action. As explained above, those clemency materials
were thus part of the entire record and available for consider-
ation by the CCA. In addition to the clemency materials, both
the CCA and this Court also considered a subsequent state-
ment that the appellant filed before the Court of Criminal Ap-
peals. 

. In Jessie, the Court explained that, because
the Brennan appellant raised the issue in her clemency ma-
terials, the CCA’s review of her outside-the-record statement
was consistent with this Court’s long practice of using “ ‘extra-
record fact determinations’ ” to resolve certain appellate ques-
tions. 79 M.J. at 442–43 (quoting United States v. Parker, 

, 272 (C.M.A. 1993)).
   Finally, in Jessie, the Court recognized a significant ex-
ception to the Fagnan rule set forth in this Court’s prece-
dents: the CCAs may consider materials completely outside of
the “entire record” when determining whether the manner of
execution of an accused’s sentence violates either the Eighth
Amendment or Article 55, UCMJ. 

 (citing Erby, 54
M.J. at 479 (ordering factfinding into the appellant’s cruel
and unusual punishment claim raised for the first time before
the CCA) and United States v. Pena, 

, 266–67
(C.A.A.F. 2007) (reviewing the appellant’s outside-the-record


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            United States v. Willman, No. 20-0030/AF
                      Opinion of the Court

declaration to decide his cruel and unusual punishment claim
on the merits)). Acknowledging the significant tension be-
tween Fagnan and cases like Erby and Pena, this Court in
Jessie decided to apply Fagnan and “cabin[]” precedents like
Erby and Pena to their express holdings. Jessie, 79 M.J. at
444–45 (concluding that “the practice of considering material
outside the record should not be expanded beyond the context
of Article 55, UCMJ, and the Eighth Amendment”).
    Despite the Court’s careful analysis of our precedents in-
terpreting the scope of the CCAs’ Article 66(c), UCMJ, author-
ity in Jessie, this case presents a novel fact pattern that is not
squarely on point with the precedents described above. Here,
unlike in Gay or Brennan, Appellant did not raise his com-
plaints about his post-trial confinement conditions until his
appeal to the AFCCA. Appellant’s declaration was thus out-
side-the-record and, under Fagnan, the AFCCA had no au-
thority to review it for the purpose of assessing Appellant’s
sentence. However, under the Fagnan rule exception, the
AFCCA did have authority to consider the Appellant’s out-
side-the-record declaration for the purpose of evaluating Ap-
pellant’s Eighth Amendment and Article 55, UCMJ, claims.
The critical question then is once the AFCCA considered Ap-
pellant’s outside-the-record declaration to decide his cruel
and unusual punishment claims, could it also consider the
declaration to perform its Article 66(c), UCMJ, sentence ap-
propriateness review?
    Although we acknowledge that reasonable arguments can
be made to the contrary, we agree with the AFCCA that it
could not consider Appellant’s outside-the-record affidavit.
Forced to choose between strictly enforcing the Fagnan rule
and further expanding the exceptions to that rule that this
Court has created for cruel and unusual punishment claims,
we elect to apply Fagnan. Our reasoning mirrors that of the
Court in Jessie when it expressly declined to extend the hold-
ings of Erby and Pena beyond the context of the Eighth
Amendment and Article 55, UCMJ, claims. Jessie, 79 M.J. at
444 (“[W]e believe that Fagnan rather than Erby should con-
trol in this case.”).
   The Fagnan rule is derived from the plain language of the
statute, which states that the CCAs may only act “on the basis



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            United States v. Willman, No. 20-0030/AF
                      Opinion of the Court

of the entire record” when performing sentence appropriate-
ness review under Article 66(c), UCMJ. See Fagnan, 12
C.M.A. at 195, 30 C.M.R. at 195 (“[W]e cannot ignore the plain
words of the statute involved.”). As we noted in Jessie, this
Court’s precedents establishing exceptions to the Fagnan
rule, such as Erby and Pena, neither discuss Article 66(c)’s
express “entire record” restriction nor wrestle with the
Court’s seemingly contrary holding in Fagnan. Jessie, 79 M.J.
at 444. Presumably, because the Court believed that the
CCAs had a “duty” to determine on direct appeal whether the
appellant’s sentence was being executed in a manner that of-
fends the Eighth Amendment or Article 55, UCMJ, Erby, 54
M.J. at 478, the Court was unconcerned about whether the
evidence about an appellant’s post-trial confinement ap-
peared in the entire record or was proffered for the first time
on appeal. As the Court has long recognized, facts concerning
an appellant’s “post-trial confinement can rarely, if ever, be
made the subject of a brief by trial defense counsel or other-
wise made a part of the ‘entire record.’ ” Fagnan, 12 C.M.A. at
195, 30 C.M.R at 195. Accordingly, to whatever extent Article
66(c), UCMJ, imposes a duty to review all cruel and unusual
punishment claims on the CCAs, it would make no sense to
restrict that review to matters within the “entire record.”
    But it does not logically follow that just because this Court
has permitted the CCAs to review outside-the-record
materials to decide Eighth Amendment and Article 55,
UCMJ, claims, we must also authorize the CCAs to consider
those materials when they perform Article 66, UCMJ,
sentence appropriateness review. To conclude otherwise
would create a broad, extra-statutory exception that would
potentially swallow the text-based Fagnan rule. Any savvy
appellant who wished to supplement the record with outside-
the-record materials would have an incentive to do so by
raising Eighth Amendment or Article 55, UCMJ, claims—
regardless of their merit.
    Appellant argues that we can trust the CCAs to be the
gatekeepers of the “entire record,” admitting only those ma-
terials that are relevant to an appellant’s cruel and unusual
punishment claims. But we see no reason to impose a greater
burden on the CCAs to adjudicate arguments over whether
outside-the-record materials are relevant to an appellant’s


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           United States v. Willman, No. 20-0030/AF
                     Opinion of the Court

Eighth Amendment or Article 55, UCMJ, claims both by en-
couraging appellants to bring such claims and by raising the
consequences of such a determination. Further, there is a
wide range of outside-the-record materials about an appel-
lant’s post-trial confinement that would be relevant to such
claims (given the low bar for demonstrating relevancy) with-
out coming anywhere near establishing a right to relief. Ap-
pellant does not explain why it would be just to consider those
materials when the CCAs assess the sentence of an appellant
who makes an Eighth Amendment or Article 55, UCMJ, claim
but not to review the same materials for a similarly situated
appellant who does not assert those claims.
    It is probably true that we could mandate—and the CCAs
would ably execute—a complicated scheme to litigate these
issues and parse through an appellant’s proffered evidence,
admitting only the relevant and necessary parts and rejecting
the rest, but nothing in the text of Article 66(c), UCMJ, sup-
ports such a scheme. The fact that such a scheme would be
necessary raises questions not about the Fagnan rule, which
is based on the plain text of Article 66(c), UCMJ, but on our
precedents creating exceptions to the rule. As this Court’s re-
cent decision in United States v. Guinn, __ M.J. __, __ (14)
(C.A.A.F. 2021), acknowledged, arguments can be made that
this Court’s decisions in cases like Erby and Pena “are not
properly predicated on the plain language of that statute.” See
also id. at __ (2) (Maggs, J, concurring) (“I agree with the
Court that it may be argued, from the plain meaning of its
text, that Article 66(c), UCMJ, does not give a CCA jurisdic-
tion to address post-trial confinement conditions that are not
part of the approved sentence.”). Given these issues, we con-
clude that the correct approach here is to adhere to the rule
announced in Fagnan rather than to further expand the ex-
ception set forth in cases like Erby and Pena.
    Appellant argues that this result creates an incongruity,
with the CCAs having the authority to review outside-the-
record materials for some purposes, but not for others. We
acknowledge that this Court’s Article 66(c), UCMJ,
precedents have created an odd paradigm, but we do not
believe that oddness justifies further deviation from the plain
text of Article 66(c), UCMJ. The practice of considering
evidence for some purposes but not for others is not foreign to


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           United States v. Willman, No. 20-0030/AF
                     Opinion of the Court

American courts. See Fed. R. Evid. 105 advisory committee’s
note to the 1972 proposed rules (recognizing the practice of
“admitting evidence for a limited purpose”); see also David P.
Leonard, The New Wigmore: A Treatise On Evidence: Selected
Rules Of Limited Admissibility § 1.6.1 (3d ed. 2019)
(examining situations where evidence is logically relevant for
more than one purpose but admissible only for one). There is
no legal reason why the same practice cannot be applied here.
In any case, complete resolution of the incongruities in our
Article 66(c), UCMJ, precedents is not before us. As was the
case in Jessie, the question here “is not whether we must
follow one line of precedent and completely reject another, but
instead only whether we should expand recent precedents
like Erby into new contexts when this step would further
erode older precedents like Fagnan.” 79 M.J. at 444 n.9.
Again, we decline to do so.
    Finally, Appellant also argues that when the CCA granted
his motion to attach his outside-the-record declaration as an
appendix to his assignment of errors, the declaration became
part of the “entire record,” so the Fagnan rule should not ap-
ply. We disagree. Even after the CCA granted Appellant’s mo-
tion, his declaration about his post-trial confinement condi-
tions is neither part of the record of trial under R.C.M.
1103(b)(2), nor does it qualify as a matter attached to the rec-
ord of trial under R.C.M. 1103(b)(3). And because Appellant
waived his right to submit this matter for clemency to the con-
vening authority, the “entire record” contains nothing about
this issue, and thus the briefs and arguments that he and his
counsel submitted are not “allied papers” because they do not
address a matter in the record of trial. Jessie, 79 M.J. at 440–
41 (internal quotation marks omitted) (citation omitted). In
Jessie, this Court described cases like Erby and Pena as al-
lowing “the CCAs to consider materials outside the ‘entire rec-
ord’ when reviewing issues that were not raised by anything
in the record.” Id. at 443 (emphasis added). This Court has
never held, or even suggested, that outside-the-record mate-
rials considered to resolve an appellant’s cruel and usual pun-
ishment claims became part of the entire record. We decline
to do so in the present case.




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           United States v. Willman, No. 20-0030/AF
                     Opinion of the Court

                        IV. Decision
   For the reasons described above, we conclude that the
CCA did not err when it held that it could not consider evi-
dence outside the record to determine sentence appropriate-
ness under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012),
even when it had already considered that evidence to resolve
Appellant’s Eighth Amendment and Article 55, UCMJ, 10
U.S.C. § 855 (2012), claims. The decision of the United States
Air Force Court of Criminal Appeals is affirmed.




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            United States v. Willman, No. 21-0030/AF


   Judge SPARKS, with whom Judge OHLSON joins,
dissenting.
   I must dissent from the majority’s viewpoint that United
States v. Jessie, 

 (C.A.A.F. 2020), and United
States v. Fagnan, 

, 

 (1961),
preclude the lower court’s review of the appropriateness of
Appellant’s sentence pursuant to Article 66(c), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), where
Appellant raised his Eighth Amendment and Article 55,
UCMJ, 10 U.S.C. § 855 (2012), claims for the first time on
appeal and the lower court granted a motion to attach
documents relevant to such allegations.
    In Jessie, we held that other than claims of punishment in
violation of the Eighth Amendment or Article 55, UCMJ,
Article 66(c), UCMJ, does not authorize the lower court to
“consider materials outside the ‘entire record’ when reviewing
issues that were not raised by anything in the record.” 79 M.J.
at 443. I disagreed with this holding and would reiterate as I
did in my dissent in Jessie, that “the courts of criminal
appeals are bound, under Article 66, UCMJ, to consider any
colorable constitutional claim related to sentence
appropriateness even if that requires review of documents
outside the record of trial.” Id. at 448 (Sparks, J., dissenting).
    Putting my continued disagreement aside, I note that
neither    Jessie    nor    Fagnan      discussed     sentence
appropriateness review in the context of declarations
attached to the record for the purpose of deciding Eighth
Amendment and Article 55, UCMJ, allegations. An analogous
situation arose in United States v. Healy, 

 (C.M.A.
1988), where this Court commented in a footnote:
       If there is evidence of insanity after the trial has
       been completed and the convening authority has
       acted, the Court of Military Review can receive
       psychiatric information relevant to mental
       competence to stand trial, to cooperate with the
       appeal, or mental responsibility for the crime itself.
       Once admitted for this purpose, the information
       would be in the “record” and presumably could be
       used by the Court of Military Review in performing
       its task of determining what sentence is appropriate.
           United States v. Willman, No. 21-0030/AF
                  Judge SPARKS, dissenting

 (citation omitted). In my view, the same
outcome should occur in this case. Once the lower court
attached to the record Appellant’s declarations in support of
his Article 55, UCMJ, and Eighth Amendment claims, this
information became part of the record and the lower court was
required to consider this information in performing its Article
66(c), UCMJ, review. Furthermore, the majority is ignoring
Rule 23(b) of the Joint Rules of Appellate Procedure for
Courts of Criminal Appeals, which was promulgated
pursuant to Article 66(f), UCMJ. This rule authorizes the
lower courts to attach documents to the record, which is
precisely what was done in this case. Yet, the majority states
that Appellant’s declaration is not part of the entire record
because it does not fall within Rule for Courts-Martial
(R.C.M) 1103(b)(2) or R.C.M. 1103(b)(3). It would appear,
however, when the lower court attached these documents
they became part of the record under Rule 23(b) of the Joint
Rules of Appellate Procedure. The majority fails to account
for this rule.
    Article 66, UCMJ, is the central source of the lower court’s
authority to review any issue, to include alleged violations of
the Eighth Amendment and Article 55, UCMJ. It seems odd
for the majority to hold that, under Jessie and Fagnan, the
lower court has jurisdiction to review alleged violations of the
Eighth Amendment and Article 55, UCMJ, based on material
that was once outside the original record of trial until
attached to the record by the lower court, but does not have
jurisdiction to consider that same material for Article 66(c),
UCMJ, sentence appropriateness review. By holding that
these documents are outside the record, the majority’s new
rule violates the mandate in Article 66(c), UCMJ, to consider
the “entire record” when affirming “such part or amount of
the sentence.” Notwithstanding the majority’s view that they
are adhering to the plain text of the statute, a contrary view
emerges from my reading of the Court’s opinion. In my view,
the majority is, in essence, ignoring the law and refusing to
acknowledge the congressional delegation to the Judge
Advocates General. Moreover, the majority’s view sets up the
odd situation in this and future cases where documents that
are obviously part of the record are, curiously, simultaneously
outside “the entire record.”




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        United States v. Willman, No. 21-0030/AF
               Judge SPARKS, dissenting

For the foregoing reasons I must respectfully dissent.




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