### UNITED STATES NAVY

- MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before F.D. MITCHELL, J .R . MCFARLANE, S.A. DOMINGUEZ Appellate Military Judges

UNITED STATES OF AMERICA

v.

ALEJANDRO B. AGUILAR SERGEANT (E

- 5), U.S. MARINE CORPS

NMC CA 201300464 GENERAL COURT

- MARTIAL

**Sentence Adjudged:** 10 September 2013. **Military Judge:** Col Howard Russell, USMCR. **Convening Authority:** Commanding General, I MEF, U.S. Marine Corps Forces, Pacific, Camp Pendleton, CA

. **Staff Judge Advocate's Recommendat ion:**  LtCol D.P. Harvey, USMC. **For Appellant:** LT Jonathan M. Hawkins, JAGC, USN. **For Appellee:** Maj Paul M. Ervasti, USMC ; Capt Matthew M. Harris , USMC.

**31 July 2014** 

**--------------------------------------------------- OPINION OF THE COURT** 

**----------- ----------------------------------------** 

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge sitting as a general court

- martial convi cted the appellant, pursuant to his pleas, of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The appellant was sentenced to confinement for three years, forfeiture of all pay and allowances, a $45,000.00 fine, reduction to pay grade E

- 1, and a bad

- conduct discharge. The convening authority (CA)2 approved only so much of the sentence as provided for three years’ confinement, total forfeitures, a $45,000.00 fine, and a bad

- conduct discharge. 1 P ursuant to the terms of a pretrial agreement, the CA suspended all confinement in excess of 15 months.

The appellant raises two assignments of error: (1) that his fine was grossly disproportionate to his misconduct and thus excessive under the E ighth A m endment ; and
, (2) that a fine of $45,000.00 was inappropriately severe given the nature of the offense and the military character of the appellant.

After careful consideration of the record of trial, the parties’ pleadings, and the appellant’s assignments of error, we conclude that the findings and sentence are correct in law and fact and that no error was committed that was materially prejudicial to the substantial rights of the appellant. Art s

. 59(a) and 66(c), UCMJ.

**Background**

From June 2008 through June 2013, the appellant fraudulently received more than $100,000.00 by claiming Basic Allowance for Housing (BAH) to which he was not entitled. He also fraudulently received Family Separation Allowance while deployed on two separate occasions between Sep tember 2008 and
December 2010. The a ppellant received these funds based upon his representation that he had married a woman named BQ. While the record is unclear as to whether or not the appellant had legally married BQ in Mexico in 2002, the appellant v erified that he received BAH beginning as early as January 2003, but did not provide any financial support to BQ while continuing to receive BAH funds. 2 While the record reveals that the appellant received the BAH funds under false and fraudulent pretense s for a period of approximately 10 years, the military judge’s imposition of a fine was tied to the funds he received during

1 The CA ’s action contains no reference to the military judge’s imposition of a reduction to pay grade E

- 1. Accordingly, the adjudged reduction was neither app roved nor ordered executed. Nonetheless, a sentence which includes a bad

- conduct discharge results in an automatic reduction to E

- 1 by operation of law. See Art

. 58a, UCMJ.

2 The a ppellant had no further contact with BQ following the execution of his orders to Iwakuni, Japan in early 2004.3 the relevant period within the statute of limitations consistent with the charged offenses. While imposing the appellant’s

sentenc e, the military judge further advised that in selecting an appropriate fine, he had reviewed the Government’s evidence and attempted to determine the portion of the money the appellant would have received if he had independently claimed BAH benefits.

**Exc essive Fines** 

The a ppellant first argues that the $45,000.00 fine is excessive and thus prohibited under the Eighth Amendment. In this regard, the appellant claims that the awarded fine is “grossly disproportionate” to his crimes. The Eight h Amendment

pro hibits the imposition of excessive bail, excessive fines and cruel and unusual punishment.

To decide whether or not the appellant’s fine is barred by the Eighth Amendment, we must first determine if the fine falls within the Excessive Fines Clause of the Eighth Amendment, and if it does, we must then determine whether the fine is excessive. United States v. Bajakajian , 524 U.S. 321, 328

- 29 (1998). Since the fine imposed was to be paid to the Government as part of appellant’s sentence, the first prong of the analysis is met. United States v. Stebbins, 61 M.J. 366, 373 (C.A.A.F. 2005). The second prong requires further analysis. As the Court in Stebbins noted:

“T he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principl e of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. ” Therefore, if a fine is “ grossly disproportionate to the gravity of a defendant’s offense, ” it violates the E xcessi ve F ines
C lause

.

Id. (quo ting Bajakajian, 524 U.S. at 334) (footnote omitted)

.

The a ppellant freely admitted that he received over $113,000.00 in BAH funds between 19 June 2008 and 18 June 2013, even though he was not entitled to them. While the appella nt argues that the Government has initiated steps to4 administratively recoup that money, that fact has no impact on the legality of the fine imposed. Whether or not the Government will ever be in a position to recoup its losses is speculative. The imposi tion of a $45,000.00 fine under these circumstances was proportionate to appellant’s misconduct and was not excessive under the Excessive Fines Clause of the Eighth
Amendment.

**Severity of Sentence**

In his other assignment of error, the appellant avers that his sentence, which includes a $45,000.00 fine, is inappropriately severe. The a ppellant contends that the quality and character of his military service, including his multiple combat deployments and his resulting injuries militate against such a fi ne, and the fine is thus inappropriate.

Under Article 66(c), UCMJ, we independently review sentences within our purview and only approve that part of a sentence which we find should be approved. United States v. Baier, 60 M.J. 382, 383

- 84 (C.A.A.F. 2005 ). “Sentence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized consideration’ of the particular accused ‘on the basis of the nature and seriousness
of the offense and character of the offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982 ) (quoting United States v. Mamaluy , 27 C.M.R. 176, 180

- 81 (C.M.A. 1959)).

Upon re view of the entire record in this case, including the appellant’s military character and the physical maladies he has suffered during his deployments, we find that a fine of $45,000.00, in addition to the punishment otherwise imposed, was appropriate for t his offender and his misconduct. Given this finding, any consideration of appellant’s requested relief would amount to an act of clemency which is left to the “command prerogative” of the CA

. Healy, 26 M.J. at 396

.5 **Conclusion**

The findings and the sen tence as approved by the C A are affirmed.

For the Court

R.H. TROIDL Clerk of Court