This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Gene N. WILLIAMS, Sergeant

United States Army, Appellant

No. 23-0006

Crim. App. No. 20130582

Argued October 24, 2023—Decided May 9, 2024

Military Judges: Karin G. Tackaberry (arraignment and pretrial 

motions), Tara A. Osborne (pretrial motions),

Stephen E. Castlen (trial), and

Christopher Martin (rehearing)

For Appellant: Captain Kevin T. Todorow (argued); 

Colonel Michael C. Friess, Lieutenant Colonel Dale 

McFeatters, Major Bryan A. Osterhage, Major Sean 

Patrick Flynn, and Jonathan F. Potter, Esq. (on brief);

Major Mitchell D. Herniak.

For Appellee: Captain Dominique L. Dove (argued); 

Colonel Christopher B. Burgess, Lieutenant Colonel 

Jacqueline J. DeGaine, Lieutenant Colonel Pamela L. 

Jones, and Captain Lisa Limb (on brief); Major Kalin P. 

Schlueter.

Judge SPARKS delivered the opinion of the Court, in 

which Chief Judge OHLSON, Judge MAGGS, Judge 

HARDY, and Judge JOHNSON joined.

_______________
United States v. Williams, No. 23-0006/AR

Opinion of the Court

2

Judge SPARKS delivered the opinion of the Court.

This case is before us for a third time. Previously, in 

2013, a general court-martial composed of officer and 

enlisted members convicted Appellant, contrary to his 

pleas, of one specification of rape of TW, four specifications 

of forcible sodomy of SW, and five specifications of assault 

consummated by a battery of SW, in violation of Articles 

120, 125, and 128, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 920, 925, 928 (2000 & 2006). The 

panel sentenced Appellant to a dishonorable discharge, 

confinement for twenty years, forfeiture of all pay and 

allowances, and reduction to E-1. The convening authority

approved only a bad-conduct discharge, confinement for 

twenty years, forfeiture of all pay and allowances, and 

reduction to E-1. The lower court affirmed the findings and 

sentence. We granted review on whether the military judge 

abused his discretion by providing a propensity instruction, 

vacated the judgment of the lower court, and remanded the 

case to the lower court for further consideration of the

granted issue in light of United States v. Hills, 75 M.J. 350 

(C.A.A.F. 2016).1

Upon remand, the lower court again affirmed the 

findings and sentence, and we again reviewed the case. In 

our second decision, we found a Hills violation and set 

aside the findings of guilt as to the rape of TW specification, 

three specifications of forcible sodomy of SW, and the 

sentence.2 We authorized a rehearing of the set aside 

findings and the sentence. 

In 2019, Appellant was tried at a combined rehearing 

before a military judge at a general court-martial. The 

1 In Hills, we held that using charged misconduct as 

propensity evidence under Military Rule of Evidence 413 was an 

abuse of discretion and that the military judge’s accompanying 

members’ instructions “constituted constitutional error that was 

not harmless beyond a reasonable doubt.” 75 M.J. at 353.

2 We affirmed one specification of forcible sodomy of SW, by 

excepting the language of “divers occasions,” and affirmed the 

five specifications of assault consummated by battery of SW. 
United States v. Williams, No. 23-0006/AR

Opinion of the Court

3

rehearing offenses consisted of the three specifications of 

forcible sodomy of SW, and two new additional charges: one 

specification of aggravated sexual contact with EZ, a child 

under the age of twelve, and one specification of sodomy of 

EZ, a child under the age of twelve, in violation of Articles 

120 and 125, UCMJ, 10 U.S.C. §§ 920, 925. The rape 

specification of TW, for which Appellant was found guilty 

at his first trial, and which we set aside and authorized for 

rehearing, was dismissed by the Government.

At the rehearing, contrary to his pleas, Appellant was 

found guilty of the three specifications of forcible sodomy of 

SW and one specification of child sodomy of EZ. Appellant’s 

sentence for these offenses, along with the resentencing for 

the five specifications of assault consummated by battery

of SW, was a dishonorable discharge, confinement for 

thirty-five years, forfeiture of all pay and allowances, and 

reduction to E-l. 

On appeal, the lower court then set aside Appellant’s 

conviction for child sodomy of EZ, finding it was statutorily 

time-barred pursuant to United States v. McPherson, 81 

M.J. 372 (C.A.A.F. 2021). At this point, Appellant 

remained convicted of four specifications of forcible sodomy

of SW, and five specifications of assault consummated by a 

battery of SW. The lower court reassessed Appellant’s 

sentence in light of United States v. Winckelmann, 73 M.J. 

11 (C.A.A.F. 2013), and concluded that it could affirm only 

so much of the sentence that provided for a dishonorable 

discharge, confinement for nineteen years, forfeiture of all 

pay and allowances, and reduction to the grade of E-1. We 

then granted review of the following issue:

Whether the Army Court abused its discretion in 

reassessing Appellant’s sentence.

United States v. Williams, 83 M.J. 257 (C.A.A.F. 2023) 

(order granting review).

This Court will set aside a sentence reassessment by a 

Court of Criminal Appeals only when necessary to correct 

an obvious miscarriage of justice or an abuse of discretion. 

United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). We 
United States v. Williams, No. 23-0006/AR

Opinion of the Court

4

hold that there was not an obvious miscarriage of justice

and to the extent there was an abuse of discretion there is 

no prejudice.

I. Background

A. 2013 Court-Martial

The initial allegations against Appellant were brought

by his ex-wives, SW and TW. Both testified to violent 

marriages that involved rape, in the case of TW, and 

forcible anal sodomy and battery, in the case of SW.

As we described in our prior opinion:

Appellant married TW in May 2000. During 

trial, TW testified that while they were married, 

Appellant raped her on divers occasions between 

late 2000 and early 2003. TW claimed that 

Appellant forced her to have nonconsensual 

sex “[q]uite often, three or four times a week, 

sometimes every[]day of the week” over a 

108-week period. TW’s rape allegations formed 

the basis of Charge I.

After Appellant and TW divorced in 2004, 

Appellant married SW. Appellant and SW were 

married for nearly eight years, during which time 

Appellant allegedly forcibly anally sodomized her 

and physically assaulted her multiple times. SW 

testified that on one occasion in November 2007, 

she escaped from Appellant’s grasp while he was 

anally sodomizing her. She sought safety in their 

children’s bedroom and attempted to barricade 

the door, but Appellant kicked in the door, causing 

it to come crashing down on her head. Scared for 

her life and bleeding from her head, SW ran to a 

neighbor’s house for help. That neighbor called 

911, and an ambulance transported SW to the 

hospital. Photographs taken that night document 

the broken door and SW’s injuries from the 

assault.

United States v. Williams, 77 M.J. 459, 461 (C.A.A.F. 2018)

(alterations in original) (footnote omitted).
United States v. Williams, No. 23-0006/AR

Opinion of the Court

5

B. Rehearing

At the rehearing, Appellant’s stepdaughter, EZ,

testified that, when she was seven or eight years old and 

living in Germany, Appellant drove her to a secluded part 

of the woods and put his penis in her anus. SW again 

testified that Appellant forcibly sodomized her on multiple 

occasions.

C. Sentence Reassessment3

On appeal, the lower court set aside Appellant’s 

conviction for child sodomy of EZ, finding it was statutorily 

time-barred. Because the lower court set aside the child 

sodomy conviction, it next needed to determine whether it 

could reassess the sentence. First, the lower court 

determined by its setting aside of the sodomy of a child 

under the age of twelve, Appellant remained convicted of 

the same offenses approved by the convening authority 

from the first court-martial with the exception of the rape 

of TW specification previously set aside, and the two 

sodomy specifications that were no longer on divers 

occasions but on one occasion. Therefore, the lower court 

determined that it was limited in its sentence 

reassessment to no greater than Appellant’s twenty years 

of confinement that was approved by the convening 

authority at his original court-martial pursuant to Article 

63, UCMJ, 10 U.S.C. § 863 (2012), and Rule for CourtsMartial (R.C.M.) 810(d).

In Winckelmann, 73 M.J. at 15-16, we set forth the 

following list of four illustrative, although not exclusive, 

factors for the lower court to consider in determining 

whether to reassess a sentence or order a rehearing on the 

sentence:

3 The case facts quoted and cited in this section were taken 

from the lower court’s memorandum opinion on further review, 

United States v. Williams, No. ARMY 20130582, 2022 CCA 

LEXIS 345, 2022 WL 2100908 (A.F. Ct. Crim. App. June 10, 

2022) (unpublished).
United States v. Williams, No. 23-0006/AR

Opinion of the Court

6

(1) Dramatic changes in the penalty landscape 

and exposure.

(2) Whether an appellant chose sentencing by 

members or a military judge alone. . . .

(3) Whether the nature of the remaining offenses 

capture the gravamen of criminal conduct 

included within the original offenses and, in 

related manner, whether significant or 

aggravating circumstances addressed at the 

court-martial remain admissible and relevant to 

the remaining offenses.

(4) Whether the remaining offenses are of the type 

that judges of the courts of criminal appeals 

should have the experience and familiarity with to 

reliably determine what sentence would have 

been imposed at trial.

(Citations omitted.)

Assessing the first Winckelmann factor, the lower court 

found that the dismissal of the child sodomy offense did not 

make “dramatic changes in the penalty landscape” in light 

of the offenses for which Appellant remained convicted, as 

he “still face[d] a maximum punishment of confinement for 

life without eligibility for parole.” Evaluating the second 

factor, the lower court found that Appellant’s choice of

sentencing by a military judge at the rehearing favored 

reassessment. The lower court found that the third 

Winckelmann factor favored reassessment because the 

remaining offenses captured the “gravamen of [the]

criminal conduct . . . in light of the offenses for which 

[A]ppellant was convicted in his original trial.” In this 

regard, the lower court noted that “[t]he gravamen of 

criminal conduct in the original trial centered around SW

and formed the basis of a significant number of the charges 

and specifications that spanned a variety of dates and 

locations,” compared to the rape specification involving TW

on one date and in one location. The lower court 

determined that the “gravamen of the criminal conduct 

[A]ppellant was charged with remain[ed] in the charges 

and specifications involving SW, along with the child 

sodomy charges.” Finally, regarding the previously set 
United States v. Williams, No. 23-0006/AR

Opinion of the Court

7

aside rape specification, the lower court found that the 

fourth Winckelmann factor favored reassessment because 

“based on [their] experiences as judges on [the] court,” the 

judges of the lower court were “familiar with the offense of 

rape such that [the judges could] reliably determine what 

sentence would have likely been imposed had [A]ppellant 

not been convicted” of the rape specification. The lower 

court then reassessed the sentence affirming only so much 

of the sentence as provided for nineteen years of 

confinement, forfeiture of all pay and allowances, reduction 

to E-1, and a dishonorable discharge.

II. Analysis

Appellant argues that the lower court failed to

adequately analyze the final three Winckelmann factors.

Appellant takes issue with the lower court finding that the 

second Winckelmann factor weighed in favor of 

reassessment because he was sentenced by a military judge 

at his second court-martial when “[t]he real sentence to be 

evaluated is the one adjudged at Appellant’s first courtmartial—done by members.” Appellant argues that the 

third Winckelmann factor did not favor reassessment 

because although he stands convicted of four instances of 

forcible sodomy of SW these crimes were not the gravamen 

of his misconduct when compared to the rape of TW.

Finally, Appellant contends that the fourth Winckelmann

factor did not favor reassessment because the lower court 

was not familiar with the remaining offense of forcible 

sodomy because it has not been a criminal offense since 

2016.

We will only disturb the lower court’s sentence 

reassessment in order to prevent obvious miscarriages of 

justice or abuses of discretion. Harris, 53 M.J. at 88. As an 

initial matter, due to the complex procedural history, it is

necessary for us to determine if the lower court had any 

sentence limitations when it conducted the sentence 

reassessment.4 Article 63, UCMJ, states, in pertinent part:

4 For purposes of this opinion, when we refer to “sentence 

reassessment” that includes both a Court of Criminal Appeals 
United States v. Williams, No. 23-0006/AR

Opinion of the Court

8

Upon a rehearing the accused may not be tried for 

any offense of which he was found not guilty by 

the first court-martial, and no sentence in excess 

of or more severe than the original sentence may 

be adjudged, unless the sentence is based upon a 

finding of guilty of an offense not considered upon 

the merits in the original proceedings.

 The implementing rule further provides:

When a rehearing or sentencing is combined with 

trial on new charges, the maximum punishment 

that may be imposed shall be the maximum 

punishment under R.C.M. 1003 for the offenses 

being reheard as limited in this rule, plus the total 

maximum punishment under R.C.M. 1003 for any 

new charges of which the accused has been found 

guilty.

R.C.M. 810(d)(1).

The 2013 court-martial convening authority approved 

Appellant’s sentence of a bad-conduct discharge, 

confinement for twenty years, forfeiture of all pay and 

allowances, and reduction to E-1. At Appellant’s rehearing, 

he was sentenced to a dishonorable discharge, confinement 

for thirty-five years, forfeiture of all pay and allowances, 

and reduction to E-l. At the time of the rehearing, this 

sentence complied with Article 63, UCMJ, even though it 

was a harsher sentence than the first court-martial 

sentence, as Appellant was found guilty of a child sodomy 

offense that was not considered on the merits at his 

original trial. However, when the child sodomy offense was 

later set aside by the lower court, Appellant was no longer 

found guilty of an offense that was not considered at his 

original trial. This negated the basis on which the thirtyfive years of confinement was a permissible sentence. Thus, 

the lower court correctly began Appellant’s sentence 

reassessment with a sentence limitation of no greater than 

deciding if it can perform a sentence reassessment in accordance 

with Winckelmann, and a Court of Criminal Appeals performing 

a sentence reassessment.
United States v. Williams, No. 23-0006/AR

Opinion of the Court

9

twenty years of confinement, as limited by his original 

trial.5

The lower court’s analysis considered both the first 

court-martial offenses and the rehearing offenses during 

its sentence reassessment review. Although Appellant was 

no longer found guilty of an offense that was not considered 

at his first court-martial when the lower court set aside the 

child sodomy conviction, this does not mean that the lower 

court was permitted to use the first court-martial, aside 

from the sentencing cap, in its sentence reassessment of 

the rehearing. We believe that part of the confusion as to 

which offenses to consider stems from the third factor in 

Winckelmann which states, “Whether the nature of the 

remaining offenses capture the gravamen of criminal 

conduct included within the original offenses.” 73 M.J. at 

16. Because the Court in Winckelmann reassessed the 

sentence from a single proceeding, the words “original 

offenses” were naturally used to describe the offenses 

charged in the first (and only) proceeding in that case. But 

here, there were multiple proceedings—Appellant’s initial 

court-martial and the rehearing. In this situation, a Court 

of Criminal Appeals should look to the proceeding that 

resulted in a sentencing error—usually the most recent 

proceeding—when conducting a Winckelmann

reassessment analysis. Because reassessment is conducted 

in response to a sentencing error, the analysis must 

therefore examine the proceeding that caused the error.

Nothing that happened prior to the rehearing, aside from 

the sentencing cap, was relevant to the lower court’s 

5 The lower court, however, failed to consider that in United 

States v. Mitchell, 58 M.J. 446, 448 (C.A.A.F. 2003), we stated 

that although the difference in a bad-conduct and dishonorable 

discharge may be subjective, for purposes of reviewing a 

rehearing “a dishonorable discharge is more severe than a badconduct discharge.” Accordingly, the lower court erred by 

affirming Appellant’s dishonorable discharge, which was more 

severe than the bad-conduct discharge approved by the 

convening authority at Appellant’s first court-martial. We 

correct this error in our decretal paragraph.
United States v. Williams, No. 23-0006/AR

Opinion of the Court

10

sentence reassessment. We do not sanction the lower 

court’s Winckelmann analysis for factors three and four 

that used the first court-martial’s rape offense in its 

analysis. Nonetheless, Appellant forcibly sodomized and 

assaulted SW on multiple occasions. The offenses he is 

convicted of have a maximum confinement sentence of life 

without eligibility for parole. However, consistent with 

Article 63, UCMJ, and R.C.M. 810(d), his sentence was 

capped at twenty years by the first court-martial. Under 

these circumstances, his sentence to nineteen years of 

confinement is not an obvious miscarriage of justice and to 

the extent that there was an abuse of discretion there is no 

prejudice.

III. Conclusion

The decision of the United States Army Court of 

Criminal Appeals is affirmed as to the findings and to only 

so much of the sentence as provides for a bad-conduct 

discharge, confinement for nineteen years, forfeiture of all 

pay and allowances, and reduction to E-1.