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_______ _______ __________ No. ACM S 3 2514

_______ _______ __________ UNITED STATES Appellee

v. Keag e n A

. LUD OWESE Airman First Class (E

- 3 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the Uni ted States Air Force Trial Judiciary
Decided 17 June 201 9

_______ _______ __________ Military Judge: Ryan A. Hendricks

. Approved sentence: Bad

- conduct discharge, confinement for 45 days, hard labor without confinement for 45 days , reduction to E

- 1 , and a

re primand . Sentence adjudged 13 February 2018 by Sp CM convened at Eglin Air Force Base, Florida

. For Appellant: Major Todd M. Swensen, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Michael T. Bunnell, USAF; Mary Ellen Payne, Esquire; Justin A. Miller (civilian intern). 1
Before JOHNSON, POSCH
, and KEY , Appellate Military Judges

. Judge KEY delivered the opinion of the c ourt, in which Senior Judge JOHNSON and Judge POSCH joined.

_______ _______ __________ This is an unpublished opinion and , as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

1 Mr. Miller was a legal intern wi th the Air Force Legal Operations Agency and was at all times supervised by attorneys admitted to practice before this court.United States v. Ludowese , No. ACM S32514

2 _______ _______ __________ KEY , Judge:
A special court

- martial composed of a military judge convicted Appellant, in accordance with his pleas, of one specification of wr ongful use of cocaine , in violation of Article 1 1 2 a , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 9 1 2 a

. 2 The court

- martial sentenced Appellant to a bad

- conduct discharge, confinement for 60 days , hard labor without confinement for 45 days, reductio n to the grade of E

- 1 , and a reprimand . In accordance with a pretrial agreement (PTA), the convening authority approved confinement for only 45 days but otherwise approved the sentence as adjudged

. Also in accordance with the PTA, the convening authority w ithdrew and dismissed with prejudice a s pecification alleging fraudulent enlistment charged as a violation of Article 83, UCMJ, 10 U.S.C. § 883.
P ursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), Appellant asserts on appeal that his sente nce is inappropriately severe

. We find no error tha t materially prejudiced a substantial right of Appellant and affirm the findings and sentence.

I. B ACKGROUND In November 2017, Appellant attended an off

- base house party hosted by a civilian friend. A t the p arty , Appellant mentioned to the host that “it would be nice to do cocaine tonight .” With the host’s assistance, the two connected with a local drug dealer and purchased cocaine, which Appellant proceeded to

use

. One of the other party

- goers witnessed and photographed Appellant’s cocaine use

. Approximately two days later, Appellant’s conduct at the party was the topic of conversation between two of the party

- goers and a security forces Airman assigned to a nearby installation. The Airman obtained a copy of the picture showing Appellant using cocaine and gave it to investigators from th e Air Force Office of Special Investigation s . On 7 November 2017, Appellant waived his rights under Article 31, UCMJ, 10 U.S.C. § 831, and confessed to us ing cocain e

. Forensic a nalysis of Appellant’s urine, obtained viasearch authorization, revealed the presence of cocaine metabolites, corroborating Appellant’s confession.

2 Unless otherwise noted, a ll referen ces in this opinion to the Uniform Code of Military Justice and Rules for Courts

- Martial are to the Manual for Courts

- Martial, United States (2016 ed.).United States v. Ludowese , No. ACM S32514

3 II. D ISCUSSION We review issues of sentence appropriateness de novo

. United States v. Lane , 64 M.J. 1, 2 (C.A .A.F. 2006) (citing United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990))

. Our authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen , 54 M.J. 294, 296 (C.A.A.F. 2001) (citation s omitted)

. We may affirm only as much of the sentence as we find correct in law and fact and determine should be approved on the basis of the entire record. Article 66(c), UCMJ , 10 U.S.C. § 866(c) . “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offense, the appellant’s record of service, and all matters contained in the record of trial.” United States v. Anderson , 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citation omitted) . Although we have great discretion to determine whether a sentence is appropriate, we have no power to grant mercy. United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted)

. In February 2018, Appellant and the convening authority entered into a PTA wherein Appellant agreed, inter alia , to plead guilty to one specification of wrongful use of cocaine. In exchange, the convening autho rity agreed, inter alia , to withdraw and dismiss the remaining charge and specification of fraudulent enlistment and to not approve confinement in excess of 4 5 days if a bad

- conduct discharge were to be adjudged (if no such discharge were to be adjudged, t he convening authority would not approve confinement in excess of 90 days)

. During the sentencing proceeding, trial counsel recommended a sentence of three months’ confinement, a bad

- conduct discharge, “ maximum ” forfeitures, and reduction to the grade of E

- 1. The adjudged sentence included 60 days of confinement, which was reduced to 45 days by virtue of the PTA.
O n appeal, Appellant asserts his sentence for a single use of cocaine is inappropriately severe and he asks this court to disapprove the portion o f his sentence consisting of a bad

- conduct discharge. Appellant argues his conviction is ample deterrence and that a bad

- conduct discharge is unnecessary to rehabilitate him and will cause him difficulties in pursuing both education and employment. Appella nt points to no legal errors in his case and is essentially asking this court to grant him clemency

— an authority we are not vested with. W e consider ed A ppellant ; the nature and seriousness of his admitted offense ; his two

- year and five

- month record of mili tary service at the time of his trial ; and all matters contained in the record of trial , to include all matters he submitted in his case in extenuation, mitigation , and clemency . We conclude the approved sentence, including a bad

- conduct discharge , is not inappropriately severe.United States v. Ludowese , No. ACM S32514

4 We note that the convening authority’s action is dated 10 April 2018, but the promulgating order is dated 11 April 2018. See Rule for Courts

- Martial ( R.C.M. ) 1114(c)(2). In addition, the order fails to set forth the charge and
spec ification that were withdrawn after arraignment. See R.C.M. 1114(c)(1). We order the issuance of a new court

- martial order correcting these errors

.

III. C ONCLUSION The approved findings and sentence are correct in law and fact, and no error materially prejudic i al to the substantial rights of Appellant occurred

. 3 Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly
, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

3 The staff judge advocate’s recommendation to the convening authority erroneously stated the maximum imposable punishment included, inter alia , forfeiture of two

thirds of Appellant’s pay per mon th for 12 months and a fine. See R.C.M. 201(f)(2)(B)(i), 1003(b)(3); United States v. Books , No. ACM S32369, 2017 CCA LEXIS 226 at *7 (A.F. Ct. Crim. App. 31 Mar. 2017) . However, Appellant has not as serted and we do not find any colorable showing of possib le prejudice from the error under the facts of this case. See United States v. Kho , 54 M.J. 63, 65 (C.A.A.F. 2000).