UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32514

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UNITED STATES

Appellee

v.

Keagen A. LUDOWESE

Airman First Class (E-3), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 17 June 2019

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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 

reprimand. Sentence adjudged 13 February 2018 by SpCM 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 court, in which Senior Judge 

JOHNSON and Judge POSCH joined. 

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This is an unpublished opinion and, as such, does not serve as 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 with 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

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KEY, Judge:

A special court-martial composed of a military judge convicted Appellant, 

in accordance with his pleas, of one specification of wrongful use of cocaine, in 

violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 912a.2 The court-martial sentenced Appellant to a bad-conduct discharge, 

confinement for 60 days, hard labor without confinement for 45 days, reduction 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 withdrew and dismissed with prejudice a specification alleging fraudulent enlistment charged as a violation of 

Article 83, UCMJ, 10 U.S.C. § 883. 

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant asserts on appeal that his sentence is inappropriately severe. We find no 

error that materially prejudiced a substantial right of Appellant and affirm 

the findings and sentence. 

I. BACKGROUND

In November 2017, Appellant attended an off-base house party hosted by 

a civilian friend. At the party, 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 the Air Force Office of Special Investigations. On 7 November 2017, Appellant waived his rights under Article 31, UCMJ, 10 U.S.C. § 831, and confessed to using cocaine. Forensic analysis of Appellant’s urine, obtained via 

search authorization, revealed the presence of cocaine metabolites, corroborating Appellant’s confession.

 

2 Unless otherwise noted, all references 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

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II. DISCUSSION

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) (citations 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 authority agreed, inter 

alia, to withdraw and dismiss the remaining charge and specification of 

fraudulent enlistment and to not approve confinement in excess of 45 days if 

a bad-conduct discharge were to be adjudged (if no such discharge were to be 

adjudged, the 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.

On appeal, Appellant asserts his sentence for a single use of cocaine is inappropriately severe and he asks this court to disapprove the portion of 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. Appellant 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. We considered Appellant; the nature and seriousness of his admitted 

offense; his two-year and five-month record of military 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

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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 

specification 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. CONCLUSION

The approved findings and sentence are correct in law and fact, and no 

error materially prejudicial 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 twothirds of Appellant’s pay per month 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 asserted 

and we do not find any colorable showing of possible 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).