UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman LOUIS E. SHYERS

United States Air Force

ACM S32273

16 December 2015

Sentence adjudged 3 June 2014 by SPCM convened at Joint Base San 

Antonio-Lackland, Texas. Military Judge: Natalie D. Richardson (sitting 

alone).

Approved Sentence: Bad-conduct discharge, confinement for 7 days, hard 

labor without confinement for 30 days, forfeiture of $1000.00 pay, and 

reduction to E-1.

Appellate Counsel for the Appellant: Captain Virginia M. Bare.

Appellate Counsel for the United States: Major Jeremy D. Gehman and 

Gerald R. Bruce, Esquire.

Before

ALLRED, TELLER, and ZIMMERMAN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

ZIMMERMAN, Judge:

At a special court-martial composed of a military judge sitting alone, Appellant 

was convicted, consistent with his pleas, of wrongful use of a controlled substance 

analogue and obstruction of justice, in violation of Articles 92 and 134, UCMJ, 10 U.S.C. 

§ 892, 934. The court sentenced Appellant to a bad-conduct discharge, confinement for 7 

days, hard labor without confinement for 30 days, forfeiture of $1,000.00, and reduction 

to E-1. The convening authority approved the sentence as adjudged.
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On appeal, Appellant requests this court award meaningful sentencing relief for 

post-trial processing delays because the Government violated the 120-day post-trial 

processing standard for convening authority action and failed to docket the case with this 

court within 30 days. We hold the Government violated post-trial processing standards, 

but sentencing relief is not warranted. We affirm the findings and sentence.

Background

On three occasions between July and September 2013, Appellant used a controlled 

substance analogue, 25I-NBOMe, which is a synthetic LSD substance. When 

questioned, he lied to Air Force investigators about his friend’s use of synthetic LSD. At 

his trial on 3 June 2014, Appellant pled guilty to the charges and their specifications. 

In his stipulation of fact and during the providence inquiry, Appellant explained

that he had used the controlled substance analogue on three occasions with his friends 

either in his on-base dormitory room or at a local park. Appellant had acquired the drugs 

either through a friend or by ordering the drugs online with delivery to the military 

installation. On the last occasion of illegal drug use at an off-base park, his friend had 

adverse reactions to the drug and Appellant was unable to calm or restrain the friend, so 

he left him at the park, resulting in an investigation into the friend’s drug use. 

When Air Force investigators questioned Appellant about his activities at the local 

park, Appellant lied to the agents and told them he had not used any mood-altering 

substance, he had no knowledge of his friend engaging in any misconduct, and when he 

left his friend at the park there was nothing wrong with his friend. Later, Appellant told 

his friend to not tell investigators anything. 

Post-trial Processing Delay

Appellant argues for meaningful sentencing relief because the Government took 

130 days to process his case from the trial end date to convening authority action, and 

then 45 days passed before the case was docketed with this court.1 Appellant claims 

these facial violations of speedy post-trial benchmarks were due to clerical delays and 

were unreasonable. The Government moved for, and we granted, attachment of 

supplemental affidavits from two paralegals involved in post-trial processing of this case. 

We review de novo Appellant’s claim that his due process rights were violated due 

to post-trial delay. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006) (citing 

United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004); United States v. Cooper, 

58 M.J. 54, 58 (C.A.A.F. 2003)). Where the convening authority’s action is not taken 

within 120 days of the end of trial, we apply a presumption of unreasonable delay; 

however, “[t]he Government can rebut the presumption by showing the delay was not 

unreasonable.” Moreno, 63 M.J. at 142.

 

1 The record shows Appellant’s trial ended on 3 June 2014, the convening authority took action 129 days later on 10 

October 2014, and the case was docketed 45 days later on 24 November 2014.
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We presume unreasonable delay in this case because 129 days had lapsed when 

the convening authority took action and 45 days lapsed before the case was docketed. 

We thus consider the remaining factors set forth in Barker v. Wingo, 407 U.S. 514, 530 

(1972), including the reasons for the delay, Appellant’s assertion of the right to timely 

review, and prejudice. Moreno, 63 M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 

83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)).

Regarding the reasons for the delay prior to convening authority action, the 

processing time included transcription and assembly of the record when the court reporter 

was apparently busy with duties related to other cases, as well as a 16-day extension of 

time for Appellant to submit clemency matters to the convening authority. The 45-day 

processing time prior to docketing of this case included several attempts to correct 

clerical mistakes associated with the record of trial before the record could be released for 

docketing. We also consider the lack of evidence of malicious delay. 

We find the reasons for the delay from end of trial to convening authority action to 

docketing were adequately explained, and we balance these reasons with any evidence of 

prejudice and demand for timely review. In this case, Appellant did not demand timely 

review, nor did he indicate any prejudice resulting from post-trial processing of his case. 

Accordingly, after balancing all Barker factors, we find no violation of Appellant’s due 

process right to speedy post-trial review. 

Lastly, we review Appellant’s request for relief pursuant to United States v. 

Tardif, 57 M.J. 219 (C.A.A.F. 2002). Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), 

this court is empowered “to grant relief for excessive post-trial delay without a showing 

of actual prejudice within the meaning of Article 59(a), UCMJ, 10 U.S.C. § 859(a), if it 

deems relief appropriate under the circumstances.” Id. at 224 (quoting United States v. 

Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)) (internal quotation marks 

omitted). In United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), our superior 

court held that a service court may grant relief even when the delay was not “most 

extraordinary.” The court held “[t]he essential inquiry remains appropriateness in light of 

all circumstances, and no single predicate criteria of ‘most extraordinary’ should be 

erected to foreclose application of Article 66(c), UCMJ, consideration or relief.” Id. We 

find relief is not appropriate in this case. 

Conclusion

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

materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 

66(c), UCMJ. 
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Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court