UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, MORAN,1

 and CAMPANELLA 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant TARENCE C. DIXON 

United States Army, Appellant 

ARMY 20120473 

Headquarters, XVIII Airborne Corps and Fort Bragg 

G. Brett Batdorff, Military Judge 

Colonel Paul S. Wilson, Staff Judge Advocate 

 

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA; 

Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L Varley, JA; 

Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief). 

31 July 2014 

--------------------------------- 

SUMMARY DISPOSITION 

--------------------------------- 

Per Curiam: 

 A military judge sitting as a general court-martial convicted appellant, 

contrary to his pleas, of assault consummated by battery, in violation of Article 128, 

Uniform Code of Military Justice, 10 U.S.C. § 928 (2006) [hereinafter UCMJ]. The 

military judge sentenced appellant to a bad-conduct discharge, confinement for 120 

days, and reduction to the grade of E-1. The convening authority approved the 

sentence and credited appellant with 246 days of confinement credit against the 

sentence to confinement. 

 This case is before us for review under Article 66, UCMJ. Appellant’s sole 

assignment of error warrants discussion but no relief. Appellant alleges his sentence 

is inappropriately severe because he served more time in pretrial confinement than 

the maximum authorized period of confinement for his sole conviction and because 

his conduct was an isolated incident. 

 

1

 Judge MORAN took final action on this case while on active duty. 
DIXON —ARMY 20120473 

2 

BACKGROUND 

Appellant’s Misconduct

 In the summer of 2011, a woman, CS, spent a night at appellant’s home. 

Appellant and CS had previously had a romantic relationship that had ended earlier 

that summer. The next morning, appellant returned from physical training in an 

angry mood. Appellant and CS began arguing. Eventually, CS tried to make a 

phone call to a friend because she was scared of appellant. She could not make the 

call because appellant snatched the phone out of her hand. 

 During the argument, appellant punched a hole in the wall, shocking CS. She 

did not try to fight him back. Appellant then put his hands around CS’s neck, 

squeezed, and choked her. CS suffers from asthma and had trouble breathing. The 

two continued to argue. Appellant pushed CS and then threw a Gatorade bottle at 

CS’s face, injuring her. The assault lasted between thirty and forty-five minutes, 

during which appellant would not let CS leave. 

 CS testified that she was in pain for three to four days after the assault, while 

the markings on her neck from the choking remained for approximately two months. 

She also testified that she became anti-social, defensive, and went months without 

talking to people. She also became more aggressive toward men, including her 

family members and had difficulty eating and sleeping and had nightmares. She 

testified that some of these effects continued up to the sentencing hearing and that 

she had trouble trusting men anymore. 

Appellant’s Pretrial Confinement and Trial 

 In October 2011, appellant’s commander preferred numerous charges and 

specifications against appellant. Appellant, who is HIV-positive, was charged with 

three specifications of willfully disobeying orders to inform sexual partners about 

his HIV status and to use a condom, in violation of Article 90. He was also charged 

with wrongfully using spice under two theories: by violating a lawful general 

regulation, in violation of Article 92 and by wrongfully using a Schedule 1 

controlled substance, in violation of Article 112a. Appellant was also charged with 

five specifications of aggravated assault, in violation of Article 128, for having 

sexual intercourse while HIV-positive. Finally, appellant was charged with assault 

consummated by battery for assaulting CS. Except for the assault of CS, appellant 

was either acquitted of the other offenses or the government dismissed those 

offenses. 
DIXON —ARMY 20120473 

3 

 Appellant was in pretrial confinement from 2 September 2011 until 3 October 

2011. He subsequently re-entered pretrial confinement from 14 October 2011 until 

he was sentenced on 15 May 2012. The convening authority credited appellant with 

246 days of confinement credit at action. 

 At trial, appellant presented evidence of his good military career and that he 

was a man who values education and his family. Appellant’s unsworn statement 

noted, inter alia, his difficult childhood, his burden of being HIV-positive, and his 

remorse for his misconduct. 

LAW AND DISCUSSION 

This court “may affirm only such findings of guilty and the sentence or such 

part or amount of the sentence, as it finds correct in law and fact and determines, on 

the basis of the entire record, should be approved.” UCMJ art. 66(c). Determining 

sentence appropriateness is a function of this court's duty to do justice. United 

States v. Healy, 26 M.J. 394, 395-396 (C.M.A. 1988). “Sentence appropriateness 

involves the judicial function of assuring that justice is done and that the accused 

gets the punishment he deserves.” Id. at 395. This is distinguished from clemency 

which “involves bestowing mercy.” Id. “Generally, sentence appropriateness 

should be judged by ‘individualized consideration’ of the particular accused ‘on the 

basis of the nature and seriousness of the offense and the character of the offender.’” 

United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). 

 

 A threshold issue is whether appellant’s sentence is inappropriate in light of 

appellant’s 246 days of confinement credit, which is longer than the authorized 

maximum confinement of six months permitted for assault consummated by battery. 

See Manual for Courts-Martial, United States (2008 ed.), Part IV, ¶ 54.e.(2). We 

note “there is no legal requirement that appellant be given credit for his pretrial 

confinement.” United States v. Smith, 56 M.J. 290, 293 (C.A.A.F. 2002). Our 

superior court has “never held that pretrial confinement which exceeds an adjudged 

sentence is per se prejudicial.” United States v. Danylo, 73 M.J. 183, 188 (C.A.A.F. 

2014) (citing Bell v. Wolfish, 441 U.S. 520, 539 (1979) (holding that, when 

“reasonably related to a legitimate governmental objective,” pretrial detention is not 

“punishment”) (internal quotation marks omitted)). Appellant does not on appeal 

contend that his pretrial confinement violated his speedy trial rights or was 

otherwise illegal or punitive in nature. See UCMJ arts. 10, 13, 55. However, we 

will consider this pretrial confinement, as part of the entire record, in determining 

the appropriateness of appellant’s sentence. 

Appellant argues that his assault against CS was an isolated incident. 

Appellant notes the evidence showing that he was a good student, despite a difficult 
DIXON —ARMY 20120473 

4 

childhood. Appellant also notes that he had never previously been subject to 

adverse action before as a soldier. 

However, an isolated criminal act is still a criminal act. Appellant seriously 

assaulted CS, causing her physical, emotional, and psychological injury. The impact 

and surrounding circumstances of this assault on CS were strong aggravation 

evidence. Additionally, we find legitimate, non-punitive reasons for appellant’s 

pretrial confinement, not least being the reasonable grounds that justified pretrial 

confinement in the first place.2

 See Rule for Courts-Martial 305(h)(2)(B). In this 

case, the sentence is appropriate. 

CONCLUSION 

On consideration of the entire record and the assigned error, we find the 

findings of guilty and the sentence as approved by the convening authority correct in 

law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED. 

 

 FOR THE COURT: 

ANTHONY O. POTTINGER 

 Chief Deputy Clerk of Court 

 

2

 The military magistrate determined that it was likely that appellant would commit 

future serious misconduct and less severe forms of restraint were inadequate. 

ANTHONY O. POTTINGER 

Chief Deputy Clerk of Court 

FOR THE COURT: