UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

 MULLIGAN, FEBBO and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class MICHAEL A. RUSSELL 

United States Army, Appellant 

ARMY 20150397 

Headquarters, Fort Campbell 

Steven E. Walburn, Military Judge 

Colonel Susan K. Arnold, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L. 

Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Captain Heather L. Tregle, 

JA; Captain Katherine L. DePaul, JA (on reply brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III, 

JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief); Major Anne C. Hsieh, JA. 

18 November 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

consistent with his pleas, of one specification of indecent language and six 

specifications related to the possession of child pornography, distribution of child 

pornography, receipt of child pornography, soliciting the production and distribution 

of child pornography, in violation of Articles 120b and 134, Uniform Code of 

Military Justice, 10 U.S.C. §§ 920b, 934 (2012 & Supp. I 2014) [hereinafter UCMJ]. 

The military judge sentenced appellant to a dishonorable discharge, confinement for 

fifteen years, forfeiture of all pay and allowances, and reduction to the grade of E-1. 

Pursuant to a pretrial agreement, the convening authority approved the adjudged 

sentence except that portion extending to confinement in excess of ten years. 

This case is before the court for review pursuant to Article 66, UCMJ. 

Appellant assigns two errors. One error warrants discussion, but no relief. 
RUSSELL—ARMY 20150397 

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BACKGROUND 

Appellant, among other things, pleaded guilty to soliciting his fourteen year 

old niece, on multiple occasions, to take digital pictures of her genitalia and nude 

body and send them to him. She complied, taking and sending the pictures. 

Specification 5 of Charge II involved the solicitation of distribution of child 

pornography by having the pictures sent to him. Specification 6 was the solicitation 

to create child pornography by taking the images of her genitalia and nude body. 

The dates and locations of the two specifications were otherwise identical. 

In appellant’s negotiated pretrial agreement, he agreed to waive “all waivable 

motions.” Despite that express language, appellant moved at trial for merger for 

sentencing of two sets of specifications, Specifications 1 and 4 of Charge 1 and 

Specifications 5 and 6 of Charge 1. The government did not object to the requested 

merger as contrary to the plea agreement, and joined the motion, which the military 

judge granted. The appellant now asks this court to find the two specifications that 

he requested be merged for sentencing, Specifications 5 and 6, be found an 

unreasonable multiplication of charges for findings. 

UNREASONABLE MULTIPLICATION OF CHARGES 

Appellant asserts that the military judge abused his discretion in not merging 

the solicitation offenses for findings. We disagree. Appellants’ plea of guilty, 

especially when part of a negotiated pretrial agreement, waived the issue of whether 

any of the specifications were unreasonably multiplied. United States. v. 

Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009). Unless the offenses are “facially 

duplicative” a guilty plea waives any claim that the offenses are unreasonably 

multiplied. Id. (citing United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004). As 

we have previously stated in United States v. Thomas, “the issue is not whether the 

military judge erred” but whether on appeal “we should exercise our awesome, 

plenary de novo power of review to notice waived and forfeited error.” ARMY 

20150205, 2016 CCA LEXIS 551 (Army Ct. Crim. App. 9 Sept. 2016) (citing United 

States v. Nerad, 69 M.J. 138, 141-42, 144, 146-47 (C.A.A.F. 2010)) (internal 

quotation marks omitted). We decline to do so. 

Appellant agreed to plead guilty to all the alleged specifications in his plea 

agreement waiving “all waivable motions.” Remarkably, the government did not 

object to the violation of this term at appellant’s court-martial by withdrawing from 

the agreement. Instead, they joined the motion to reduce appellant’s punitive 

exposure from seventy years to fifty-five years. Nothing in this record persuades us 

that we should exercise our discretionary authority to disturb that which appellant 

specifically negotiated. See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016). 
RUSSELL—ARMY 20150397 

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CONCLUSION 

The finding of guilty and sentence are AFFIRMED. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: