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_______ _______ __________
No. ACM 39253

_______ _______ __________
UNITED STATES Appellee

v.

Christian R. FLORES Airman First Class (E

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

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 13 September 2018

________________________ Military Judge: Brian D. Teter

. Approved sentence: Dishonorab le discharge, confinement for 7 years, forfeiture of all pay and allowances, and reduction to E

- 1

. Sentence adjudged 20 March 2017 by GCM convened at the United States Air Force Academy, Colorado.
For Appellant: Major Patrick A. Clary, USAF ; Major Jarett F. Merk, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne , Esquire

. Before HARDING, HUYGEN, and POSCH

, Appellate Military Judges

. Senior Judge HARDING delivered the opinion of the c ourt, in which Judge s HUYGEN and POSCH joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________ HARDING, Senior Judge:
A military judge sitting as a general court

- martial convicted Appellant, consistent with his pleas made pursuant to a pretrial agreement (PTA) , of twoUnited States v. Flores , No. ACM 39253

2 specifications of conspiracy, five specifications involving controlled substances

, two specifications of assault consummated by a battery, and one specification of housebreaking in violation of Articles 81

, 112a, 128, and 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 881, 912a, 928, 930. The military judge sentenced Appellant to a dishonorable discharge, confinement for eight

years , forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The convening authority , consistent with the limitation of the PTA, approved only seven years of confinement

, but otherwise approved the sentence as adjudged.
Appellant raises a singl e issue 1 on appeal: whether Appellant is entitled to sentence relief because confinement officials at the Navy Consolidated Brig at Charleston

, South Carolina

, have ignored his allergy to wool and refused to issue him a blanket made of a material other than wool. We find no prejudicial

error and affirm.

I. B ACKGROUND
A random urinalysis sample provided by Appellant on 15 September 2015 tested positive for cocaine and resulted in a n investigation that established Appellant used and distributed both cocaine and psilocybin mushrooms , conspired with civilians to distribute cocaine, and possessed o xycodone pills with the intent to distribute them. On 2 November 2015, investigators were notified of domestic violence offenses committed by Appellant. Specifically, Appellant
assaulted his wife on divers occasions by pushing her to the ground and striking her on the face. On 13 December 2015 , investigators learned that Appellanthad been admitted to a local hospital for a gunshot wound. Appellant had conspired with ot hers to steal drugs and cash fr om a local cocaine distributor, MB, in his home. A fter his co

- conspirator kicked open the door of M B ’s home, Appellant entered armed with a shotgun. MB, armed with a rifle, shot Appellant
in the hip and Appellant’s co

- conspir ator in the torso.
Appellant was ordered into pretrial confinement on 9 August 2016 and remained in that status until the day his sentence was adjudged on 20 March
2017. While in pretrial confinement status

, Appellant was confined at a civilian facility in Teller County, Colorado ; a military confinement facility at Francis E. Warren Air Force Base , Wyoming ; and the Naval Consolidated Brig at Miramar, California. 2 Although Appellant waived his right to request relief for

1 Pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982).

2 After his trial, Appellant was transferred to the Navy Consolidated Brig at Charleston, South Carolina

.United States v. Flores , No. ACM 39253

3 alleged violations of Article 13, UCMJ, 10 U.S.C. § 813, related to the conditions of his pretrial confinement, Appellant raise d his treatment while in pretrial confinement as a matter i n mitigation at sentencing . Appellant did not, however, ma ke any reference during his sentencing case to an issue with wool blankets. In his clemency submission, Appellant focus ed on the effects confinement had on him with an emphasis on his suicidal ideations and gestures. As in his sentencing case, he did not r aise an issue with wool blankets.

Now o n appeal

, Appellant makes the assertion that “[d]uring [his] time in confinement [he has ] not had any blankets due to a wool allergy.” As to the matter before us

— whether actions or inactions of officials at the Navy Consolidated Brig at Charleston , South Carolina, regarding the conditions of post

trial confinement provide a basis for relief

— Appellant asserts the same i ssue he experienced in pretrial confinement concerning his allergy to issued wool blankets has continued into post

- trial confinement.
After my court mar t ial [sic] in March in 2017 I was sent to NavConBrig Charleston [sic] I informed the intake personnel about my allergy and was told to talk to medical. After medical did nothing for my issue and den ied me the ability to have blankets bought out of my personal funds [sic] I spoke to the CO at the time and was told that he personally would take care of the issue. Again nothing came of this and after speaking to my lawyer I sent a DD

- 510 to the Air Forc e Liaison requesting to file an official complaint [sic] still to this day one month later I have no

response. Appellant attached the referenced Department of Defense Form 510

, Prisoner Request ( Mar

. 2013 )

, to his declaration to th is court

. However, t he fo rm does not specify an issue with denial of blankets and is not marked as a grievance. All Appellant wrote on th e form is “Respectfully request a meeting to file a [sic] official complaint [sic] thank you.”

II. D ISCUSSION
Appellant argues that “ [ a ] blanket is a basic necessity and denial of such a necessity is both inhumane and cruel” and that by “ [ i ] gnoring Appellant’s allergic reactions and forcing him to choose between continually suffering those allergic reactions or risk dangerously dropping hi s core temp er ature
, ” the confinement officials inflicted unnecessary and wanton pain prohibited by bothUnited States v. Flores , No. ACM 39253

4 the Eighth Amendment to the United States Constitution 3 and Article 55, UCMJ , 10 U.S.C. § 855

. We conclude that

, even if the facts as asserted by Appell ant are true, he failed to meet his burden of establishing grounds for relief. 4
We review de novo whether the facts alleged establi sh cruel and unusual punishment

. United States v. Lovett , 63 M.J. 211, 215 (C.A.A.F. 2006) (citation omitted). Both the Eight h Amendment and Article 55, UCMJ, prohibit crueland unusual punishment. In general, we apply “the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, [UCMJ,] except in circumstances where . . . legislative intent to p rovide greater protections under [Article 55, UCMJ,]” is apparent. United States v. Avila , 53 M.J.99, 101 (C.A.A.F. 2000). “[T]he Eighth Amendment prohibits two types of punishments: (1) those ‘incompatible with the evolving standards of decency that
mark the progress of a maturing society’ or (2) those ‘which involve the unnecessary and wanton infliction of pain.’” Lovett , 63 M.J. at 215 (quoting Estelle v. Gamble , 429 U.S. 97, 102

– 03 (1976)). A violation of the Eighth Amendment is shown by demonstrating:
(1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to [ A ppellant’s] health and safety; and (3) that [ A ppellant] “ has exhausted the prisoner

- grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938 [2000]

. ”

Lovett , 63 M.J. at 215 (third alteration in original ) ( internal footnotes omitted) (citation omitted)

. The Court of Appeals for the Armed Forces emphasized, “ [a] prisoner mustseek administrative relief prior to invoking judicial intervention to redress concerns regarding post

- trial confinement conditions.” United States v. Wise , 64 M.J. 468, 469 (C.A.A.F. 200 7) (citing United States v. White , 54 M.J. 469, 472 (C.A.A.F. 2001)). “ This requirement ‘ promot[es] resolution of grievances at the lowest possible level [and ensures] that an adequate record has been developed [to aid appellate review]. ’ ” Id . at 471 (alte ration s in original) (quoting United States v. Miller , 46 M.J. 248, 250 (C.A.A.F. 1997)). Except under some unusual

3 U.S. CONST. amend. VIII.

4 Having applied the decisional framework announced in United States v. Ginn , 47 M.J. 236, 248 (C.A.A.F. 1997) , and cons idered the entire record, we find we c an resolve the issues raised by Ap pellant without additional fact finding. See United States v. Fagan

, 59 M.J. 238, 24 1 (C.A.A.F. 2004).United States v. Flores , No. ACM 39253

5or egregious circumstance, an appellant must demonstrate he or she has exhausted the prisoner grievance process provided by the confinement facility
and has petition ed for relief under Article 138, UCMJ. White, 54 M.J. at 47 2 (citation omitted).
Appellant has neither exhausted the prisoner

- grievance system nor petitioned for relief under Article 138, UCMJ . All Appellant has demonstrated is that he requested a meeting to file a complaint. Accordingly, we conclude that Appellant does not warrant relief under the Eighth Amendment or Article 55, UCMJ.

We also consider whether we should exercise our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide sentence relief for the cond itions complained of by Appellant . Under Article 66(c), UCMJ, we have broad authority and the mandate to approve only so much of the sentence as we find appropriate in law and fact and may therefore grant se ntence relief even without finding an Eighth Amendment or Article 55, UCMJ, violation

. United States v. Gay

, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015)

, aff'd

, United States v. Gay

, 75 M.J. 264 (C.A.A.F. 2016) ; see United States v. T ardif , 57 M.J. 219, 223 (C.A.A.F. 2002). When this court considers judicial relief under Article 66(c), UCMJ, for conditions of post

- trial confinement, we have not strictly requiredan appellant to demonstrate that he has, absent unusual or egregious circumstances, previously exhausted administrative remedies. See United States v. Kyc , No. ACM S32391, 2017 CCA LEXIS 376, at *13

– 14 (A.F. Ct. Crim. App. 30 May 2017) (unpub. op. ). We instead consider the entire record and typically give “significant weight” to an appellant’s failure to seek administrative reliefprior to invoking judicial intervention, while recognizing the limits of our authority. United States v. Bailey , No. AC M S32389, 2017 CCA LEXIS 604, at *11 (A.F. Ct. Crim. App. 11 Sep. 2017) (unpub. op.)

. A fter considering the facts and circumstances in the present case , we decline to provide sentence rel ief under Article 66(c), UCMJ. As this court observ ed in United States v. Ferrando

, While we have granted sentence relief based upon conditions of post

- trial confinement where a legal deficiency existed, we are not a clearing house for post

- trial confinement complaints or grievances. Only in very rare circumstances do we anticipate granting sentence relief when there is no violation of the Eighth Amendment or Article 55, UCMJ.
77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omitted). This case does not present those very rare circu mstances

.United States v. Flores , No. ACM 39253

6 III. C ONCLUSION
The approved findings are correct in law and fact, the sentence is not inappropriate, and no error materially prejudicial to Appellant’s sub stantial rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court