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## A IR 

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_______ _______ __________

No. ACM 40 274 (f rev)

_______ _______ __________

UNITED STATES Appellee

v.

Ian M. W ILSON
Airman First Class (E

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

________________________ Appeal from the United States Air Force Trial Judiciary

Upon Further Review

Decided 5 February 2024

_______ _______ __________ Military Judge : Bryon T. Gl eisner ( Article 30a proceedings ) ; Brett A. Landry

. S entence : Sentence adjudged 1 February 2022 by GCM convened at the Oakland County Circuit Court in Pontiac, Michigan

. Sentence entered by military judge on 15 March 2022: Bad

- conduct discharge, forfeiture of $1,190.00 pay per month for 2 months , reduction to E

- 1, and a reprimand.
For Appellant : Major Matthew L. Blyth , USAF.
For Appellee : Lieutenant Colonel Thomas J. Alford, USAF ; Lieutenant Colonel J. Peter Ferrell, USAF; Major Olivia B

. Hoff, USAF ; Mary Ellen Payne , Esquire

. Before JOHNSON, ANNEXSTAD, and MASON

, Appellate Military Judges

. Judge MASON delivered the opinion of the c ourt, in which Chief Judge JOHNSON and Senior Judge ANNEXSTAD joined.

_______ _______ __________United States v. Wilson , No. ACM 40274 (f rev)

2 This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

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

- martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of one charge and one specification of desertion with an intent to remain away permanently terminated by apprehension , in violation of Article 85 , Uniform Code of Military Justice (UCMJ ) , 10 U.S.C. § 885

. 1 The military judge sentenced Appellant to a
b ad

- conduct discharge, forfeiture of $1,190.00 pay per month for two months,
reduction to the grade of E

- 1, and a reprimand

. The convening authority took no action on the findings or sentence.
Appellant originally raise d three assignments of erro r : (1) whether this

c ourt should order correction of the entry of judgment, which incorrectly state d that the convening authority denied a deferment request when Appellant only made a suspension request ; (2) whether a missing convening order necessitate s remand; and (3) whether Appellant’s sentence is inappropriately severe. 2
Additionally, the court’s r eview of the record indicate d that the compact disc (CD) purporting to contain the audio recording s of all open sessions of the trial failed to capture the final session wherein the military judge apparently reopened Appellant’s court

- martial to announce his corrected sentence.

We remand ed the case for correction of the entry of judgment ( I ssue 1)

, insertion into the record of trial of the missing convening order ( I ssue 2)

, and resolution of the issue of the missing audio recording of the last session of Appellant’s court

- martial . We deferred addressing Appellant’s allegation that his sentence is inappropriately sever e until the record wa s returned to this c ourt for completion of our Article 66 (d) , UCMJ, 10 U.S.C. § 866 (d)

, review. See United States v. Wilson , No. ACM 40274, 2023 CCA LEXIS 343, at *6 (A.F. Ct. Crim. App. 16 Aug. 2023) (unpub. op.). Issues 1 and 2 have been resolved as
directed

. The issue of the recording was also addressed and resolved . T he case is returned to us for review. Appellant acknowledges that I ssues 1 and 2 are now moot but still asserts that his sentence is inappropriately severe.

1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for Courts

- Martial are to the Manual for Courts

- Martial, United States (2019 ed.).

2 Appellant raises the third issue regarding the severity of his sentence pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

.United States v. Wilson , No. ACM 40274 (f rev)

3 I. B ACKGROUND
Appellant was stationed at Nellis Air Force Base (AFB), Nevada. On 3 January 2021, Appellant knew that he was under investigation for an allegation of sexual assault in Oakland County, Michigan . On 9 February 2021, Appellant’s mother called him and told him that the State of Michigan issued a warrant for his arrest . After he finished talking to her, Appellant packed his bag s and transferred nearly $10,000.00 from his savings account to his checking ac

count. He researched map information, “Canadian words

, ” and area information . He got in his car and started driving north away from Nellis AFB

, Nevada, with the intent to cross the border into Canada. At some point during the drive, Appellant formed the intent to remain away from his unit permanently. During the military judge ’ s inquiry into the providency of Appellant ’ s pleas, Appellant stated that he had driven too far to turn around and report to his next shift on time . H e decided that he would continue driving towards the
border and would not go back to his duty station . He proceeded until he was about 100 yards away from the United States

– Canada border in Washington State , where h e pulled into a neighborhood

, parked , and contemplated whether
he should cross the border. United States Border Patrol agents approached Appellant while he was parked and check ed his identification . They learned of
his deserter status and of open arrest warrant s issued by the United States Air
Force and the S tate of Michigan

. The agents contacted the local police who
arrested Appellant and arranged for his extradi tion to Michigan.

II. D ISCUSSION

A. Law
We review sentence appropriateness de novo. United States v. Lane , 64 M.J. 1, 2 n.8 (C.A.A.F. 2006). We may affirm only as much of the sentence as we find correct in law and fact and determine should be approved based on the entire record. Article 66(d), UCMJ. In determining whether a sentence should be approved, our authority is “not legality alone, but legality limited by appropriateness .” United States v. Nerad , 69 M.J. 138, 141 (C.A.A.F. 2010). “ We assess sentence appropriateness by considering the part icular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all
matters contained in the record

. . . . ” United States v. Fields , 74 M.J. 619, 625 (A.F. Ct. Crim. App. 2015) (citations omitted)

. In conducting our review, we must also be sensitive to considerations of uniformity and even

- handedness. United States v. Sothen , 54

. M.J. 294, 296 (C.A.A.F. 2001).United States v. Wilson , No. ACM 40274 (f rev)

4 W hen considering the appropriateness of a sentence, we may consider that a plea agreement to which Appellant agreed placed limits on the sentence that could be imposed. See Fields , 74 M.J. at 626.
While we have significant discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. Nerad , 69 M.J. at 14 8

. B. Analysis
Knowing that he was facing imminent arrest by civilian authorities as part of a sexual assault investigation, Appellant transferred nearly $10,000 .00 from
his savings account to his checking account. He researched map information,

“ Canadian words ” and area information

, and fled his duty station. He was apprehended by Border Patrol agents only about 100 yards from the United
States

– Canada border.

Before trial, Appellant’s trial defense counsel successfully negotiated a plea agreement that ensured Appellant would not be sentenced to any confinement or to a dishonorable discharge. Yet, Appellant personally asserts that his sentence is inappropriately severe.
We have conducted a thorough review of Appellant ’ s entire court

- martialrecord, including his record of service, and all matters submitted in extenuation and mitigation , including the fact that following his apprehension, he was confined awaiting trial for his civilian charge . We find that the nature and seriousness of the offense clearly support

, at a minimum, the adjudged sentence. Thus, the sentence is not inappropriately severe, and we affirm the sentence as adjudged.

III. C ONCLUSION
The findings and sentence as entered are correct in law and fact, and noerror materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court