UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman SIERRA L. BLAIR

United States Air Force

ACM S32328

25 October 2016

Sentence adjudged 21 May 2015 by SPCM convened at Tinker Air 

Force Base, Oklahoma. Military Judge: Mark W. Milam.

Approved Sentence: Bad-conduct discharge, confinement for 30 days, 

and reduction to E-1.

Appellate Counsel for Appellant: Major Isaac C. Kennen.

Appellate Counsel for the United States: Lieutenant Colonel Roberto 

Ramirez and Gerald R. Bruce, Esquire.

Before

DUBRISKE, C. BROWN, and BENNETT

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 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

BENNETT,Judge:

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

found guilty, consistent with her pleas, of one specification of wrongful use of marijuana;

four specifications of wrongful possession and one specification of wrongful use of a 

Schedule II controlled substance (hydrocodone); one specification of failure to go at the 

prescribed time to her appointed place of duty; one specification of dereliction of duty; and 
2 ACM S32328

one specification of making a false official statement.

1

 The military judge sentenced her

to a bad conduct discharge, confinement for 30 days, and reduction to Airman Basic (E-1). 

The convening authority approved the sentence as adjudged. 

Appellant now questions the providency of her plea to wrongful possession and use

of hydrocodone, and argues that her sentence was inappropriately severe. Finding no error

that materially prejudices a substantial right of Appellant, we affirm the findings and 

sentence.

Background

Appellant was initially assigned to Travis Air Force Base (AFB), California, but 

received an expedited transfer to Tinker AFB, Oklahoma, to be closer to her family. 

While at Tinker AFB, Appellant, a Medical Technician, willfully failed to re-stock 

examination rooms as it was her duty to do. She then made a false official statement, telling 

her supervisor that she had re-stocked the examination rooms. On one occasion, she 

overslept and failed to get to her prescribed place of duty on time. Appellant wrongfully 

used marijuana on five separate occasions over a span of nine months. Four of these uses 

involved smoking marijuana with her boyfriend; the fifth use involved ingesting a 

marijuana laced gummy bear given to her by her father. Appellant also wrongfully used 

and possessed approximately 95 hydrocodone pills.

Additional facts necessary to resolve the assigned errors are included below.

Providence of Appellant’s Plea

Appellant makes two arguments to support her proposition that her guilty pleas to 

wrongful possession and use of hydrocodone were improvident. First, she argues that she 

should be relieved of criminal responsibility for her possession and use of hydrocodone 

because she had prescriptions for the medication. She makes this argument 

notwithstanding the fact that she obtained these prescriptions through subterfuge and used 

the medication for something other than its prescribed purpose. 

We review a military judge’s acceptance of a guilty plea for an abuse of discretion 

and questions of law arising from the plea de novo. United States v. Inabinette, 66 M.J. 

320, 322 (C.A.A.F. 2008). We afford significant deference to the military judge’s 

determination that a factual basis exists to support the plea. Id. (citing United States v. 

Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)); see also United States v. Barton, 60 M.J. 62 

(C.A.A.F. 2004). 

 

1 Articles 112a, 92, and 107, UCMJ; 10 U.S.C. §§ 912a, 892, and 907. 
3 ACM S32328

The elements of wrongful possession of a controlled substance are: (1) “[t]hat the 

accused possessed a certain amount of a controlled substance”; and (2) “[t]hat the 

possession by the accused was wrongful.” Manual for Courts-Martial, United States

(MCM), Part IV, ¶ 37.b.(1) (2012 ed.). The elements of wrongful use of a controlled 

substance are the same except that the operative verb and noun—“possessed” and 

“possession”—are instead “used” and “use.” Id. at b.(2). “‘Possess’ means to exercise 

control of something.” Id. at c.(2). “‘Use’ means to inject, ingest, inhale, or otherwise 

introduce into the human body, any controlled substance.” Id. at b.(10). To be convicted 

of either possession or use, the accused must be found to have knowingly possessed or used 

the controlled substance. Id. at c.(2) and (10). Also, the possession or use must have been 

“wrongful,” meaning “without legal justification or authorization.” Id. at c.(5). 

It is clear Appellant knowingly possessed and used approximately 95 hydrocodone 

pills during the charged timeframe, doing so after receiving prescriptions for the 

medication. The question is whether there was a sufficient legal and factual basis to 

conclude that Appellant’s possession and use were wrongful. For the following reasons, 

we find that there was a sufficient basis for accepting her guilty pleas to these offenses.

Dr. LC, Appellant’s primary care manager at Tinker AFB, initially prescribed 

hydrocodone for Appellant’s legitimate medical problems. The validity of this prescription 

for hydrocodone was never in dispute. In order to receive her initial prescription from Dr. 

LC, Appellant had to enter into a pain management agreement. Under the terms of the 

agreement, she was only to receive hydrocodone from Dr. LC and she was to inform Dr. 

LC if she received hydrocodone from any other care provider, including those off-base. 

After entering into the pain management agreement and getting her initial valid

prescription filled, Appellant began to seek medical care and hydrocodone prescriptions at 

different health-care facilities. When obtaining these additional prescriptions, Appellant

intentionally failed to inform each attending physician that she already possessed multiple 

prescriptions for hydrocodone. Appellant then had these prescriptions filled at different 

pharmacies. 

During her providence inquiry, Appellant admitted that she had become addicted to 

hydrocodone and started to abuse it.2 She developed a tolerance to the drug and used it 

more frequently than she was supposed to. This overuse caused her to run out of the 

medication more quickly, which is why she sought so many additional prescriptions from 

multiple physicians. 

Appellant received a total of four prescriptions and approximately 95 hydrocodone 

pills by intentionally misleading her physicians into thinking that she did not already have 

 

2 At trial, the parties stipulated that hydrocodone induces feelings of euphoria, sedation and alters the perception of 

painful stimuli. It can cause drowsiness, dizziness, nausea, and depressed respiration among other side effects.
4 ACM S32328

an active prescription for the drug. Appellant admitted she did not tell the prescribing

physicians that she had existing active prescriptions because she knew they would not have 

given her a new prescription for hydrocodone knowing that she already had an active one. 

Appellant admitted she did not have authorization to possess or use these hydrocodone 

pills, and she pleaded guilty, not only because she hoped to get a lighter sentence, but 

because she was convinced that she was, in fact, guilty.

Appellant seems to aver the existence of a “prescription defense”—that is, a 

complete defense to possession and use of hydrocodone because her prescriptions were 

facially valid, irrespective of her scienter in obtaining the prescriptions. In fact, Appellant 

claims that our superior court, in United States v. West, 34 C.M.R. 449 (C.M.A. 1964),

“flatly rejected the idea that there is a scienter exception to the prescription defense.” We 

disagree. With regard to scienter, our superior court opined:

One who possesses a drug pursuant to a valid prescription, or 

who obtains a narcotic in the performance of duty, is of course 

relieved of criminal responsibility, regardless of the existence 

of knowledge of any sort. But if possession is to be deemed 

innocent when the result of accident or mistake—as the 

Manual undeniably says it is—then an issue of knowledge most 

certainly enters the picture. . . . [T]he foregoing reasoning 

leads inevitably to the conclusion that the element of scienter 

is not eliminated from the crime of wrongful possession of a 

narcotic drug. . . .

West, 34 C.M.R. at 452 (quoting United States v. Greenwood, 6 C.M.A. 209 

(C.M.A. 1955) (emphasis added). It is clear that our superior court did not reject

scienter as an element of wrongful possession of a controlled substance, and the 

same reasoning equally applies to wrongful use of a controlled substance. When 

one knowingly misleads a physician into prescribing a controlled substance, that 

person is aware that their prescription is null and void. A person is not relieved of 

criminal responsibility if they possess or use a controlled substance pursuant to a 

prescription when they know that prescription is invalid. 

In Appellant’s case, her guilty plea is supported not only by the fact that she 

intentionally misled her physicians to get prescriptions for hydrocodone, but also 

because she admitted that she did not use the hydrocodone for its prescribed

purpose. 

It is well settled law that a valid doctor's prescription provides 

the authorization or legal justification to possess or use a 

controlled substance. See United States v. West, 15 C.M.A. 3, 

34 C.M.R. 449, 452 (C.M.A. 1964); United States v. 
5 ACM S32328

Greenwood, 6 C.M.A. 209, 19 C.M.R. 335 (C.M.A. 1955); 

United States v. Bell, ACM 30813 (A.F. Ct. Crim. App. 14 

December 1994). However, a doctor can only prescribe such 

medication as is required to treat valid medical conditions. In 

fact, military law has long held controlled substances 

prescribed by a doctor for invalid purposes will not provide the 

user or possessor with legal authorization, and those service 

members are subject to criminal liability. See United States v. 

Moore, 24 C.M.R. 647, 650 (A.F.B.R. 1957); United States v. 

Commander, 39 M.J. 972, 978-79 (A.F.C.M.R. 1994).

. . . .

Once an individual uses the controlled substance for some 

purpose other than medical treatment, the use is no longer 

legally justified or authorized and is wrongful. 

United States v. Pariso, 65 M.J. 722, 724 (A.F. Ct. Crim. App. 2007) (emphasis 

added). 

Contrary to Appellant’s assertions, Pariso, Moore, and Commander remain good 

law. Neither this court nor our superior court have issued any decision which can properly

be construed to mean that one may obtain a prescription for a controlled substance through 

subterfuge and then, with “legal justification or authorization,” possess and use that 

controlled substance pursuant to that same prescription. Thus, because Appellant

intentionally misled her physicians to procure hydrocodone so she could misuse it, the 

military judge properly found her guilty of wrongful possession and use of hydrocodone.

Next, Appellant argues that even if her fraud invalidated a prescription, such fraud 

may not be presumed. But here, the invalidity of the prescriptions was not presumed. 

“Fraud” was the term used at trial to describe Appellant’s means for obtaining her invalid 

prescriptions for hydrocodone. Appellant, both in her stipulation of fact and through her 

sworn testimony, unequivocally admitted to knowingly misleading multiple physicians by 

not informing them that she had an active prescription for hydrocodone. She did this

because she believed these physicians would not prescribe her the drug if they knew that 

she already had an active prescription. Calling this scheme a fraud is permissible, but 

unnecessary. The record contains an ample predicate for concluding that Appellant 

intentionally misled her attending physicians to obtain hydrocodone, making her use and 

possession wrongful. 

We find that the four prescriptions for hydrocodone that Appellant obtained by 

intentionally misleading her physicians were invalid. We also find that Appellant’s 

possession and use of the hydrocodone, pursuant to these same prescriptions, were for a 
6 ACM S32328

purpose other than legitimate medical treatment. For these reasons, we find that 

Appellant’s possession and use of hydrocodone were wrongful. There is no substantial 

basis in the law or fact to question her pleas, and the Care inquiry and stipulation of fact 

clearly support the military judge’s acceptance of Appellant’s guilty pleas. See United 

States v. Care, 40 C.M.R. 247 (C.M.A. 1983).

Appropriateness of Appellant’s Sentence

Appellant asserts that her sentence is inappropriate. We “may affirm only such 

findings of guilty and the sentence or such part or amount of the sentence, as [we] find[] 

correct in law and fact and determine[], on the basis of the entire record, should be 

approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness 

by considering the particular appellant, the nature and seriousness of the offenses, the 

appellant’s record of service, and all matters contained in the record of trial.” United States 

v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006); see also United States v. Snelling, 

14 M.J. 267, 268 (C.M.A. 1982). The purpose of Article 66(c) is to ensure “that justice is 

done and that the accused gets the punishment he deserves,” United States v. Healy, 26 

M.J. 394, 395 (C.M.A. 1988), based on an individualized consideration of the nature and 

seriousness of the offense and the character of the offender. United States v. Snelling, 14 

M.J. 267 (C.M.A. 1982). 

Appellant argues that the circumstances surrounding her misconduct demonstrate 

that she does not deserve a bad-conduct discharge, pointing in particular to significant 

personal trouble she was experiencing at the time she committed her offenses. Shortly 

after arriving at Travis AFB, her first duty location, Appellant reported that she had been 

sexually assaulted, off-base, by a civilian. Following the sexual assault, Appellant was 

evaluated by the Department of Veterans Affairs for post-traumatic stress disorder (PTSD). 

She was diagnosed with existing PTSD with major depressive disorder that was 

permanently worsened as a result of the service-connected sexual assault. Ultimately, the 

Department of Veterans Affairs assigned her a fifty percent disability evaluation for this 

condition. Appellant was also evaluated by an Air Force Physical Evaluation Board (PEB) 

and found to be unfit for duty. During the presentencing hearing, many of the findings of 

the Department of Veterans Affairs and the PEB were corroborated by the testimony of 

government witnesses and by Appellant’s mother.

While we have a tremendous discretion in determining whether a particular sentence 

is appropriate, we are not authorized to engage in exercises of clemency. United States v. 

Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); Healy, 26 M.J. at 395-96. Clemency is an act of 

mercy that is left to the convening authority and the Secretary of the Air Force—not this 

Court. See United States v. Poston, ACM S29062, unpub. op. at 3-4 (A.F. Ct. Crim. App. 

1996) (citing United States v. Joyner, 39 M.J. 965 (A.F.C.M.R. 1994).
7 ACM S32328

The maximum authorized sentence for Appellant’s crimes was the jurisdictional 

limit of her special court-martial: reduction to E-1, forfeiture of two-thirds’ pay per month 

for 12 months, confinement for 12 months, and a bad-conduct discharge. Appellant 

negotiated a pretrial agreement limiting confinement to three months if a bad-conduct 

discharge was adjudged, and six months if one was not adjudged. The approved sentence 

of a reduction to E-1, confinement for 30 days and a bad-conduct discharge was well within 

the discretion of the convening authority. Moreover, we have considered this particular 

Appellant, the nature and seriousness of her offenses, her record of service, all matters 

contained in the record of trial, and her arguments on appeal. While sympathetic to 

Appellant’s personal struggles, we conclude that the approved sentence is appropriate.

Promulgating Order

Although not alleged as an assignment of error, the initial court-martial order 

incorrectly states Appellant pleaded not guilty to Additional Charge II. We direct the 

publication of a new court-martial order to remedy this oversight. 

Conclusion

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

materially prejudicial to the substantial rights of the appellant 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

KURT J. BRUBAKER

Clerk of the Court