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_______ _______ __________ No. ACM 40281

_______ _______ __________ UNITED STATES Appellee

v. Dylan D

. O’H ARA Senior Airman (E

- 4 )
, U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United S tates Air Force Trial Judiciary

Decided 12 April 202 3

_______ _______ __________ Military Judge: Michael A. Schr ama

. S entence : Sentence adjudged on 3 March 2022 by a GCM convened at E glin A ir Force Base, Florida

. Sentence entered by military judge on 14 April 2022 : Dishonorable discharge , confinement for 26 months
, total forfeiture of pay, reduction to E

- 1 , and a reprimand

. For Appellant: Major Megan E. Hoffman
, USAF

. For Appellee: L ieutenant Colonel Thomas J. Alford, USAF; Major Morgan R. Christie , USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Esq uire ; Alexis R. Wooldri dge (Legal Intern)

. 1
Before JOHNSON , ANNEXSTAD and GRUEN
, Appellate Military Judges

. Judge ANNEXSTAD delivered the opinion of the court, in which Chief Jud ge JOHNSON and Judge GRUEN joined

.

_______ _______ __________

1 Ms. Wooldridge wa s a legal intern with the Government Trial and Appellate Operations Divi sion of the Military Justice and Discipline Dire ctorate and was at all times supervised by attorneys admitted to practice before this court

.United States v. O’Hara , No. ACM 40281

2 This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

_______ __ _____ __________ ANNEXSTAD , Judge : On 3 March 2022 , a military judge sitting as a general court

- martial at E glin Air Force Base, Florida , convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of one c harge and nine s pecifications of sexual abuse of a child under the age of 16 years in violation of Article 12 0 b, Uniform Code of Military Justice (UCMJ), 10 U.S.C . § 92 0 b. 2 Pursuant to the plea agreement , t he military judge sentenced Appellant to a dishonorable discharge, confinement for 26 months, total forfeiture of pay, reduction to the grade of E

- 1, and a reprimand

. 3 Appellant raises two issues on appeal : (1) whether Appellant’s sentence was inappropriately severe; and (2) whether A ppellant was denied the effective assistance of counsel under the Sixth Amendment 4 for alleged deficiencies in the performance of his trial defense counsel during sentencing argument

. 5 As to Appellant’s second issue , we find it does not warrant further discussion or relief. See United States v. Matias , 25 M.J. 356, 361 (C.M.A. 1987).Finding no error that materially prejudiced a substantial right of Appellant, we affirm the f

indings and sentence. 6

2 References to the punitive a rticle concerning Specification 1 of the Charge are to the Manual for Courts

- Martial , United States (2016 ed. ). All other r eferences to the UCMJ are to the Manual for Courts

- Martial
, United States ( 2019 ed.).

3 The sentencing parameters in the plea agreement included a range of confinement from 12 to 36 months for each specification , with all confinement running concurrently

. The plea agreement also specified that Appellant would receive a punitive discharge.

4 U.S. C ONST

. amend. VI.

5 Issue (2) was personally raised by Appellant pursuant to United States v. Grostefon
, 12 M.J. 431 (C.M.A. 1982).

6 We note that because Appellant was convicted of at least one offense that occurred prior to 1 January 2019 the convening authority was required to take action on his sentence , and that the convening authority ’s fail ure to do so in this case was error. See Executive Order 13,825, § 6(b) (1) , 83 Fed. Reg. 9889, 9890 (8 Mar. 2018); United St ates v. Brubaker

- Escobar , 81 M.J. 471, 47 2 (C.A.A.F. 2021) (per curiam)

. We also note that Appellant speci fic ally asserted in his brief to this court that he has not suffered any prejudice due to this error

. We agree and conclude that Appellant did not suf fer an y material prejudice as a result of this error

. See Brubaker

- Escobar
, 8 1 M.J. at 475 ( holding a n Appellant must demonstrate “material prejudice” to be entitled to relief for the convening authority’s error for failing to take action on the sentence )

.United States v. O’Hara , No. ACM 40281

3 I. B ACKGROUND
In Dece mber 2018, w hile Appellant was stationed at Eglin Air Force Base in Florida, his wife discovered several social media accounts that she believed Appellant was using to communicate with underage girls. After initially denying any communicat ion with under a g e girls, Appellant eventually admitted to his wife that he had “ an attraction to ” and had messaged a number of “ teenage girls” on social media platforms. As a result of these discoveries, Appellant and his wife met with a marriage counselor. During an appoi ntment , Appellant’s wife described to the counselor some of the messages Appellant sent to the teenage girls . The marriage counselor then stopped the session and explained to the couple that she was a mandatory reporter . She subsequently called the Fort Wa lton Beach Pol i ce Department (FWBPD) . After discerning that Appellant was an active

- duty servicemember
, the FWBPD informed the Air Force Office of Special Investigations (AFOSI). Soon thereafter, l aw enforcement officers searched Appellant’s person
, residence
, and vehicle
, and seized four cellular phones, a laptop computer , an Apple iPad , and a hard drive. When conducting an initial search of Appellant’s iPhone, AFOSI agents located messages between Appellant and his wife, one of which contained Appel lant’s admission
, “ I do have attraction to teenage girls .” The devices were then sent to the Defense Cyber Crime Center for analysis . There
, computer forensic examiners conducted a search of Appellant’s devices and recovered messages detailing Appellant’s online activities. During Appellant’s guilty plea inquiry , he admitted to initiating communicat i on with nine different girls between the age s of 12 and 15 years old through Snapchat, a social media application

. In each instance , Appe llant acknowledged that he requested the girl ’ s age , and knew either the ir actual age or that they were under 16 years old. Appellant then described in detail to the military judge that he engag ed in sexually explicit conversations with the girls , including asking a 13

- year

- old girl to “finger” herself and then send him the audio file
, telling another 14

- year

- old girl that she was “sexy” and ask ing her if she wanted to see his “c*ck
, ” and also asking a 12

- year

- old girl to “help [ him ] cum” and asking whether she mast urbates. Appellant also admitted that on each occasion concerning the specifications to which he pleaded guilty
, he request ed sexually explicit photos of each of the girls

. Appellant explained on one occasion he asked a 14

- year

- old girl to send him a video of her masturbating

. Additionally, Appellant admitted that he sent two pictures of his erect penis to a 14

- year

- old girl

. Appellant acknowledged that he sometimes sent a picture of himself in his Air Force uniform
, or he would inform them that he was in the Air Force. Finally, Appellant told the military judge that he discussed the possibility of meeting at least two of the girls in person.United States v. O’Hara , No. ACM 40281

4 II. D ISCUSSION Appellant argues that his senten ce to 26 months of confinement is inappropriately severe . Specifically, Appellant contends that his sentence failed to take into account two points : (1) that his offense s were “on the lower end of the severity spectrum . . . because he did not ever attempt to see, meet, or touch another person in real life” ; and (2) the fact that he has “proven rehabilitat ive potential.” We are not persuaded by Appellant’s arguments and find that the sentence is not inappropriately severe

. During presentencing
, the Governme nt introduced Appellant’s personal data sheet
, enlisted performance reports
, and an administrative demotion action for separate and unrelated misconduct . The military judge al so received a victim impact statement from one of the teenage girls
, in which she described how Appellant’s actions impacted her in a negative way. Appellant , meanwhile, introduced an affidavit from a forensic psychologist, who provided

— without specifically getting into Appellant’s background or offenses

— that the general re cidivism rate for “non

- contact” cases was low. Appellant also presented five character letters addressing his rehabilitative potential. Finally
, Appellant ’s mother testified about his childhood, military service, and her positive observations of him as bot h a husband and father. We review sentence appropriateness de novo. United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2006 ) ( citation omitted). We may affirm only as much of the sentence as we find correct in law and fact and determine should be approved on the basis of the entire record. Article 66(d)(1), UCMJ , 10 U.S.C. § 866(d)(1)

. “We assess sentence appropriateness by considering th e particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Sauk , 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteratio n in original) ( quoting United States v. Anderson , 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) ). While we have great discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemen cy. United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010).
We have considered the nature and seriousness of the offenses and have given individualized consideration to Appellant
, including h is upbringing, record of service, acceptance of responsibility, and pleas of guilty. We have also considered the materials offered by Appellant during presentencing. We find that 26 months of confinement is not an in appropriate ly severe pu n ishment for Appellant , who had sexually explicit conversation s with nine girls between the ages of 12 and 15 years old in order to gratify his sexual desires

. We also find it noteworthy that the record does not support Appellant’s argument that he never attempted to meet any of the girls in person, as he admitted in both the st ipulation of fact and during his guilty plea inquiry that he told one 13

-United States v. O’Hara , No. ACM 40281

5 year

- old girl, “ I was go nna [sic] see if you wanted to meet up sometime after we got to know each other
, ” while also admitting that he told one 12

- year

- old girl
, “I wish I could come to your house lol.” (Alteration in original). After careful consideration of Appellant’s arguments and the matters contained in the record of trial , we conclude the sentence is not inappropriately severe.

III. C ONCLUSION The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights 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