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_______ _______ __________ No. ACM S 32728

_______ _______ __________ UNITED STATES Appellee

v. Jada FLORES Airman First Class ( E

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

________________________ Appeal from the United States Air Force Trial Judiciary
Decided 27 Jul y 202 3

_______ _______ __________ Military Judge : Pilar G. Wennrich

. S entence : Sentence adjudged 2 0 April 202 2 by Sp CM convened at MacD ill Air Force Base, Florida . Sentence entered by military judge on 11 May 202 2 : Bad

- conduct discharge
, confinement for 2 months
, forfeiture of $1 ,130.00 pay per month for 2 months , and reduction to E

- 1. For Appellant : M ajor Jenna M. Arroyo , USAF

. For Appellee : Captain Olivia B. Hoff, USAF; Captain Jocelyn Q. Wright, USAF ; Mary Ellen Payne , Esquire

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

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

.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Procedure 30.4

.

_______ _______ __________ GRUEN
, Judge :
A special court

- martial c omprised of a military judge convicted Appellant,

co nsistent with her pleas and pursuant to a plea agreement, of oneUnited States v. Flores, No. ACM S32728

2 specification of attempt to commit the offense of using false pretenses to obtain services
, one specification of making a false official statement, and t wo specification s of wrongful distribution of marijuana i n violation of Article s 80 , 1 07, and 1 12a , Unif orm Code of Military Justice ( UCMJ ) , 10 U.S.C. § § 880 , 9 07 , 9 12a

. 1 , 2 The military judge sentenced Appellant to a bad

- conduct discharge
, two months of confinement
, forfeiture of $1,130.00 pay per month for two months
, and reduction to the grade of E

- 1

. 3 The convening authority took no action on the findings or adjudged sentence. Appellant raises three issues: (1) whether the Specification of Charge III, alleging she made a false official statement
, fail ed to state an offense ; ( 2 ) whether the Specification of Charge III and S pecification 2 of Charge II , alleging Appellant attempt ed to use false pretenses to obtain services
, unreasonably multiplied the charges against her ; and (3) whether Appellant’s sentence is inappropriately severe. 4 With regard to issue (1) , Appellant pleaded guilty to this offense. As such
, we consider whether Appellant’s plea was provident and whether the military judge abused her discretion by accepting the plea

. We find Appellant’s plea s to Charge III and its S pecification w ere not provident and the military judge abused her discretion by accepting them

. Because we set aside the conviction for Charge III and its S pecification, we find issue (2) is moot. We affirm the remaining findings of guilty and the sentence, as reassessed.

I. B ACKGROUND App ellant was an entry control point security forces Airman

. In November 2021, the Air Force Office of Special Inves t igations began investigating her for distributing m arijuana to two other Airm e n. After Appellant learned of the investigation
, s he feared she would not be able to pay her apartment lease if she lost her job or went in to confinement

. Therefore, Appellant sought to be

1 Unless otherwise noted, all references in this opinion to the UCMJ are to the Manual for Courts

- Martial, United States (2019 ed.).

2 Appellant initially plead ed not guilty to Specification 1 of Charge II alleging an attempt to wrongfully distribute marijuana in violation of Article 80, UCMJ

. T h is specification was withdrawn and dismissed with prejudice in accordance with the plea agreement

.

3 Under the terms of Appellant’s plea agreement, the maximum sentence available was a bad

- conduct discharge, 4 months ’ confinement, forfeiture of two

- thirds pay per month for 12 months, reduction to the grade of E

- 1, and a reprimand

.

4 Appellant personally raise s issue (3) pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 8 2)

.United States v. Flores, No. ACM S32728

3 released from her lease obliga tions and to avoid paying the early lease termination fee of $3,178.00

. One of Appellant’s co

- wor ker s provided her with f alse permanent change of station ( PCS ) order s. A ppellant went to the leasing office of her apartment complex and presented the fa lse orders, along with a notice of intent to vacate, to Ms. YC , a civilian who worked ther e. Appellant signed and dated the intent to vacate notice 31 January 2022. The complex administration began processing Appellant’s paperwork but did not approve the early termination request and charged A ppellant the early lease termination fee. Appellant’s attempt to terminate her lease early gave rise to the charged specifications alleging false pretenses and false official statement in violation of Articles 80 and 107, UCMJ.

II. D ISCUSSION
A. Providenc y of Guilty Plea to False Official Statement

1. Law
This court r eviews “ [a] military judge’s decision to accept a guilty plea

. . . for an abuse of discretion.” United States v. Forbes , 78 M.J. 279, 281 (C.A.A.F. 2019) (quoting United States v. Eberle
, 44 M.J. 374, 375 (C.A.A.F. 1996)). A military judge’s legal conclus ions about the providency of the plea are reviewed de novo

. United States v. Harris , 61 M.J. 391, 398 (C.A.A.F. 2005). “[A] military judge must ensure there is a basis in law and fact to support the plea to the offense charged. ” United States v. Soto , 69 M.J. 304, 307 (C.A.A.F. 2011) (citing United States v. Inabinette , 66 M.J. 320, 321

– 22 (C.A.A.F. 2008) )

. A n abuse of discretion occurs when there is “a substantial basis in law or fact for questioning the plea.” Inabinette , 66 M.J. at 321

– 22 (quoting United States v. Prater
, 32 M.J. 433, 436 (C.M.A. 1991) (additional citation omitted) )

. A conviction based on a legal standard that does not constitute an offense is legally insufficient. United States v. Shavrnoch , 49 M.J. 334, 338

– 39 (C.A.A.F. 1998).
Ar ticle 107 , UCMJ, states that “ [a] ny person subject to this chapter who, with intent t o deceive

. . . makes any other false official statement knowing it to be false ; shall be punished as a court

- martial may direct.” 10 U.S.C. § 907(a). Official statements are those that affect military functions, which encompass matters within the jurisdiction of the military departments and S ervices. There are three broad categories of official statements under this offense: (i) where the accused makes a statement while acting in the line of duty or where the statement bears a clear and direct relationship to the accused’sofficial duties; (ii) where the accused makes a statement to a military member who is carrying out a military duty at the time theUnited States v. Flores, No. ACM S32728

4 st atement is made; or (iii) where the accused makes a statement to a civilian who is necessarily performing a military function at the time the accused makes the statement. Manual for Courts

- Martial, United States (2019 ed.) , pt. IV, ¶ 41

. c.(1)(b)

. In Unite d States v. Spicer , the United States Court of Appeals for the Armed Forces ( CAAF ) set out a framework for determining whether statements qualify as official for the purposes of Article 107, UCMJ. 71 M.J. 470 (C.A. A .F. 2013). The CAAF found “that official statements are those that affect military functions

. . . and which encompass [] matters within the jurisdiction of the military departments and services .” Id . at 47 3 . The court went on to say “[t]hese include statements based on the standpoint of the speaker, where either the speaker is acting in the line of duty or the statements directly relate to the speaker’s official military duties.” Id

. In both Spicer
, id . at 4 75, and United States v. Capel , 71 M.J. 485, 487 (C.A.A.F. 2013)
, the CAAF ruled that statements made to civilian police officers were not official statements for the purposes of Article 107, UCMJ

. This was “ because the statements in question were not purs uant to any military duties on the appellant’s part, nor were thecivilian police officers acting in conjunction with or on behalf of military authorities at the time the statements were made. ” United States v. Passut , 73 M.J. 27, 31 (C.A.A.F. 2014) ( first citing Spicer , 71 M.J. at 475; and then citing Capel
, 71 M

. J. at 487). Additional factors to be considered in determining whether a statement is “ official ” include the circumstances leading up to the statement, the circumstances surrounding the statement, whether there is a military interest in the subject matter, and whether there exists a clear and direct relationship to military duties. United States v. Cofer , 67 M.J. 555, 558 (A.F. Ct. Crim. App. 2008) (citing United States v. T effeau , 58 M.J. 62, 69 (C.A.A.F. 2003))

. This court has “broad discretion” to reassess a sentence after one or more specifications are set aside rather than remand the case for a new sentencing hearing. United States v. Winckelmann , 73 M.J. 11, 15 (C.A.A.F. 2013 ) (citation omitted). Our superior court has repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error.” United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986). The elements for determining whether this court can reliably reassess a sentence are set forth in Winckelmann , 73 M.J. at 11

– 16. This analysis is based on a tota lity of the circumstances with the following as illustrative factors: dramatic changes in the penalty landscape and exposure, theUnited States v. Flores, No. ACM S32728

5 forum, whether the remaining offenses capture the gravamen of the criminal conduct, whether significant or aggravating circums tances remain admissibleand relevant, and whether the remaining offenses are the type that we as appellate judges “have experience and familiarity with to reliably determine what sentence would have been imposed at trial.” Id

. at 16

. 2. Analysis

Th e issue in this case is not whether Appellant made a false statement, but whether that statement was official such that Appellant violated Article 107, UCMJ

. Here, Appellant offered false PCS orders to Ms. YC at the leasing office of her apartment complex
, stated she needed to cancel her lease because she was subject to a military move, and provided notice of her intent to vacate
, which is the false official statement charged in violation of Article 107, UCMJ.
We conclude that Appellant did not make the sta tement in the line of duty and that her notice of intent to vacate did not bear a clear and direct relationship to her military duties as a s ecurity f orces Airman

. Here, Appellant was acting in her personal capacity, attempting to break a residential lease
, of which the Air Force was not a party. She was not performing any military duty at the time. Therefore, we do not agree the evidence supports a conclusion thatAppellant was acting in the line of duty. Furthermore, the false statement Appellant made to her landlord regarding fictional PCS orders that she had no duty to obey bore no “clear and direct relationship ” to any actual official duty of hers

. F inally , her statement was not made to a military member carrying out military duties
, and Ms. YC wa s not performing a military function at the time

. The fact that the false statement related to fa lse military PCS orders

— orders that Appellant did not create or sign

— is not sufficient to conclude the statement was official for the purpose of this offense

. Ac cordingly, t he recordbefore us clearly demonstrates there is a substantial basis in law for questioning h er plea , and the military judge abused her discretion by accepting it. The finding s of guilty as to Charge III and its S pecification are set aside

. Having set aside Appellant’s conviction for Charge III and its S pecification, we consider whether we may reliably reassess Appellant’s sentence in light of the factors identified in Winckelmann , 73 M.J. at 15

– 16. We conclude that we

can. As ap pellate military judges, we are familiar with the sentences generally imposed by military judges for the remaining violations. Although the penalty landscape has changed, it has not changed dramatically
, and the remaining offenses still capture the gravame n of Appellant’s criminal conduct . T he military judge sentenced Appellant to one month of confinement f or the Article 107 , UCMJ, charge that we have set aside

. Appellant , however, also received one month and two months ’ confinement
, respect ively
, for the two distributionUnited States v. Flores, No. ACM S32728

6 of marijuana specifications
, and two months ’ confinement for attempt to defraud the a partment complex by false pretenses , with each term of confinement to run concurrently

. She could have received a bad

- conduct discharge and as much as four months of total confinement under the terms of the plea agreement she accepted. Accordingly, we find sentence reassessment is appropriate

. Based on our experience and familiarity with military justice , and t aking all pertinent factors into considera tion, w e are confident that absent the false official statement specification, the adjudged sentence still would have included at least a bad

- conduct discharg e , two months of confinement, forfeiture of $1,130.00 pay per month for two months, and reduction to the grade of E

- 1

. B. Sentence Severity

1. Law We review sentence appropriateness de novo. United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 20 0 6) (footnote omitted) . We “may affirm only such find ings 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. “We assess sentence appropriateness by considering t he 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. Anderson , 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omit ted). While we have great discretion indetermining whether a particular sentence is appropriate, we are not authorized to engage in clemency. United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted)

. 2. Analysis Appellant contends her sent ence to two months’ confinement and a bad

conduct discharge is excessive. We disagree and do not find Appellant’s sentence inappropriately sever e considering the record before us. When Appellant entered into her plea agreement, she knew she could receive a bad

- conduct discharge and as much as four months of confinement. Appellant received an appropriate sentence because she not only distributed drugs to other military members, including selling marijuana to another Airman, but she also devised a pl an to defraud the administration of her apartment complex in order to gain a personal financial benefit and u sed another Airman in the implementation of her scheme

. After careful consideration of the matters contained in the record of trial which were befo re the military judge
, the nature and seriousness of Appellant’s offenses, and her record of service, we find the sentence as adjudged is not inappropriately severe.United States v. Flores, No. ACM S32728

7 III. C ONCLUSION
The finding s of guilty as to the S pecification of Charge III and Charge III

are SET ASIDE

. The Specification of Charge III and Charge III are DISMISSED WITH PREJUDICE

. We reassess the sentence to a bad

- conduct discharge, confinement for two month s , forfeiture of $1,130.00 pay per month for two months, and reduction to the grade of E

- 1. The findings, as modified, and the sentence, as reassessed, are correct in law and fact, and no additional error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d)

. T he findings
, as modified, and the sentence , as reassessed, are AFFIRMED

.

FOR THE COURT

FLEMING E. KEEFE, Capt, USAF Acting Clerk of the Court