This opinion is subject to administrative correction before final disposition.

Before GASTON
, BAKER, and MYERS Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Javonte R. JACKSON Culinary Specialist Second Class (E

- 5 ), U.S. Navy Appellant

No. 20 2 100087

_________________________
Decided: 2 5 April 2022
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge: Kimberly J. Kelly
Sentence adjudged 11 December 2020 by a general court

- martial convened at Naval Base Kitsap, Bremerton, Washington , consisting of a military judge sitting alone

. Sentence in the Entry of Judgment: reduction to E

- 1, confinement for six months
, and a bad

- conduct discharge

. For Appellant: Captain Jasper W. Casey
, USMC
For Appellee: Cap tain Tyler W. Blair
, USMC Major Clayton L. Wiggins , USMCUnited States v. Jackson
, NMCCA No. 20 2 1000 87 Opinion of the Court

2 _________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM : Appellant was convicted, pursuant to his pleas, of violation of a lawful general order and assault consummated by a battery in violation of Article s 92 and 128 , Uniform Code of Military Justice [UCMJ]
, 1 for sexually harassing four junior Sailors and assaulting a fifth. In his sole assignment of error , he asserts that his punitive discharge i s inappropriately severe
, argu ing that he put on a strong case in extenuation and mitigation, was remorseful
, and acknowledged that he showed poor jud gment. We affirm the findings and sentence.



### I. B ACKGROUND

Between June 201 8 and April 2019, while assigned to USS Carl Vinson (CVN 70), Appellant sexually harassed four of his subordinate S ailors on multiple occasions

. He made sexual jokes and comments
, questioned them about their sex lives
, us ed sexually explicit language in their workspaces
, and shared details describ ing his own sex life. He later admitted that his actions were offensive and unwelcome, made the S ailors he supervis ed feel uncomfortable, and created a hostile work environment
, which impacted the ir ability to perform their duties and w as detrimental to good order and discipline

. I n May 2019, Appellant and his wife held a church dance routine practice at their home. One of Appellant’s femal e subordinate s attended the practice. When the practice concluded, Appellant walked the Sailor to her car. A s she turned to get into her car, he grabbed her hand and moved it toward his lower stomach area . I n doing so, he restraine d her and prevented her from leaving
, which made her uncomfortable and upset . He acknowledged that the Sailor did not consent to this act and that his actions caused her bodily harm. Appellant subsequently entered into a plea agreement, in which he agreed to plead guilty to the above

- described offenses in exchange for the convening authority agree ing to a confinement range of four to nine months and to withdraw and dismiss other specifications charging Appellant with sexual offenses

.

1 10 U.S.C. § § 892, 928.United States v. Jackson
, NMCCA No. 20 2 1000 87 Opinion of the Court

3 The agreement placed no limitation on the mil itary judge’s ability to adjudge

a punitive discharge or reduction in rank

.



### II. D ISCUSSION
We review sentence appropriateness de novo

. 2 T his Court may only affirm

“ the sentence, or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” 3 In exercising this function, we seek to assure that “justice is done and that the accused gets the punishment he deserves.” 4 Th e review requires

an “ individualized consideration of the particular accused on the basis of the nature and seriousness of the offense and the character of the offender. ” 5 In making this assessment, we analyze the record as a whole. We have significant discretion in determining sentence appropriateness, bu t we may not engage in acts of clemency. 6 Appellant’s punishment was the predictable result of the plea agreement he negotiated and voluntarily entered into with the convening authority. As Appellant acknowledged at trial, t he agreement provided that A ppe llant could be sentenced to the full range of punitive discharge options

— from no discharge to a dishonorable discharge

— and limited c onfinement to a period of between four and nine months. Thus, u nder the terms of the agreement the military judge could have sentenced Appellant to nine months ’ confinement and a dishonorable discharge. Instead
, s he adjudged a sentence that included only a bad

- conduct discharge and six months ’ confinement . Th is sentence was well within the parameter s of the plea agreement , and a s we have previously stated, “ w e generally refrain from second guessin g .

. . a sentence that flows f rom a lawful pretrial agreement

. . . .” 7

2 United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2006).

3 Article 66(d)(1), UCMJ

.

4 United States v. Healy , 26 M.J. 394, 395 (C.M.A. 1988).

5 United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal quotation marks omitted).

6 United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010).

7 United States v. Widak
, No. 20150030 9, 2016 CCA LEXIS 172 at *7 (N

- M. Ct. Crim. Ap p. Mar. 22, 2016) (unpublished); see also United States v. Casuso , No. 202000114, 2021 CCA LEXIS 328 at *8 (N

- M. Ct. Crim. App. June 30, 2021) (unpublished) (questioning an appellant’s “claim of inappropriate s everity when the sentence he received was within the range of punishment he was expressly willing to accept in exchange for his pleas of guilty”).United States v. Jackson
, NMCCA No. 20 2 1000 87 Opinion of the Court

4 I rrespective of the plea agreement , i n light of the serious and repeated nature of Appellant’s misconduct
, which adversely impacted the service of five S ailors and the Navy ’s accomplishment of its mission
, we find that the sentence including six months ’ confinement and a bad

- conduct discharge is just
, and that Appellant received the puni shment he deserves

. Despite evidence of his difficult childhood and prior record of good service, the evidence reveals an 11

- month course of unwanted sexual advances by Appellant that included not only propositioning his subordinates for sex, but also touching their private areas and trying to make them touch his without their consent. As a result , the victims suffered significant mental pain and anxiety. After reviewing the record as a whole, we find that the sentence is correct in la w, appropriately reflects the matters in aggravation, extenuation
, and mitigation presented, and should be approved.



### III. C ONCLUSION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. 8
T he findings and sentence are AFFIRMED

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

8 Articles 59 & 66, UCMJ

.