## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant NAT HAN P. CANCELLIERI United States Army, Appellant

ARMY 20160525

Headquarters, 7th Infantry Division Kenneth W. Shahan, Militar y Judge (arraignment) Sean F. Mangan, Milit ary Judge (trial)
Lieutenant Colonel J ames W. Nelson, Acting S taff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Captain Bryan A. Osterhage, JA; Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick, JA; Captain Joshua B. Banister, JA (on brief).

15 February 2018

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SUMMARY DISPOSITION

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FLEMING, Judge:

We affirm this case, ho lding a trial counse l’s presentencing ar gument referring to a punishment greater than the court- martial could adjudge did not amount to plain error when viewed in the c ontext of the argumen t’s overall theme. Even if the argument was plain er ror, appellant failed to estab lish prejudice to a substantial right because, among o ther reasons, the military ju dge sua sponte instructed the panel on appropriate sentence considerations.

A panel composed of o fficer and enlisted m embers sitti ng as a s pecial courtmartial convicted appellant of ma ltreatment and two specificati ons of abusive sexual
contact in violation of Article s 93 and 120, Uni form Code of Mi litary Justice [UCMJ], 10 U.S.C. § 893, 920 (2012). The convenin g authority a pproved the adjudged sentence of a bad-conduct discharg e, confinement for s ix months, and
reduction to the grade of E-1.CANCELLIERI—ARMY 20160525

2 Appellant’s case is before this court for review pursuant to Ar ticle 66, UCMJ. Appellant asserts one assigned error, which merits discussion b ut no relief. Appellant personally raises additional issues pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), which we fi nd meritless.

BACKGROUND

During the government’s presentencing argume nt, trial counsel a sked the panel to adjudge, inter alia , six months of confin ement and went on to explain the basis fo r this suggestion:

Now, this is a round number, but it is not an arbitrary number. There’s two reasons that the government arrived at this figure. The first is an acknowledgement of many of the things that we h ave heard about. Th ere is good service
that has been rende red by [appellant]. He does have some potential, and the government i s not ignoring that or trying
to dismiss that.

Additionally, the government recognizes that in this specturm of offenses t hat fall under Artic le 120, this is not necessarily the most severe . And that’s why when you look at first, if this case had been brought at a general court-martial, based on thes e same charges , the accused would be facing poten tially fifteen years confinement. So that [sic] something that we ’re not even close to here because of the recogniti on of what is going on.

Second, is at this court-martia l right now, a sentence of up to one year is authorized. A nd the government is not asking for that maxi mum sentence; we’re only asking for
that six month sent ence out of recognit ion of those two
factors that I pointed out. B ut I think there is another important justice b ehind that six mont h figure. When you look back to the spe cifications as you, t he panel members, found him, Sergeant [H] suffere d through the behavior and actions of [appellant] for five months. It was a five month ordeal that you saw him talk about the effect it had on him, and you hea rd his mother talk abo ut the effect it had on him. And therefore, the government asks, and the government believes it’s only fair that [appellant] suffer confinement for long er than the period t hat Sergeant [H] has already had to endure.CANCELLIERI—ARMY 20160525

3 Defense counsel did n ot object to this argu ment. When trial co unsel finished argument, the military judge, sua sponte, instructed the panel:

The trial coun sel referenced some maximum punishment amounts. Congress has given the authority to the President, and throug h that author ity, the President does set maximum punishments for various offens es under the code. However, that should not be a guide for you in determining. You are set—and each court -martial has its own unique circumstance. In th is particular c ourt-martial, the law limits you t o a maximum punishment that I will describe to you.

The panel members all agreed the y could follow the military jud ge’s instruction.
Defense counsel did n ot object to the milita ry judge’s correcti ve instruction.

After civilian defense counsel’s presentenci ng argument, the mi litary judge instructed the panel t hat “[t]he maximum pun ishment that may be adjudged in this case is reduction to the grade of E-1; forfeiture of two-thirds pay per month for twelve months; confinement for twelve months; an d a bad-conduct discharge.”

LAW AND DISCUSSION

Appellant requests this court se t aside his sentence and author ize a new sentencing proceeding b ecause trial counsel ’s argument referred to a punishment or quantum of punishment gr eater than the court -martial could adju dge in violation of
Rule for Courts-Marti al (R.C.M.) 1001(g).

Appellant concedes he did not object at trial to the improper a rgument or the
corrective instruction. “Failu re to object to i mproper argumen t before the military judge begins to instruct the mem bers on sentencing shall consti tute waiver of the objection.” R.C.M. 1001(g). Be cause appellant did not object to trial counsel’s sentencing argum ent, we review the propr iety of the argument fo r plain error. United States v. Halpin , 71 M.J. 477, 4 79 (C.A.A.F. 2013) (citing United States v. Marsh, 70 M.J. 101 , 104 (C.A.A.F. 2011)).

Under plain error review, appella nt must prove: 1) there was e rror, 2) such error was clear or obvious, and 3) the error materially prejudi ced a substantial right
of the accused. United States v. Feliciano , 76 M.J. 237, 240 (C.A.A.F. 2017); United States v. Knapp , 73 M.J. 33, 36 (C .A.A.F. 2014); United States v. Maynard

, 66 M.J. 242, 244 (C.A.A .F. 2008). Governmen t appellate counsel did not address whether the government believes there was pl ain error. To the extent this was a concession, we do not accept it.CANCELLIERI—ARMY 20160525

4 While trial counsel’s reference to fifteen years was error, we find no plain or
obvious error because w e focus not “on word s in isola tion, but on the argument as
‘viewed in context.’” United States v. Baer

, 53 M.J. 235, 238 (C .A.A.F. 2000) (quoting United States v. Young , 470 U.S. 1, 16 (1985)). The inappropriate argument was within a context o f the trial counsel referencing pro-appellant sentencing facto rs. The trial counsel n oted appellant’s “good service,” his “potential,” and averre d his misconduct was not the “most sever e.” Because of these pro-appellant factors, the trial counsel argued appellant’s cas e warranted only half
of the confinement a uthorized for a speci al-court martial. Und er this context, we do not find plain or obv ious error.

Even assuming we were t o find plain or obvi ous error, we conclu de appellant
has failed to meet his burden to demonstrat e a material prejudi ce to his substantial rights. To make this determina tion, we have examined the “ Fletcher factors,”
articulated in United States v

. Fletcher , 62 M.J. 175 , 184 (C.A.A.F . 2005), as applied in the context of an alle gedly improper se ntencing argu ment. United States v. Frey , 73 M.J. 245, 249 (C.A.A.F. 2014) (citing Halpin , 71 M.J. at 480). In

Fletcher , our superior court instructed u s that the “best approach [in assessing prejudice] involves a balancing of three fac tors: 1) the sever ity of the misconduct, 2) the measures adopted to cure the misconduct, and 3) the weig ht of the evidence supporting the convicti on.” 62 M.J. at 184; see also Frey , 73 M.J. at 249.

We consider whether “tr ial counsel’s commen ts, taken as a whole , ‘were so damaging that we cannot be confident that [appellant] was sente nced on the basis of
the evidence alone.’” Frey , 73 M.J. at 249 (quoting Halpin , 71 M.J. at 480) (alteration in original). Trial counsel argued ap pellant’s con duct was on the lesssevere end of the spe ctrum of Article 120, UCMJ, offenses. The fact that the panel sentenced appellant t o a bad-conduct dischar ge, confinement for six months, and
reduction to the grade of E-1 af ter finding him guilty of one specification of maltreatment and two specificati ons of abusive sex ual contact d emonstrates the lack of prejudice. See Baer , 53 M.J. at 238 (“In view of the relative lightness of the sentence which appella nt received, we believ e that his substant ial rights were not materially prejudiced by the im perfections in hi s sentencing he aring.”).

As to curative measures, the military judge sua sponte instruct ed the members that the trial counsel’s reference to fifteen years and a gener al-court martial was not the sentencing guide for appellan t’s case. Further, the milita ry judge gave proper sentencing instructions informing the panel that “the maximum p unishment that may be adjudged . . . [was] reduction to the gr ade of E-1, forfeit ure of all pay and allowances, confinement for one year, and a bad-c onduct dischar ge.” See Fletcher

, 62 M.J. at 185. Defense did not object to th e military judge’s instructions or request
additional corrective action or relief.CANCELLIERI—ARMY 20160525

5 The evidence supporting appellant’s sentence was strong and any improper comment was “surrounded by powe rful and proper sentencing argum ent.” Frey , 73 M.J. at 251. As evidence in aggr avation, the tr ial counsel app ropriately argued for the panel to consider the victi m and his mother’s testimony hig hlighting the negative effects of appellant’s crimes on the victi m. Trial counsel’s a ppeal to the panel to confine appellant fo r one month longer tha n he made his victim suffer was a reasonable argum ent. The panel seems to h ave agreed—they sente nced appellant to
the six months of confinement re quested by the go vernment. As in Halpin and Frey

, the “‘weight of the evidence amply supports the sentence impose d by the panel’” and appellant “has failed to demonstrate he was not sentenced on th e basis of evidence
alone.” Id. (quoting Halpin

, 71 M.J. at 480). Appellant faced a sentence to, inter
alia , one year of confinem ent and a bad-co nduct dischar ge. He was sentenced to,

inter alia , only six months confinement an d a bad-conduct discharge.

We hold all the Fletcher factors weigh in favor of the government and appellant’s sentence was based on the evidence alone. See Halpin , 71 M.J. at 480. Accordingly, we find no material pr ejudice to app ellant’s subst antial rights.

CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Senior Judge CAMPANELLA and Judge SALUSSO LIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: