UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant NATHAN P. CANCELLIERI 

United States Army, Appellant 

ARMY 20160525 

Headquarters, 7th Infantry Division 

Kenneth W. Shahan, Military Judge (arraignment) 

Sean F. Mangan, Military Judge (trial) 

Lieutenant Colonel James W. Nelson, Acting Staff Judge Advocate 

For Appellant: Lieutenant Colonel 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, holding a trial counsel’s presentencing argument 

referring to a punishment greater than the court-martial could adjudge did not 

amount to plain error when viewed in the context of the argument’s overall theme. 

Even if the argument was plain error, appellant failed to establish prejudice to a 

substantial right because, among other reasons, the military judge sua sponte 

instructed the panel on appropriate sentence considerations. 

A panel composed of officer and enlisted members sitting as a special courtmartial convicted appellant of maltreatment and two specifications of abusive sexual 

contact in violation of Articles 93 and 120, Uniform Code of Military Justice 

[UCMJ], 10 U.S.C. § 893, 920 (2012). The convening authority approved the 

adjudged sentence of a bad-conduct discharge, confinement for six months, and 

reduction to the grade of E-1. 
CANCELLIERI—ARMY 20160525 

2 

Appellant’s case is before this court for review pursuant to Article 66, UCMJ. 

Appellant asserts one assigned error, which merits discussion but no relief. 

Appellant personally raises additional issues pursuant to United States v. Grostefon,

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

BACKGROUND 

During the government’s presentencing argument, trial counsel asked the panel 

to adjudge, inter alia, six months of confinement and went on to explain the basis for 

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 have heard about. There is good service 

that has been rendered by [appellant]. He does have some 

potential, and the government is not ignoring that or trying 

to dismiss that. 

Additionally, the government recognizes that in this 

specturm of offenses that fall under Article 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 these same charges, the accused 

would be facing potentially fifteen years confinement. So 

that [sic] something that we’re not even close to here 

because of the recognition of what is going on. 

Second, is at this court-martial right now, a sentence of up 

to one year is authorized. And the government is not 

asking for that maximum sentence; we’re only asking for 

that six month sentence out of recognition of those two 

factors that I pointed out. But I think there is another 

important justice behind that six month figure. When you 

look back to the specifications as you, the panel members, 

found him, Sergeant [H] suffered 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 heard his mother talk about the effect it had 

on him. And therefore, the government asks, and the 

government believes it’s only fair that [appellant] suffer 

confinement for longer than the period that Sergeant [H] 

has already had to endure. 
CANCELLIERI—ARMY 20160525 

3 

Defense counsel did not object to this argument. When trial counsel finished 

argument, the military judge, sua sponte, instructed the panel:

The trial counsel referenced some maximum punishment 

amounts. Congress has given the authority to the 

President, and through that authority, the President does 

set maximum punishments for various offenses 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 this particular court-martial, 

the law limits you to a maximum punishment that I will 

describe to you. 

The panel members all agreed they could follow the military judge’s instruction. 

Defense counsel did not object to the military judge’s corrective instruction. 

After civilian defense counsel’s presentencing argument, the military judge 

instructed the panel that “[t]he maximum punishment 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; and a bad-conduct discharge.” 

LAW AND DISCUSSION 

Appellant requests this court set aside his sentence and authorize a new 

sentencing proceeding because trial counsel’s argument referred to a punishment or 

quantum of punishment greater than the court-martial could adjudge in violation of 

Rule for Courts-Martial (R.C.M.) 1001(g). 

Appellant concedes he did not object at trial to the improper argument or the 

corrective instruction. “Failure to object to improper argument before the military 

judge begins to instruct the members on sentencing shall constitute waiver of the 

objection.” R.C.M. 1001(g). Because appellant did not object to trial counsel’s 

sentencing argument, we review the propriety of the argument for plain error. 

United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (citing United States v. 

Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011)). 

Under plain error review, appellant must prove: 1) there was error, 2) such 

error was clear or obvious, and 3) the error materially prejudiced 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). Government appellate counsel did not address 

whether the government believes there was plain 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 we focus not “on words in isolation, 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 of the trial counsel referencing pro-appellant 

sentencing factors. The trial counsel noted appellant’s “good service,” his 

“potential,” and averred his misconduct was not the “most severe.” Because of these 

pro-appellant factors, the trial counsel argued appellant’s case warranted only half 

of the confinement authorized for a special-court martial. Under this context, we do 

not find plain or obvious error. 

Even assuming we were to find plain or obvious error, we conclude appellant 

has failed to meet his burden to demonstrate a material prejudice to his substantial 

rights. To make this determination, 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 allegedly improper sentencing argument. 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 us that the “best approach [in assessing 

prejudice] involves a balancing of three factors: 1) the severity of the misconduct, 

2) the measures adopted to cure the misconduct, and 3) the weight of the evidence 

supporting the conviction.” 62 M.J. at 184; see also Frey, 73 M.J. at 249. 

We consider whether “trial counsel’s comments, taken as a whole, ‘were so 

damaging that we cannot be confident that [appellant] was sentenced 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 appellant’s conduct was on the lesssevere end of the spectrum of Article 120, UCMJ, offenses. The fact that the panel 

sentenced appellant to a bad-conduct discharge, confinement for six months, and 

reduction to the grade of E-1 after finding him guilty of one specification of 

maltreatment and two specifications of abusive sexual contact demonstrates the lack 

of prejudice. See Baer, 53 M.J. at 238 (“In view of the relative lightness of the 

sentence which appellant received, we believe that his substantial rights were not 

materially prejudiced by the imperfections in his sentencing hearing.”). 

As to curative measures, the military judge sua sponte instructed the members 

that the trial counsel’s reference to fifteen years and a general-court martial was not 

the sentencing guide for appellant’s case. Further, the military judge gave proper 

sentencing instructions informing the panel that “the maximum punishment that may 

be adjudged . . . [was] reduction to the grade of E-1, forfeiture of all pay and 

allowances, confinement for one year, and a bad-conduct discharge.” See Fletcher, 

62 M.J. at 185. Defense did not object to the 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 powerful and proper sentencing argument.” Frey, 73 

M.J. at 251. As evidence in aggravation, the trial counsel appropriately argued for 

the panel to consider the victim and his mother’s testimony highlighting the negative 

effects of appellant’s crimes on the victim. Trial counsel’s appeal to the panel to 

confine appellant for one month longer than he made his victim suffer was a 

reasonable argument. The panel seems to have agreed—they sentenced appellant to 

the six months of confinement requested by the government. As in Halpin and Frey, 

the “‘weight of the evidence amply supports the sentence imposed by the panel’” and 

appellant “has failed to demonstrate he was not sentenced on the basis of evidence 

alone.” Id. (quoting Halpin, 71 M.J. at 480). Appellant faced a sentence to, inter 

alia, one year of confinement and a bad-conduct discharge. He was sentenced to, 

inter alia, only six months confinement and 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 prejudice to appellant’s substantial rights. 

CONCLUSION 

The findings of guilty and the sentence are AFFIRMED. 

Senior Judge CAMPANELLA and Judge SALUSSOLIA concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: