This opinion is subject to administrative correction before final disposition.

Before KING
, TANG , and LAWRENCE
, Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Michael C

. ANNE Corporal (E

- 4 ), U.S. Marine Corps Appellant

No. 201900 072

Decided: 18 December 2019

. Appeal from the United States Navy

- Mari ne Corps Trial Judiciary Military Judge: Lieutenant Colonel Keaton H. Harrell, USMC. Sentence adjudged 22 August 2018 by a general court

- martial convened at Camp Lejeune , North Carolina, consisting of a military judge sitting alone. Sentence awarded by the military judge: r eduction to E

- 1 , a fine of $4,000 .00, confinement for 28 months , and a dishonorable discharge

. 1
For Appellant: Major Matthew A. Blackwood, USMC

. For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN

.

_________________________

1 The Convening Authority approved the adjudged sentence but suspended confinement in excess of 24 mont hs pursuant to a pretrial agreement.United States v. Anne , NMCCA No. 201 9 00072

2 This opinio n does not serve as binding precedent, but

may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM: A military judge sitting as a ge neral court

- martial convicted A ppellant, consistent with hi s pleas, of three specifications of conspiracy, two specifications of larceny of military property
, two specifications of wrongful sale of military property, attempted wrongful sale of military property, dereliction of duty, and obstruction of justice, in violation of Articles 80, 81, 92, 108, 121
, and 134 , Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881, 892, 908, 921, and 934 (2016).
A ppellant claims that he received a highly disparate sentence compared to that of his co

- conspirator, L ance Corporal (LCpl) (E

- 3) Delnevo. We disagree , find no prejudicial error, and affirm.



### I. B ACKGROUND

While serv ing as a supply Marine for 3d Marine Raider Battalion, and over the course of three years (2016

- 2018)
, A ppellant engaged in a campaign to steal and sell or attempt to steal and sell to a local pawn shop military property valued in the hundreds of thousands of dollars. As part of this campaign, he approached LCpl Delnevo, a junior Marine with whom he worked
,with the idea of selling stolen property, including 25 Solar Portable Alternati ve Communications Energy Systems. Also stolen were Leatherman multi

tools , Gerber S39V knives, Surefire flashlights, scout lights, Hellf ighter lights and helmet lights, and Recon Sleeping Systems. Finally, when the command became suspicious, A ppellant conspired with LCpl Delnevo to destroy evidence of their activities by replac ing the hard drive for the warehouse security camera

. LCpl Delnevo then drove A ppellant to a store at which A ppellant purchased a new hard drive and then replaced the original hard drive with the newly purchased drive

. A ppellant then destroyed the original

. Pleading guilty to ten related specifications, A ppellant faced a total of 70 years and six months confinement. LCpl Delnevo pleaded guilty at a separate general court martial to the conspiracies, larcenies of military property (including larcenies that d id not involve A ppellant) , attempted sale of military prop erty, and dereliction of duty. LCp l Delnevo did not plead guilty to obstruction of justice

or the separate charge of attempting to sell military property. Pleading guilty to nine related specificati ons, LCpl Delnevo faced a total of 7 0 years and six months of confinement. LCpl Delnevo ’s military judge sentenced him to r e-United States v. Anne , NMCCA No. 201 9 00072

3 duction to E

- 1 , confinement for 20 months , and a dishonorable discharge. The convening authority approved the sentence as adjudged

. The same trial counsel represented the government at both courts

- martial and the same c onvening a uthority acted on both sentences. Different military judges presided over and sentenced the two Marines . Finally, while A ppellant ’ s sentencing hearing is part of the record, the record does not contain the evidence in aggravation, extenuation, or mitigation offered at LCpl Delnevo ’ s sentencing proceedings. Additional facts necessary to the resolution of the issue are discussed infra.



### II. D ISCUSSION
The appellant no w contends his sentence is highly disparate to that of LCpl Delnevo and that this C ourt should remedy that disparity by affirming a sentence of no more than 20 months ’ confinement, reduction to paygrade E

1, and a dishonorable discharge. The Government con cedes the cases are

“ closely related, ” but argues they are not “ highly disparate, ” or if they are, that a “ rational basis ” exists for said di sparity. We review sentence appropriatenes s de novo , United States v. Lane
, 64 M.J. 1, 2 (C.A.A.F. 2006), and gene rally without reference or comparison to sentences in other cases. United States v. Ballard , 20 M.J. 282, 283 (C.M.A. 1985). We will enga ge in sentence comparison only “ in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases. ” United States v. Sothen , 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting Ballard , 20 M.J. at 283). When arguing for relief based on sentence disparity, an appellant must demonstrate “ that any cited cases are ‘ closely related ’ to his or her case and that the sentences are ‘ highly disparate. ’ If the appellant meets that burden

. . . then the Government must show that there is a rational basis for the disparity. ” United States v. Lacy , 50 M.J. 286, 288 (C.A.A.F. 1999). “ Closely related ” cases involve “ offenses that are similar in both nature and seriousness or which arise from a common scheme or design. ” United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994) ; see also
, Lacy , 50 M.J. at 288. In assessing whether sentences are highly disparate, adjudged sentencesare used because there are several intervening and independent factors between trial and appeal

— including discretionary grants of clemency and limits from pretrial agreements

— that mi ght properly create the disparity in what are otherwise closely related cases. United States v. Roach , 69 M.J. 17, 21 (C.A.A.F. 2010)

. Moreover, we are “ not limited to a narrow comparison of the relative numerical values of the sentences at issue, ” but may also consider “ the disparity in relation to the potential maximum punishment. ” Lacy , 50United States v. Anne , NMCCA No. 201 9 00072

4 M.J. at 287. Finall y, co

- conspirators are not entitled to similar sentences anddisparity between them does not necessarily render one sentence inappropriate, “ provided each military accused is sentenced as an individual. ” United States v. Durant , 55 M.J. 258, 261 (C.A.A.F. 2001) (citations omitted). This is so because the point of examining disparate sentences is not only to eliminate actual unfairness or injustice, but to ensure the “ appearance of fairness and integrity, without which the public, members of Congress, and se rvice personnel will lose confidence in the military justice system. ” United States v. Kelly , 40 M.J. 558, 570 ( N

- M Ct. Crim. App. 1994). The United States concedes that these cases are closely relate d for purpose of this appeal. We concur and so begin wit h the next prong

— whether the sentences are highly disparate. We begin with the established principle that “ sentence comparison does not require sentence equation, ” Durant, 55 M.J. at 260, as the goal is to “ attain relative uniformity rather than arithmeti cally averaged sentences. ” Id. Here, two supply Marines engaged in largely the same course of misconduct over several months , namely, stealing or attempting to steal from the warehouse in which they were entrusted to work, hundreds of thousands of dollars of government property, selling some of that property to enrich themselves, and then conspiring to obstruct justice. Considering that each Marine faceddecades of confinement, we do not find a difference of eight months of confinement to be highly disparat e. Nor do we perceive such a small delta indicative of unfairness or that it risks such a perception.
Re garding the fine, the record indicates the appellant was paid at least $3000 for his criminal activity. At trial, the G overnment requested a sentence t hat included a fine of $5000. The D efense objected to that amount, requesting instead a “ fair fine. ” 2 While we know he was enriched , 3 the record before us does not indicate the amount LCpl Delnevo was paid beyond approximately $1800.00

. Without this inform ation, we decline to assume A ppellant ’ s fine resulted in a “ highly ” disparate sentence.
Even had A ppellant satisfied his burden, we would find a rational basis for the disparity. First, A ppellant was a non

- commissioned officer engaging in criminal activity with a junior Marine. We have routinely recognized the

2 R. at 45

.

3 See P rosecution E xhibit 1, at 2: “ Lance Corporal Delnevo and I split the $2600 and we each received $1300. ”United States v. Anne , NMCCA No. 201 9 00072

5 military maxim that with greater authority goes greater responsibility and, thus, accountability, especially when the senior encourages or engages in misconduct with subordinates. See e.g.
, U nited S ta tes v. Flowers , 2017 CCA LEXIS 712 ( N

- M Ct. Crim. App. 21 Nov. 2017 ) (unpub. op.) ( considering seniority of appellant as a senior, non

- commissioned officer in determining rational basis for sentence disparity ) ; U nited S tates v. Lambert , 2006 CCA LEXIS 300 at * 14 ( N

- M Ct. Crim. App. 27 Nov. 2006 ) (unpub. op.) ( “ as the senior NCO, [co

- conspirator] was invested with greater responsibility and authority. ” ) So too here. N ot only did A ppellant raise with his junior the idea of selling stolen military property, h e informed that junior Marine that a security camera may have recorded their crimes and subsequently entered into a second conspiracy with that junior Marine to obstruct justice

— a conspiracy that culminated with A ppellant alone buying a new hard drive, rep lacing the old one, and destroying the original hard drive. We concur with the G overnment that such a brazen attempt to obstruct justice increases A ppellant ’ s level of culpability and provides a rational basis for the difference in A ppellant ’ s sentence.



### III. C ONCLUSION
Having carefully considered A ppellant ’ s assigned error, the record of trial, and the parties ’ submissions, we conclude the findings and sentence are correct in law and fact and that no error materially prejudiced A ppellant ’ s substantial rights. A rts. 59 , 66, UCMJ. Although not raised by Appellant, we note that the court

- martial order(CMO) does not accurately reflect the disposition of all charges and specifications to which Appellant entered pleas of not guilty. The CMO indicates that Charge I, Specification 2, Charge II, Specification 2, Charge III, and Specification 3 were dismissed without prejudice. However, the CMO fails to indicate that the withdrawn charges and specifications were also “ dismissed by the c onvening authority without prejudic e to ripen into prejudice upon completion of appellate review in which the findings and sentence have been upheld. ” 4 The appellant is entitled to have court

- martial records that correctly reflect the content of his proceeding. United States v. Crumpley , 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998). Accordingly, the supplemental CMO shall properly reflect the disposition of Charge I, Specification 2, Charge II, Specification 2, Charge III, and Specification 3, as reflected above

.

4 Appellate Exhibit I at 6, Record at 108.United States v. Anne , NMCCA No. 201 9 00072

6 Accordingly, the findings and sentence as approved by the Convening Authority are AFFIRMED

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court