This opinion is subject to administrative correction before final disposition.

Before 

MONAHAN, STEPHENS, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Charles W. BUTTIGIEG

Aviation Structural Mechanic First Class (E-6), U.S. Navy

Appellant

No. 202000272

Decided: 18 January 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: 

Ann K. Minami (arraignment)

Kimberly J. Kelly (motions and trial)

Sentence adjudged 27 August 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 48 months, and a bad-conduct discharge.

For Appellant:

Lieutenant Commander Daniel O. Moore, JAGC, USN

For Appellee: 

Lieutenant Catherine M. Crochetiere, JAGC, USN

Lieutenant Gregory A. Rustico, JAGC, USN
United States v. Buttigieg, NMCCA No. 202000272

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 violating Article 80, Uniform Code of Military Justice [UCMJ],1 for attempted indecent recording of a 

child, and of violating Article 134, UCMJ,2 for distributing child pornography 

(one specification) and possessing child pornography (two specifications).

Appellant asserts one assignment of error [AOE]. A Naval Consolidated 

Brig Miramar, California [NAVCONBRIG Miramar] policy requires a therapist to determine that parental communication with a non-victim minor will 

not harm a victim before allowing such communication. Appellant asserts this

violated his heightened liberty interest in parenting his non-victim, minor son,

thereby unlawfully increasing his sentence.3

We find no prejudicial error and affirm.

I. BACKGROUND

Appellant pleaded guilty to attempting to indecently record his daughter (a 

stepdaughter whom he adopted), who at the time of his misconduct was under 

age 12. He also pleaded guilty to child pornography offenses unrelated to his

two children. Eight days after Appellant began serving his sentence of confinement at NAVCONBRIG Miramar, his trial defense counsel submitted posttrial matters to the convening authority. The record of trial, to include the matters Appellant submitted to the convening authority, makes no mention of 

NAVCONBRIG Miramar’s policy regarding contact between minors and prisoners who have been convicted of offenses that have a sexual component involving a minor under the age of 18.

 

1 10 U.S.C. § 880.

2 10 U.S.C. § 934.

3 The Assignment of Error was raised pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982).
United States v. Buttigieg, NMCCA No. 202000272

Opinion of the Court

3

In July 2021, Appellant submitted a motion to this Court to attach his 

sworn declaration with enclosures regarding the conditions of his confinement 

at NAVCONBRIG Miramar.4 Among other things, Appellant’s declaration asserted that a NAVCONBRIG Miramar policy prevented him from having any 

contact with his son who was under age 18 and not a victim or witness of any 

of the offenses for which he was convicted. Specifically, Appellant asserted that 

Commanding Officer, NAVCONBRIG Miramar, denied his request for an exception to the facility’s policy because he did not have documentation that his 

ex-wife supported him having contact with his son, and because he did not have 

a letter in support of his request from a therapist who was familiar with his 

case. Appellant also asserted in his declaration that prior to his transfer from 

NAVCONBRIG Miramar, he began drafting but did not submit an Article 138, 

UCMJ, Complaint of Wrong against the commanding officer concerning the

facility’s policy that prevented him from having contact with his son.

Subsequently, the Government submitted a written response to Appellant’s 

motion to attach, and requested that we deny his motion on the basis of the 

Court of Appeals for the Armed Forces’ [CAAF’s] holdings in United States v. 

Jessie5 and United States v. Willman.6 We agreed with the Government’s argument and denied Appellant’s motion.

More recently, Appellant requested a 30-day enlargement of time to file a 

Reply to the Government’s Answer to his AOE brief. Specifically, Appellant’s 

counsel said he needed this time so that he could obtain the policy of Naval 

Consolidated Brig Charleston, South Carolina [NAVCONBRIG Charleston]

with regard to those convicted of child sexual crimes communicating with minors. He also filed a motion to attach Prisoner Requests he submitted while 

confined at NAVCONBRIG Charleston to have contact with his son. Because 

we would also be required to deny any such motion to attach documents related 

to NAVCONBRIG Charleston’s policy or Appellant’s requests to have contact 

with his son while confined there, pursuant to CAAF’s holdings in Jessie and 

Willman, we denied both Appellant’s motion for an enlargement and his motion to attach.7

 

4 Appellant avers that he was transferred to Naval Consolidated Brig Charleston, 

South Carolina, [NAVCONBRIG Charleston] in June 2021.

5 79 M.J. 437, 442 (C.A.A.F. 2020).

6 81 M.J. 355, 359–61 (C.A.A.F. 2021).

7 See Jessie, 79 M.J. at 442; Willman, 81 M.J. at 359–61.
United States v. Buttigieg, NMCCA No. 202000272

Opinion of the Court

4

Finally, in his Reply to the Government’s Answer, Appellant highlights 

that the post-trial matters letter submitted on his behalf by trial defense counsel to the convening authority requested that he be permitted to serve his confinement at NAVCONBRIG Charleston. In the letter, Trial Defense Counsel 

asserted that granting this request would allow Appellant to be located closer 

geographically to his son, who lived on the East Coast, and would therefore, 

“increase his ability to see [his son] in person, maintain that connection, and 

be an active parent in [his son’s] life.”8 Thus, Appellant argues that the issue 

of his desire to communicate with his son is raised by materials in the record, 

but not resolved by the record. However, the narrower issue that we are asked 

to resolve in this appeal is whether the NAVCONBRIG Miramar’s policy unlawfully increased Appellant’s sentence by infringing on his rights as a parent. 

Because the record is silent with regard to the policies of both NAVCONBRIG 

Miramar and NAVCONBRIG Charleston vis-à-vis prisoners convicted of child 

sex crimes communicating with minors, and because nothing in the record 

fairly raises the issue of those policies, we find that under our superior court’s 

precedents, we have no authority to consider materials offered by Appellant to 

this Court concerning those policies on appeal.9

II. DISCUSSION

We review sentence appropriateness de novo.10 We must determine the appropriateness of a court-martial sentence in light of the underlying facts adduced at trial, to include all extenuating and mitigating circumstances.11 We 

may not affirm any portion of a sentence that we find excessive.12 Generally, 

sentence appropriateness should be judged by “individualized consideration”

of the particular accused on the basis of the “nature and seriousness of the 

offense and the character of the offender.”13

Recently in United States v. Guinn, CAAF held that, because a service court 

of criminal appeals [CCA] has a duty to review the legality of a sentence, and 

 

8 Appellant’s Post-Trial Matters Ltr at 2 (Sept. 4, 2020).

9 See Jessie, 79 M.J. at 442; Willman, 81 M.J. at 359–61.

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

11 United States v. Guinn, 81 M.J. 195, 199 (C.A.A.F. 2021).

12 Jessie, 79 M.J. at 440.

13 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (internal quotation and 

citation omitted).
United States v. Buttigieg, NMCCA No. 202000272

Opinion of the Court

5

because CAAF has held that a prison policy may affect an appellant’s sentence, 

a CCA cannot ignore an appellant’s claims that a prison policy rendered a 

court-martial sentence incorrect in law.14 However, an appellant who wishes a 

CCA to review prison conditions must establish the following:

(1) a record demonstrating exhaustion of administrative remedies (i.e., exhaustion of the prisoner grievance system and a petition for relief under Article 138, UCMJ, 10 U.S.C. § 938 (2012), 

except in unusual or egregious circumstances that would justify 

the failure to exhaust); (2) a clear record demonstrating the jurisdictional basis for the CCA’s action; and (3) a clear record 

demonstrating the legal deficiency in the administration of the 

prison.15

Recently, in Willman, CAAF also rearticulated the limits it specified in Jessie regarding what a CCA can consider when reviewing a sentence under Article 66(c), UCMJ. Specifically, a CCA may consider any materials contained in 

the “entire record,” and may also supplement the record to decide any issues 

that are raised, but not fully resolved in the record.16 However, the Willman

Court reiterated CAAF’s holding in Jessie that “the practice of considering material outside the record should not be expanded beyond the context of Article 

55, UCMJ, and the Eight Amendment,”17 which both address the issue of cruel 

and unusual punishment. Applying this rule to the appellant in Willman, 

CAAF held that because he did not raise his complaints about his confinement 

conditions until his appeal to the CCA, the appellant’s declaration was outside

the record, and, thus, the CCA had no authority to review it for the purpose of 

assessing the appellant’s sentence.18

So too here. We acknowledge our duty to review Appellant’s claim, which 

arises under the Due Process Clause of the Fifth Amendment. This claim asserts that NAVCONBRIG Miramar’s policy, which prohibited Appellant’s contact with his non-victim, minor son, unlawfully increased his sentence by infringing on his rights as a parent.19 However, CAAF’s holdings in Jessie, as 

 

14 Guinn, 81 M.J. at 202.

15 Id. at 203 (cleaned up).

16 Willman, 81 M.J. at 358.

17 Id. at 358–59 (quoting Jessie, 79 M.J. at 445).

18 Id. at 359.

19 See Guinn, 81 M.J. at 202.
United States v. Buttigieg, NMCCA No. 202000272

Opinion of the Court

6

clarified in Willman, require us to treat Appellant’s declaration and its enclosures as outside the record. Therefore, without any supporting evidence that 

we can consider, Appellant’s claim fails. Moreover, assuming arguendo we 

could consider Appellant’s declaration and its enclosures, his claim would still 

fail because he did not exhaust all administrative remedies before petitioning 

this Court for relief.20 Specifically, Appellant avers that he drafted, but ultimately did not submit, an Article 138, UCMJ, complaint against the commanding officer regarding the policy at issue. Although Appellant offers a number of 

circumstances he experienced at NAVCONBRIG Miramar to explain why he 

did not submit such a complaint, we do not find any or all of those circumstances taken together sufficiently “unusual or egregious” to “justify the failure 

to exhaust” his administrative remedies.21

Ultimately, we determine Appellant’s sentence to be appropriate.

III. CONCLUSION

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.22

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

20 See id. at 203.

21 Id.

22 Articles 59 & 66, UCMJ.