## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class MICHAEL A. RUSSELL United States Army, Appellant

ARMY 20150397

Headquarters, Fort Campbell

Steven E. Walbur n, Military Judge Colonel Susan K. Arnold, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Captain Heather L. Tregle, JA; Captain Katherine L. De Paul, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Lieutenant Colonel Kirste n M. Dowdy, JA (on brief); Major Anne C. Hsieh, JA.

18 November 2016

---------------------------------- SUMMARY DISPOSITION

----------------------------------

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of one spec ification of indecen t language and six specifications related to the possession of child pornograp hy, distribution of child pornography, receipt of child pornography, so liciting the producti on and distribution of child pornography, in violation of Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 934 (2012 & Su pp. I 2014) [herei nafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for fifteen years, forfeiture of all pay and allowances , and reduction to the grade of E-1. Pursuant to a pretrial ag reement, the convening auth ority approved the adjudged sentence except that portion extending to confinement in exce ss of ten years.

This case is before the court for review pursuant to Article 66, UCMJ. Appellant assigns tw o errors. One error warrants discussion, but no relief.RUSSELL—ARMY 20150397

2 BACKGROUND

Appellant, among other thin gs, pleaded guilty to solic iting his fourteen year old niece, on multiple occasions, to take di gital pictures of he r genitalia and nude body and send them to him. She compli ed, taking and send ing the pictures. Specification 5 of Charge II involved the soli citation of distri bution of child pornography by having the pictures sent to him. Specif ication 6 was th e solicitation to create child pornography by taking the images of he r genitalia a nd nude body.

The dates and locations of the two specifications were otherwise identical.

In appellant’s negotiated pr etrial agreement, he agreed to waive “all waivable motions.” Despite that express language, appellant moved at trial for merger for sentencing of two sets of specifications, Specifications 1 and 4 of Charge 1 and Specifications 5 and 6 of Ch arge 1. The government did not object to the requested merger as contrary to the plea agreement, and joined the motion , which the military judge granted. The appellant now asks this cour t to find the two sp ecifications that he requested be merged fo r sentencing, Specifications 5 and 6, be found an unreasonable multiplication of charges for findings.

UNREASONABLE MULTIPLICATION OF CHARGES

Appellant asserts that the military judge abused his discretion in not merging

the solicitation offenses fo r findings. We disagree. A ppellants’ plea of guilty, especially when part of a ne gotiated pretrial agreement, waived the issue of whether any of the specifications were unreasonably multiplied. United States. v.
Schweitzer , 68 M.J. 133, 136 (C.A.A.F. 2009). Unless th e offenses are “facially duplicative” a guilty plea wa ives any claim that the offenses are unreasonably multiplied. Id. (citing United States v. Pauling , 60 M.J. 91, 94 (C.A .A.F. 2004). As we have previously stated in United States v. Thomas , “the issue is not whether the military judge erred” but whether on appeal “we s hould exercise our awesome, plenary de novo power of re view to notice wa ived and forfeited error.” ARMY 20150205, 2016 CCA LEXIS 551 (Army Ct. Crim. App. 9 Sept. 2016) (citing United

States v. Nerad , 69 M.J. 138, 141-4 2, 144, 146-47 (C.A.A.F. 2010)) (internal quotation marks omitted). We decline to do so.

Appellant agreed to plead guilty to all the alleged specifications in his plea agreement waiving “all waivab le motions.” Re markably, the government did not object to the violation of th is term at appellant’s court-martial by withdrawing from the agreement. Instead, they joined th e motion to reduce appellant’s punitive exposure from seventy years to fifty-five years. Nothing in this record persuades us

that we should ex ercise our discretionary authority to disturb that which appellant specifically negotiated. See United States v. Chin , 75 M.J. 220 (C.A .A.F. 2016).RUSSELL—ARMY 20150397

3 CONCLUSION

The finding of guilty and sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: