BURNETT – ARMY 20070733

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

ZOLPER, COOK, and BAIME

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Chief Warrant Officer Two ANTONIO BURNETT**

**United States Army, Appellant**

ARMY 20070733

21st Theater Sustainment Command

James L. Pohl, Edward J. O’Brien, and Reynold P. Masterson Military Judges 

Lieutenant Colonel Corey L. Bradley, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain Nathan J. Bankson, JA (on brief).

For Appellee:  Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Jaired D. Stallard, JA (on brief).

28 August 2008

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SUMMARY DISPOSITION

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Per Curiam: 

  This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ].  We agree with both parties that the holding in *United States v. Lopez de Victoria* applies to Specification 2 of Charge II (a violation of Article 134, UCMJ, indecent acts with child).  66 M.J. 67, 74 (C.A.A.F. 2008) (“[D]eclining to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.”).  We disagree with appellant that a sentence rehearing is required. 

In light of our decision to set aside and dismiss Specification 2 of Charge II and Charge II, we must now reassess appellant’s sentence.  “[I]f the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, [then] a sentence of that severity or less will be free of the prejudicial effects of error . . . .”  *United States v. Moffeit*, 63 M.J. 40, 41 (C.A.A.F. 2006) (quotation marks and citation omitted); *see also United States v. Sales*, 22 M.J. 305, 307 (C.M.A. 1986).  In curing errors through reassessment, we must assure that the sentence is “equal to or no greater than a sentence that would have been imposed if there had been no error.”  *Id*. (citing *Sales*, 22 M.J. at 308); *see also**United States v. Buber*, 62 M.J. 476, 477 (C.A.A.F. 2006).  If we can “reliably determine what sentence would have been imposed at the trial level if the error had not occurred,” we need not order a rehearing on the sentence.  *Sales*, 22 M.J. at 307.

Under the circumstances of this case, we are confident a rehearing is not necessary.  Significantly, we note there was no “relative change in sentencing landscape.”  *Moffeit*, 63 M.J. at 43 (Baker, J., concurring); *see also**Buber*, 62 M.J. 476.  The maximum possible punishment has not changed and appellant’s remaining offense (rape of a minor) and the aggravating circumstances related to that offense remain largely unaffected.  Moreover, the military judge sentenced appellant to a dismissal, confinement for twenty-five years, and forfeiture of all pay and allowances—a sentence well below the authorized maximum punishment of life without the possibility of parole.  Finally, we note appellant’s pretrial agreement limited his sentence to confinement to fourteen years.  We are, therefore, confident the military judge would have imposed and the convening authority would have approved a sentence of the same magnitude had appellant not been convicted of indecent acts with a child.

**DECISION**

Considering the nature of the remaining finding of guilty, the sentence adjudged at trial, and the benefit appellant received from his pretrial agreement, we are satisfied appellant was not prejudiced as to the sentence, and “we perceive no reasonable possibility of benefit to [appellant] by remand of the record . . . for reassessment of the sentence.”  *United States v. Sims*, 57 M.J. 419, 422 (C.A.A.F. 2002) (citation omitted).  

The findings of guilty of Specification 2 of Charge II and of Charge II are set aside and dismissed.  The remaining finding of guilty is affirmed.  Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of *Moffeit*, 63 M.J. at 40, 42-44 and *Sales*, 22 M.J. at 305, to include those principles identified by Judge Baker in his concurring opinion, the court affirms the sentence as approved by the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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