UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

HAIGHT, PENLAND, and ALMANZA1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant GILBERTO A. RODRIGUEZ 

United States Army, Appellant 

ARMY 20140380 

Headquarters, United States Army South 

Patricia Lewis, Military Judge 

Lieutenant Colonel Daniel P. Saumur, Staff Judge Advocate 

For Appellant: Major Andres Vazquez, Jr., JA; Lieutenant Colonel Charles C. Choi, 

JA. 

For Appellee: Major A.G. Courie III, JA.

28 September 2015 

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SUMMARY DISPOSITION 

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PENLAND, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

consistent with his pleas, of sexual assault of a child, sexual abuse of a child, assault 

consummated by a battery, and solicitation, in violation of Articles 120b, 128, and 

134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 928, and 934 

(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a 

dishonorable discharge, eight years of confinement, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the 

convening authority approved only so much of the sentence as provided for a 

dishonorable discharge, five years of confinement, forfeiture of all pay and 

allowances, and reduction to the grade of E-1.2

 

1

 Judge ALMANZA took final action in this case while on active duty. 

2

 The action and promulgating order do not reflect that appellant was awarded ninety 

days of confinement credit. Accordingly, to the extent appellant has not already 

received this credit, appellant shall be credited with ninety days of confinement 

credit.
RODRIGUEZ – ARMY 20140380 

2

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

Appellant submitted a merits pleading, personally raising several matters pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). They lack merit. However, 

we have identified two issues warranting brief discussion and relief. 

Solicitation – Providence Inquiry 

Appellant entered a plea of guilty to Specification 3 of Additional Charge VI, 

in which he was charged with soliciting a civilian police officer (DC) to wrongfully 

receive stolen military property. The military judge explained the elements of the 

offense, including that “at the time [DC] received the property he knew that it was 

stolen . . . .” This advice was correct, because for a solicitation conviction to stand, 

the “solicitor’s request [must] be such that the solicitee know that the act requested 

of him is part of a criminal venture.” United States v. Higgins, 40 M.J. 67, 68 

(C.M.A. 1994) (citing United States v. Oakley, 7 U.S.C.M.A. 733, 735, 23 C.M.R. 

197, 199 (1957)). 

Regarding this specification, appellant explained to the military judge that he 

responded to an advertisement for a motorcycle by offering to trade night vision 

goggles. Appellant told the military judge he did not actually own any such goggles; 

instead, he intended to unlawfully procure them from an Army source if DC was 

willing to exchange. The military judge did not ask and appellant did not indicate 

whether he shared his criminal plan with DC, nor did appellant otherwise tell the 

military judge that DC knew appellant sought his participation in a criminal scheme. 

We acknowledge that the evidence to which appellant stipulated included his 

confirmation to DC that the goggles were “military grade” and his message, “let me 

know wat u need i have alot of army stuff.” We also recognize the probative nature 

of these communications. However, this evidence does not supplant the 

requirement—unmet here—that appellant’s providence inquiry include his admission 

to every element of the crime. United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 

2006). 

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty 

plea will only be set aside if we find a substantial basis in law or fact to question the 

plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The 

court applies this “substantial basis” test by determining whether the record raises a 

substantial question about the factual basis of appellant’s guilty plea or the law 

underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial 

910(e). Considering the deficiencies in the providence inquiry, a substantial basis 

exists here. 
RODRIGUEZ – ARMY 20140380 

3

Sexual Abuse of a Child – Providence Inquiry 

Appellant entered a plea of guilty by exceptions and substitutions to 

Specification 1 of Additional Charge III, in which he was charged with sexually 

abusing a child by sending her lewd text messages. Among the many lewd messages 

enumerated in the specification, appellant was charged with asking “‘have u ever 

done it in the butt,’ or words to that effect . . . .” The military judge found appellant 

guilty of communicating all of the charged phrases. However, the military judge did 

not ask about and appellant did not address the specific phrase mentioned above 

during the providence inquiry. Therefore, a substantial basis in fact exists to 

question the providency of appellant’s plea of guilty to this repugnant phrase. 

CONCLUSION 

The finding of guilty of Specification 3 of Additional Charge VI is set aside 

and that specification is DISMISSED. 

We affirm so much of the finding of guilty of Specification 1 of Additional 

Charge III as provides: 

In that Sergeant Gilberto Rodriguez, U.S. Army, did, in 

Texas, between on or about 1 October 2012 and 1 December 

2012, commit a lewd act upon Ms. E.E., a child who had 

not attained the age of 16 years, to wit: asked her by text 

message “have u ever got eaten out before by a guy” or 

words to that effect; “U want to fuck” or words to that 

effect, and “U want me to eat that pussy” or words to that 

effect, “I want to eat ur pussy so bad n then lay u on the bed 

n put my dick in ur mouth then I’m gonna fuck that pussy 

so good then I’m gonna bend u over n put it in ur butt do us 

want to try” or words to that effect, “U won’t mind if I cum 

in ur mouth,” or words to that effect, “I want u to ride my 

dick wat position u like,” or words to that effect, “Have u 

ever got eaten out before by a guy,” or words to that effect, 

“so did u like me being inside of u,” or words to that effect, 

“Did u swallow or did u spit it out,” or words to that effect. 

The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013), we are confident that absent these errors appellant would have 

received a sentence at least as severe as the approved sentence of a dishonorable 
RODRIGUEZ – ARMY 20140380 

4

discharge, five years of confinement, forfeiture of all pay and allowances, and 

reduction to the grade of E-1. The approved sentence is AFFIRMED; appellant shall 

be credited with ninety days of confinement. All rights, privileges, and property of 

which appellant has been deprived by virtue of that portion of the findings set aside 

by our decision are ordered restored. 

Senior Judge HAIGHT and Judge ALMANZA concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: