UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ALLYSSA K. SIMMERMACHER

HOSPITAL CORPSMAN THIRD CLASS (E-4), U.S. NAVY

NMCCA 201300129

GENERAL COURT-MARTIAL

Sentence Adjudged: 4 October 2012.

Military Judge: LtCol Charles Hale, USMC.

Convening Authority: Commander, Walter Reed National 

Military Medical Center, Bethesda, MD.

Staff Judge Advocate's Recommendation: LCDR K.J. Ian, JAGC, 

USN.

For Appellant: LT Ryan W. Aikin, JAGC, USN.

For Appellee: LT Jetti L. Gibson, JAGC, USN; Capt Cory 

Carver, USMC.

15 October 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A panel of members with enlisted representation sitting as 

a general court-martial convicted the appellant, contrary to her 

pleas, of making a false official statement and wrongful use of 

cocaine in violation of Articles 107 and 112a, Uniform Code of 

Military Justice, 10 U.S.C. § 907 and 912a. The panel sentenced 

the appellant to reduction to pay grade E-3 and a bad-conduct
2

discharge. The convening authority approved the sentence as 

adjudged. 

This is our second review of this case. During our first 

review, a panel of this court affirmed the findings and the 

sentence. United States v. Simmermacher, 2014 CCA LEXIS 334, 

unpublished op. (N.M.Ct.Crim.App. 29 May 2014). After granting 

a petition for review, the Court of Appeals for the Armed Forces 

(CAAF) affirmed the false official statement conviction, but, 

reversing our decision, dismissed the charge of cocaine use. It 

then remanded the case to this Court for us either to reassess 

the sentence or to set aside the sentence and order a rehearing. 

United States v. Simmermacher, 74 M.J. 196, 202-203 (C.A.A.F. 

2015). 

Under the right circumstances, Courts of Criminal Appeals 

(CCAs) can “modify sentences ‘more expeditiously, more 

intelligently, and more fairly’ than a new court-martial[.]” 

United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013) 

(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). This 

recognizes the “difficulties inherent in sentence rehearings” 

and that ordering a rehearing——as opposed to the CCA reassessing 

the sentence itself——“merely substitutes one group of 

nonparticipants in the original trial for another.” Id.

(citation and internal quotation marks omitted). CCAs thus “act 

with broad discretion when reassessing sentences” and the CAAF 

“will only disturb the [lower court's] reassessment in order to 

prevent obvious miscarriages of justice or abuses of 

discretion.” Id. (internal citations and quotation marks 

omitted). 

Reassessing a sentence is only appropriate if we are able 

to reliably determine——“with confidence,” United States v. 

Buber, 62 M.J. 476, 479 (C.A.A.F. 2006)——that, absent the error,

the sentence would have been at least of a certain magnitude.

United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). If we 

cannot do this, we must order a rehearing. Id. A reassessed 

sentence must not only “be purged of prejudicial error [but]

also must be ‘appropriate’ for the offense involved.” United 

States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). 

We base these determinations on the totality of the 

circumstances of each case, guided by the following 

“illustrative, but not dispositive, points of analysis”: 

(1) Whether there has been a dramatic change in the 

penalty landscape or exposure. 
3

(2) Whether sentencing was by members or a military 

judge alone. We are more likely to be certain of what 

sentence a military judge would have imposed as 

opposed to members. 

(3) Whether the nature of the remaining offenses 

capture the gravamen of criminal conduct included 

within the original offenses and, similarly, whether 

significant or aggravating circumstances addressed at 

the court-martial remain admissible and relevant to 

the remaining offenses. 

(4) Whether the remaining offenses are of the type 

with which appellate judges should have the experience 

and familiarity to reliably determine what sentence 

would have been imposed at trial. 

Winckelmann, 73 M.J. at 15-16. 

In this case, the totality of the circumstances leads us to 

conclude that we can reassess the sentence to affirm only so 

much as provides for reduction to pay grade E-3. The cocaine 

charge having been dismissed, the appellant now stands convicted 

of a single false official statement in March 2011 to the Naval 

Criminal Investigative Service. In the course of being 

interrogated about her urinalysis testing positive for cocaine, 

she provided a written statement that “I have never willingly or 

unwillingly done any illegal substance, including cocaine, 

ever.”1

 Two witnesses at trial contradicted this, testifying 

that they observed her snorting “Adderall pills and codeine 

pills”2 and “Percocet.”3

 

During presentencing, the Government presented no evidence. 

The defense, on the other hand, presented a string of senior 

witnesses——a lieutenant commander, an Army master sergeant, and 

a chief petty officer——all attesting to the appellant’s 

outstanding work performance and good military character. The 

defense concluded with compelling testimony from family members

of the appellant. 

 

1 Appellate Exhibit XXI at 11. 

2 Record at 847. 

3 Id. at 855. 
4

Under all the circumstances presented, we find that we can 

reassess the sentence and that it is appropriate for us to do 

so. First, we can confidently and reliably determine that, 

absent the error, the members would have sentenced the appellant 

to at least reduction to pay grade E-3. Second, a sentencing 

rehearing for a false official statement made over four years 

ago is, in this case, impractical and unnecessary. Third, we 

have sufficient experience and familiarity with suspects who 

falsely deny wrongdoing to law enforcement——an all too common 

phenomenon we have observed——to reliably determine what sentence 

would have been imposed. Finally, we conclude that a sentence 

of reduction in rank is an appropriate punishment for this 

offense and this offender while a bad-conduct discharge is not——

thus satisfying the Sales requirement that the reassessed 

sentence not only be purged of error, but appropriate. Sales, 

22 M.J. at 308. 

Accordingly, we affirm only so much of the sentence as 

provides for reduction to pay grade E-3. 

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court