## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________ No. ACM S32537 (f rev)

_______ _______ __________

UNITED STATES Appellee

v.

Esther L. LEPORE
Airman First Class (E

- 3 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary
Upon Further Review

Decided 16 September 2021

_______ _______ __________ Military Judge: Jennifer E. Powell

. Approved sentence: Bad

- conduct di scharge, confinement for 30 days, reduction to E

- 1, and a reprimand . Sentence adjudged 27 March 2018 by SpCM convened at Cannon Air Force Base, New Mexico

. For Appellant: Mark C. Bruegger, Esquire

. For Appellee: Captain Cortland T. Bobczynsk i , USAF; Mary Ellen Payne , Esquire

. Before THE COURT EN BANC

. Chief Judge J OHNSON delivered the opinion of the court, in which Senior Judge L EWIS

, Senior Judge P OSCH , Senior Judge KEY, Judge RICHARDSON, Judge CADOTTE, Judge ANNEXSTAD, Judge MEGINLEY, Judge GOODWIN, and Judge OWEN joined

.

_______ _______ __________

PUBLISHED OPINION OF THE COURT

_______ _______ __________ JOHNSON, Chief Judge:United States v. Lepore , No. ACM S32537 (f rev ) (en banc)

2 Appellant’s case is before this court for the second time. A special court

martial composed of a military judge alone convicted Appellant, in accordance with her pleas pursuant to a pretrial agreement (PTA), of one specification of wrongf ul use of 3,4

- methylenedioxymethamphetamine (MDMA) on divers occasions, one spe cification of wrongful use of marijuana on divers occasions, one specification of wrongful use of cocaine , and one specification of wrongful distribution of mari juana , all in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 9 12a. 1 The military judge sentenced Appellant to a bad

- conduct discharge, con finement for 30 days, reduction to the

gra de of E

- 1, and a reprimand. Con sistent with the terms of the PTA, the convening authority approved the sentence as adjudged.
Appellant ini tially raised two issues on appeal to this court: (1) whether the staff judge advocate (SJA) incorrectly advised the conven ing authority and trial counsel regarding the potential applicability of Rule for Courts

- Martial (R.C.M.) 1107(d)(1)(C)(i) a s it rela ted to Appellant’s sub stantial assistance in the investigation of other Airmen

, and (2) whether the addendum to the SJA’s recommendation to the convening authority contained new matters adverse to Appellant which required notifi cation and an opportunity to re spond pursuant to R.C.M. 1107(b)(3)(iii). Upon initial review, a three

- judge panel of this court agreed with Appellant with respect to the first raised issue, set aside the action of the convening authority, and returned the record of trial for remand t o the convening authority for new post

- trial processing. United States v. Lepore , No. ACM S32537, 2020 CCA LEXIS 21, at *13 (A.F. Ct. Crim. App. 24 Jan. 2020) (unpub. op.). 2

, 3
Upon remand, new post

- trial processing was accomplished in accordance
with th e panel ’s decision, including a new SJA recommendation. T he successor to the convening authority approved the adjudged sentence, and on 29 April2020 the record was redocketed with this court for completion of review pursuant to Article 66, UCMJ, 10 U.S.C. § 866 . On 27 August 2020, Appellant submitted a new assignment of error: whether the court

- martial order erroneously indicates her conviction triggered the firearms prohibition under 18 U.S.C.

1 A ll r eferences in this opin ion to the U CMJ and Rules for Courts

- Martial (R.C.M.) are to the Manual for Courts

- Martial, United States (2016 ed.)

.

2 In light of the disposition of the first issue, the court did not reach the second raised issue.

3 On 11 February 2020, the Government moved for this court to reconsider its 24 January 2020 decision. The prior panel issued an order granting the Government’s motion for reconsideration, indicating that it “reconsidered its original opinion,” and concluded “its previous decision remains unchanged.” See United States v. Lepore , No. ACM S32537, 2020 CCA LEXIS 54 (A.F. Ct. Crim. App. 25 Feb. 2020) (order).United States v. Lepore , No. ACM S32537 (f rev ) (en banc)

3 § 922(g) and requires correction. We conclude the requested corr ection relates to a collateral matter and is beyond the scope of our authority under Article 66, UCMJ , and we therefore deny the requested relief.

I. B ACKGROUND
After the convening authority approved the sentence on 8 April 2020, the convening authority’s SJA signed “Special Court

- Martial Order No. 1” (CMO), also dated 8 April 2020, which reported the findings, sentence, and convening authority’s action. The CMO reflected that Appellant had pleaded guilty and been convicted of wrongfully using MDMA and marijua na on divers occasions, wrongfully using cocaine, and wrongfully distributing marijuana between April and August 2017. 4 The CMO further indicated Appellant was sentencedon 27 March 2018. The first page of the CMO included the following annotation: “Firear ms Prohibition. 18 U.S.C. § 922(g).” 5

II. D ISCUSSION

A. Law
We review questions of jurisdiction de novo. United States v. Hale , 78 M.J. 268, 270 (C.A.A.F. 2019) (citing EV v. United States , 75 M.J. 331, 333 (C.A.A.F. 2016)). “ The burden to establish jurisdiction rests wi th the party invoking the court’ s jurisdiction. ” United States v. LaBella , 75 M.J. 52, 53 (C.A.A.F. 2015) (citing Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)).

“ The scope and meaning of Article 66(c), UCMJ, wh ich is the sour ce of this
court’ s authority, is a matter of statutory interpretation, which, as a question of law, is [also] reviewed de novo. ” United States v. Buford , 77 M.J. 562, 564 (A.F. Ct. Crim. App. 2017) (citing United States v. Schloff , 74 M.J. 312, 313 (C.A.A. F. 2015), cert. denied , 577 U.S. 1104 (2016)).
“The courts of criminal appeals are courts of limited jurisdiction, defined entirely by statute.” United States v. Arness , 74 M.J. 441, 442 (C.A.A.F. 2015) (citation omitted) . This court’s authority to review the results of Appellant’s

court

- martial is governed by Article 66, UCMJ, 10 U.S.C. § 866

. Article 66(c), UCMJ, provides that a Court of Criminal Appeals (CCA) “ may only act with respect to the findings and sentence as approved by the convening authority.” 10 U.S.C. § 866(c)

.

4 T he factual background underlying Appellant’s convictions can be found in this court’s prior opinion. See Lepore , unpub. op. at *3

– 5.

5 The original CMO dated 24 July 2018 did not include this annotation.United States v. Lepore , No. ACM S32537 (f rev ) (en banc)

4 Rule for Courts

- Martial 1114(b)(1) requires the convening authority to issue an “order promulgating the result of trial and the initial action of the convening authority.” The promulgating order “shall set forth: the type of court

mar tial and the command by which it was convened; the charges and specifications, or a summary thereof, .

. . ; the accused’s pleas; the findings or other disposition of each charge and specification; the sentence, if any; and the action of the convening auth ority .

. . .” R.C.M. 1114(c)(1).

18 U.S.C. § 922(g)(3) provides:
It shall be unlawful for any person[ ]who is an unlawful user of or addicted to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [ § ] 802)) .

. . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearms or ammunition; or to receiveany firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

“The fo llowing conditions trigger the prohibition under 18 U.S.C. [§] 922(g)(3): Conviction or nonjudicial punishment for use or possession,
within the last year, of a controlled substance .

. . .” Air Force Instruction (AFI)
51

- 201, Administration of Military Ju stice

, ¶ 15.28.4.2 (18 Jan. 2019 ) (citing 27 C.F.R. § 478.11). “ In cases where specifications alleging qualifying offenses were referred to trial prior to 1 January 2019 and the accused is found guilty of on e or more qualifying offenses, ‘ FIREARM S PROHIBIT ION

– 18 U.S.C. § 922’ must be annotated in the header [of the court

- martial order].” AFI 51

- 201, ¶ 15.30. “ Persons who receive a court

- martial conviction .

. . for the above qualifications [unlawful use or addiction to any controlled substance per 18 U.S. C. § 922 (g)(3) ] will be submi tted for an additional one year prohibition from the date of the completion of the judici al .

. . action

. . . .” Air Force M anual 71

- 102, Air Force Criminal Indexing , ¶ 4.3.3.6. (21 Jul. 2020).

B. Analysis
Appellant contends that the firearms prohibition annotation citing 18 U.S.C. § 922 on the CMO dated 8 April 2020 was erroneous for multiple reasons

. Appellant requests this court strike the annotation or, in the alternative, order correction of the CMO. T he Government responds that this court lacks jurisdiction to effe ctuate the requested correction; that , moreover, the annotation is correct; and furthermore, assuming the annotation is incorrect, Appellant has failed to demonstrate prejudice. We agree with the Government thatdirecting correction of the firearms prohibition annotation on the CMO is outside of the authority conferred on this court by Article 66, UCMJ.
We recognize this court has previously evidenced a different view as to its authority to c orrect CMO annotations

. In United States v. Dawson , an opinionUnited States v. Lepore , No. ACM S32537 (f rev ) (en banc)

5 primarily about the ability of a military judge to correct a deficient guilty plea inquiry at a post

- trial Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearin g, this

court also had this to say:

Fin ally, as to the third assignment of error, we agree the promulgating order is in error. The government is directed to issue a
new order , deleting the reference to “18 U.S.C. § 922(g)(9).” [ 6 ]
65 M.J. 848, 854 (A.F. Ct. Crim. App. 2007) ; cf. United States v . Branson , No. ACM S32462 (f rev), 2019 CCA LEXIS 260, at *14 n.3 (A.F. Ct. Crim. App. 18 Jun. 2019) (unpub. op.) (directing correction of an erroneous CMO annotation that “DNA processing” wa s required). These two sentences constituted the entirety of the court’s analysis in Dawson of the alleged error in the promulgating
order. However, the obvious implication of this court’s direction that the Government correct the erroneous reference to 18 U.S.C. § 922(g) was that this court had the authority under Art icle 66, UCMJ, to direct such corrections, just as Appellant requests in th e instant case. The Government, which commendably draws our attention to Dawson

, note s the absence of any analysis of jurisdiction in that case

, and suggests we take the opportunity to address the question of jurisdiction now. We find it appropriate to do so.
This court’s jurisdiction is defined entirely by statute, see Arness , 74 M.J.

at 442 (citation omitted), and Article 66(c), UCMJ, specifically limits our authority such that we “may only act with respect to the findings and sentence ” of a court

- martial “ as approved by the convening authority.” 10 U.S.C. § 866(c).
Ten years after Dawson was decided, in Buford this court addressed the limits on our authority to address “errors col lateral to the court

- martial process.” 77 M.J. at 565. There we noted that Article 66, UCMJ, “does not extend a CCA’ s reach to all finance or personnel matters that may have some link to

a court

- martial sentence. ” Id

. Buford specifically held that this cou rt lacked jurisdiction to grant relief for the appellant’s claim that he was owed pay and allowances for accrued leave that he used following his court

- martial prior to going onto an unpaid excess leave status. Id

. However, this court has subsequently re lied on Buford to find we lack jurisdiction in other contexts where appellants have sought relief for alleged deficiencies unrelated to the legality or appropriateness of the court

- martial findings or sentence

. S ee United States
v. Uribe , No. ACM 39559, 20 20 CCA LEXIS 119, at *44

– 48 (A.F . Ct. Crim. App. 16 Apr. 2020) (unpub. op.) (citations omitted) (“ We are not persuaded that po-

6 18 U.S.C. § 922(g)(9) prohibits the shipment, transportation, possession, or recei pt of firearms or ammunition in or through interstate or foreign commerce by one “convicted in any court of a misdemeanor crime of domestic violence.”United States v. Lepore , No. ACM S32537 (f rev ) (en banc)

6 licing the vagaries of the military pay system falls within our limited jurisdiction over the findings and sentence of a court

- mar tial. ”)

, aff’d on other grounds

, 80 M.J. 442 (C.A.A.F. 2021) ; United States v. Warren , No. ACM S32565, 2020 CCA LEXIS 59, at *16

– 17 (A. F. Ct. Crim. App. 28 Feb

. 2020) (unpub. op.) (holding the incorrect coding status as a prisoner after release from confin ement was outside our jurisdiction)

, rev. denied , 80 M.J. 188 (C.A.A.F. 2020) ; United States v. Faughn , 2019 CCA LEXIS 469, at *13 (A.F. Ct. Crim. App. 26 Nov. 2019) (unpub. op.) ( finding no jurisdiction over alleged irregularity in rece ipt of pay prior to start of ap pellate leave ); United States v. Yeargin , No. ACM 39506, 2019 CCA LEXIS 294, at *2

– 3 (A.F. Ct. Crim. App. 8 Jul. 2019) (unpub. op.) (per curiam) (holding garnishment of wages to repay Government for entitlement fraud “is an administrative quest ion over which we have no jurisdiction”); United States v. Prasad , No. ACM 39003, 2019 CCA LEXIS 246, at * 16

– 23 (A. F. Ct. Crim. App. 10 Jun. 2019) (rejecting claim for relief as compensation for post

- trial moving expenses)

, rev’d on other grounds , 80 M.J. 23 (C.A.A.F. 2020)

. We also find persuasive our sister court’s published opinion in United States v. Baratta , 77 M.J. 691, 695 (N.M. Ct. Crim. App. 2018), where the United States Navy

- Marine Corps Court of Criminal Appeals (NMCCA) found it lacked jurisdict ion under Article 66, UCMJ, to address an alleged error highly analogous to the one Appellant asserts in the instant case. In Baratta

, the appellant asserted that the R eport of Results of Trial (RRT) prepared by the Government incorrect ly recorded the offe nse codes to be reported to the Defense Incident

- Based Reporting System (DIBRS), such that civilian reporting systems reflected t he appellant had been convicted of offenses more serious than was actually the case. Id. at 694. However, the NMCCA noted that Article66(c), UCMJ, “authorized [it] to ‘act only with respect to the findings and sentence as approved by the [convening authority].’” Id . at 695. Therefore, the NMCCA reasoned, “when it comes to ensuring ‘official records correctly reflect
the results o f a proceeding,’” a Court of Criminal Appeals was limited to doing so only with respect to the findings and sentence as approved by the convening authority

. Id . (quoting United States v. Crumpley , 49 M.J. 538, 539 (N.M. Ct. Crim. App. 1998) ). The NMCCA exp lain ed that DIBRS codes were not part of the findings of a court

- martial, as defined by R.C.M. 918; nor were they an element of the sentence under R.C.M. 1003; nor were they approved by the convening authority pursuant to R.C.M. 1107. Id . Noting that the R RT correctly reflected the findings and sentence, the court concluded that DIBRS codes are “reporting mechanisms outside the UCMJ and Manual for Courts

Martial” that are “neither findings nor parts of a sentence,” and therefore the NMCCA “d[id] not have th e authority to act upon them.” Id . (citation omitted);

c

f. United States v. Barrick , No. ACM S32579, 2020 CCA LEXIS 346, at *7 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.) (citing Baratta with approvalUnited States v. Lepore , No. ACM S32537 (f rev ) (en banc)

7 and finding “no basis in law to provide relief” for an allegedly incorrect DIBRS code).

We find the NMCCA’s conclusion in Baratta regarding the limits of Article 66(c), UCMJ

, authority to be persuasive , consistent with our reasoning in Buford

, and highly analogous to the issue in Appellant’s case. L ike the DIBRS
codes at issue in Baratta , the 18 U.S.C. § 922(g) annotation on the CMO in Appellant’s case relates to a reporting mechanism external to the UCMJ and Manual for Courts

- Martial . Like the DIBRS codes, the firearms prohibition annotation was not a find ing or part of the sentence, nor was it subject to approval by the convening authority. See R.C.M. 918; R.C.M. 1003; R.C.M. 1107.
Nor does R.C.M. 1114(c)(1 ) require such an annotation to be in the promulgating order. To be clear, we do not hold th at this c ourt lacks authority to directcorrection of errors in a promulgating order with respect to the findings, sentence, or action of the convening authority. However, the mere fact that a firearms prohibition annotation , not required by the Rules for Courts

- Martial, was
recorded on a document that is itself required by the Rules for Courts

- Martial is not sufficient to bring the matter within our limited authority under Article 66, UCMJ.

For the reasons stated above, we hold this court lacks authority under Article 66, UCM J, to direct correction of the 18 U.S.C. § 922(g) firearms prohibition on the CMO. To the extent this court’s prior published decision in United States v. Dawson , 65 M.J. 848 (A.F. Ct. Crim. App. 2007), stands for the contrary proposition, Dawson is overru led. Accordingly, we do not reach the merits of the alleged error in the CMO

.

III. C ONCLUSION
The approved findings and sentence are cor rect in law and fact, and no error materially prejudicial to the substantial rig hts of Appellant occurred. Articles 59 and 66 (c) , UCMJ, 10 U.S.C. §§ 859, 866 (c) . Accordingly, the findings
and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court