This opinion is subject to administrative correction before final disposition.

Before GASTON
, BAKER, and MYERS Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.

J ose A. Cabrera Sergeant (E

- 5 ), U.S. Marine Corps Appellant

No. 20 2 10008 5

_________________________
Decided: 26 July 2022
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge: Keaton H. Harrell
Sentence adjudged 4 December 2020 by a special court

- martial convened at Marine Corps Base Camp Lejeune, North Carolina , consisting of a military judge sitting alone

. Sentence in the Entry of Judgment: reduction to E

- 1, confinement for 5 months , and a bad

- conduct discharge

. For Appellant: Lieutenant Daniel O. Moore
, JAGC, USN
For Appellee: C

ommander Josh ua M. Hawkes, JAGC, USN Lieutenant John L. Flynn IV, JAGC, USNUnited States v. Cabrera
, NMCCA No. 20 2 10008 5 Opinion of the Court

2 _________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM: Appellant was convicted, pursuant to his pleas, of violation of a lawful general order , false official statement, four specifications of assault consummated by a battery, and aggravated assault in violation of Article s 92 , 107 , and 128 , Uniform Cod e of Military Justice [UCMJ]
, 1 for hazing a subordinate Marine , making a false official statement during the investigation , assault ing four other Marines , and choking a sixth Marine into unconsciousness

. In his sole assignment of error , he asserts that a p unitive discharge i s inappropriately

severe , argu ing that his record demonstrates sustained superior performance along with his willingness to enter into a plea agreement . We affirm the findings and sentence.



### I. B ACKGROUND

W hile acting as platoon sergeant, Appellant hazed a Lance Corporal (LCpl) under his charge during classroom instruction, berat ing hi m for his out

- of

shape appearance , for not speaking loud ly enough, and for his inability to answer simple questions. Over an 18

- month period , he physically assa ulted five other Marines over whom he held a position of authority . He threw one Marine into a wall and struck him with his fists ; he threw another Marine onto the ground ; he slamm ed a Private First Class’s night vision gear into the Marine’s mouth , chipp i ng his tooth ; he slapped a LCpl in the face ; and he plac ed a nother LCpl in a chokehold , rendering him temporarily unconscious. When questioned by his First Sergeant about the allegations of hazing and assault
, Appellant provid ed a written statement falsely denying the allegations. Appellant subsequently entered into a plea agreement in which he agreed to plead guilty at a special

- court martial to the above

- described offenses in exchange for the convening authority agree ing to a c onfinement range of three to

1 10 U.S.C. § § 892, 907, 928.United States v. Cabrera
, NMCCA No. 20 2 10008 5 Opinion of the Court

3 six months , and to withdraw and dismiss 12 other specifications

. The agreement placed no limitation on the military judge’s ability to adjudge a punitive discharge

.



### II. D ISCUSSION
We review sentence appropriateness de novo

. 2 T his Court may only affirm

“ the sentence, or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” 3 In exercising this function, we seek to assure that “justic e is done and that the accused gets the punishment he deserves.” 4 Th e review requires

an “ individualized consideration of the particular accused on the basis of the nature and seriousness of the offense and the character of the offender. ” 5 In making this a ssessment, we analyze the record as a whole. We have significant discretion in determining sentence appropriateness, but we may not engage in acts of clemency. 6
I n light of the serious and repeated nature of Appellant’s misconduct, which adversely impacte d the service of six Marines under his authority and the Marine Corps’ mission readiness, we find that the sentence including 5 months ’ confinement and a bad

- conduct discharge is just, and that Appellant received the punishment he deserves. Despite evid ence of his prior record of good service, the evidence reveals a year and a half of abusive behavior towards junior Marines by Appellant, who was a noncommissioned officer in a position of authority

. Th e a buse included hazing and assaults that resulted in pain, embarrassment, a chipped tooth , and a LCpl passing out after being placed in a chokehold by Appellant , who then furthered his misconduct by denying to his First Sergeant allegations he knew to be true. The pres entencing hearing did little to mitigat e the egregious nature of th e misconduct , about which two of the Marines testified they initially thought, “that’s just how the Marine Corps i s.” 7

2 United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2006).

3 Article 66(d)(1), UCMJ

.

4 United States v. Healy , 26 M.J. 394, 395 (C.M.A. 1988).

5 United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal quotation marks omitted).

6 United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010).

7 R. at 15 4 , 169

.United States v. Cabrera
, NMCCA No. 20 2 10008 5 Opinion of the Court

4 Appellant’s punishment was also the predictable result of the plea agreement he negotiated and voluntarily e ntered into with the convening authority. As Appellant acknowledged at trial, t he agreement provided that he could be sentenced to a punitive discharge and a period of between three and six months ’ confinement

. Thus, u nder the terms of the agreement the military judge could have sentenced Appellant to six months ’ confinement and a bad

conduct discharge. Instead , t he military judge adjudged a sentence that included a bad

- conduct discharge and only five months ’ confinement . Th e sentence was within the p arameters of th is agreement , and a s we have previously stated, “ w e generally refrain from second guessin g .

. . a sentence that flows f rom a lawful pretrial agreement

. . . .” 8 After reviewing the record as a whole, we find the sentence is correct in law, appropriately reflects the matters in aggravation, extenuation , and mitigation presented, and should be approved.



### III. C ONCLUSION

After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. 9
T he findings and the sentence are AFFIRMED

.

FOR THE COURT:

S. TAYLOR JOHNSTON Interim Clerk of Court

8 United States v. Widak
, No. 201500309, 2016 CCA LEXIS 172 , *7 (N

- M. Ct. Crim. Ap p. Mar. 22, 2016) (unpublished); see also United States v. Casuso , No. 202000114, 2021 CCA LEXIS 328
, *8 (N

- M. Ct. Crim. App. June 30, 2021) (unpublished) (questioning an appellant’s “claim of inappropriate severity when the sentence he received was within the range of punishment he was expressly willing to accept in exchange for his pleas of guilty”).

9 Arti cles 59 & 66, UCMJ

.