## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant JOHN J. RODRIGUEZ

United States Army, Appellant

ARMY 20120311

Headquarters, National Trai ning Center and Fort Irwin David L. Conn, Military Judge

Lieutenant Colonel Gail A. Curley, Staff Judge Advocate

For Appellant: Colone l Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA ( on brief); Major Amy E. Niem an, JA; Captain James S. Trieschmann, Jr., JA (on supplemental brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Capt ain Steve T. Nam, JA (on brief).

29 September 2014

--------------------------------- SUMMARY DISPOSITION

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LIND, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of conspiracy to wrongfully distribute marijuana; conspiracy to commit larceny of property of a value greater than $500.00; conspiracy to commit larceny of military firearms ; damage of military proper ty of a value greater than $500.00; sale of military fire arms (four specifications); wrongful disposition of military firearms (three specifications); da mage of non-military property of a value less than $500.00; wr ongful possession of more than 30 grams of mari juana with the intent to distribute; wrongful introduction of marijuana onto a military installation

with the intent to distribu te; wrongful distribution of marijuana; wrongful use of marijuana; larceny of proper ty of a value greater than $500.00; larceny of military property of a value greater than $500.00; la rceny of military firearms; unlawful entry (two specifications) in violation of Articles 8 1, 108, 109, 112a, 121, and 134, Uniform Code of Military Ju stice [hereinafter UCMJ], 10 U.S.C. §§ 881, 908, 909,RODRIGUEZ — ARMY 20130311

2 912a, 921, 934 (2006). The military judge sentenced appellant to a bad-conduct discharge, confinement for twenty years, forfeiture of all pa y and allowances, and reduction to the grade of E-1. The convening author ity approved the adjudged sentence and credited appell ant with 247 days against the sentence to confinement.

This case is before the court for review under Article 66, UC MJ. Appellant raises several assignments of error, only one of which merits discussion and relief.

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 subs tantial 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 factua l 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).

Appellant pled guilty to and was convicted of, inter alia , Specification 1 of Charge IV, which alleged: “In that [appella nt] did, at or near Fort Irwin, California,

on divers occasions between on or about 1 December 2010 and on or about 28 July 2011, wrongfully possess an amount totaling gr eater than 30 gram s of marijuana,

with the intent to distribute the said ma rijuana.” However, du ring the providence inquiry, appellant admitted on ly that he possessed more than 30 grams of marijuana

with the intent to distribute on a single occasio n. Attached to the stipulation of fact was a photograph, which appellant described during the inquiry as a photograph of himself holding two ba gs of marijuana that he and his cousin possessed with the intent to distribute. Appellant told the military judge that each bag contained an ounce of marijuana. The judge, without defe nse objection, took judicial notice that one ounce of marijuana was equal to 28 grams of marijuana. Appellant then clarified with the judge that, although he intended to dist ribute this marijuana, he never brought it onto Fort Ir win. Appellant expl ained that this was the only instance during which appellant po ssessed more than 30 grams at one time. * We find a

substantial basis in fact to question’s appellant’s plea to “divers oc casions” in Specification 1 of Charge IV and will grant relief in our de cretal paragraph.

* Appellant also admitte d that on 10 to 15 occasions, he would bring on to Fort Irwin one or two grams of marijuan a with the intent to distri bute. However, even if appellant brought two grams of marijuana onto Fort Irwin on 15 occasions, appellant would not have possessed more than 30 grams with the intent to distribute.RODRIGUEZ — ARMY 20130311

3 CONCLUSION

We affirm only so much of Specification 1 of Charge IV as provides: “In that Sergeant John J. Rodriguez, U.S. Army, did, at or near Fort Irwin, California,

between on or about 1 De cember 2010 and on or abou t 28 July 2011, wrongfully possess an amount totaling gr eater than 30 grams of mari juana, with the intent to distribute the said mariju ana.” The remaining findin gs of guilty are AFFIRMED.

Reassessing the sentence on the basis of the error noted, the entire record, and applying the factors set forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and th e principles of United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986), the sentence is AFFIRMED. All rights, privilege s, and property, of which appellant has been deprived by virtue of that portion of th e findings set aside by this decision, are ordered restored.

Judge KRAUSS and Judg e PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: