This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Adrian GONZALEZ, Private

United States Army, Appellant

No. 19-0297

Crim. App. No. 20160363

Argued January 14, 2020—Decided April 24, 2020

Military Judges: Charles L. Pritchard Jr. and Marc D. Cipriano

For Appellant: Captain Rachele A. Adkins (argued); 

Lieutenant Colonel Tiffany D. Pond and Major Angela D. 

Swilley (on brief); Lieutenant Colonel Todd W. Simpson and 

Major Joseph C. Borland.

For Appellee: Captain Lauryn D. Carr (argued); Colonel 

Steven P. Haight, Lieutenant Colonel Wayne H. Williams,

and Major Dustin B. Myrie (on brief).

Judge OHLSON delivered the opinion of the Court, in 

which Chief Judge STUCKY and Judge SPARKS, joined. 

Judge MAGGS filed a separate dissenting opinion in 

which Judge RYAN joined.

_______________

Judge OHLSON delivered the opinion of the Court.

Upon setting aside one of Appellant’s several convictions

and also setting aside Appellant’s sentence, the United States 

Army Court of Criminal Appeals (CCA) remanded this case to 

the convening authority with instructions to take one of three 

actions. One of these proposed actions was for the convening 

authority to “dismiss [the specification at issue] and reassess 

the sentence, affirming no more than a dishonorable 

discharge and confinement for six years.” United States v. 

Gonzalez, No. ARMY 20160363, 2018 CCA LEXIS 327, at 

*13–14, 2018 WL 3326646, at *6 (A. Ct. Crim. App. July 3, 

2018) (unpublished) (emphasis added). We hold that the CCA 

erred when it issued this instruction. Accordingly, we reverse 

the judgment of the lower court as to the sentence and 

remand this case to the CCA for proceedings consistent with 

this opinion.
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

2

I. Background

A military judge sitting as a general court-martial 

convicted Appellant, pursuant to his pleas, of three 

specifications of violating a lawful general order and two 

specifications of abusive sexual contact, in violation of 

Articles 92 and 120, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 892, 920 (2012). The military judge also 

convicted Appellant, contrary to his pleas, of one specification 

of rape, in violation of Article 120, UCMJ. The convening 

authority approved the adjudged sentence of a dishonorable 

discharge and confinement for ten years.

Upon appellate review, the CCA set aside the rape 

conviction and the sentence, affirmed the remaining findings, 

and instructed the convening authority to take one of three 

actions on remand: (1) order a rehearing on the rape 

specification and sentence; (2) dismiss the rape specification 

and order a rehearing on sentence; or (3) “dismiss [the rape 

specification] and reassess the sentence, affirming no more 

than a dishonorable discharge and confinement for six years.” 

Gonzalez, 2018 CCA LEXIS 327, at *13–14, 2018 WL 

3326646, at *6. In a footnote, the CCA explained:

In reassessing the sentence we are satisfied that the 

sentence adjudged, absent [the rape specification], 

would have been at least a dishonorable discharge 

and confinement for six years. The reassessment 

being both appropriate and purging the record as it 

stands of error does not otherwise limit the sentence 

that may be adjudged at a rehearing.

Id. at *14 n.8, 2018 WL 3326646, at *6 n.8 (emphasis added)

(citations omitted). Appellant did not seek reconsideration of 

the CCA’s remand instructions and did not file a petition for 

grant of review in this Court challenging these instructions. 

Instead, the record of trial was returned to the convening 

authority for further proceedings consistent with the CCA’s 

decision.

On remand, the staff judge advocate (SJA) recommended

that the convening authority dismiss the rape specification, 

approve the remaining findings of guilty, and “reassess the 

sentence to confinement for 6 years and a dishonorable 

discharge.” Appellant provided a Rule for Courts-Martial 

(R.C.M.) 1105/1107 submission but did not question the 
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

3

CCA’s authority to conduct the sentence reassessment or to 

impose a sentence cap after setting aside the sentence. In an 

addendum, the SJA maintained his earlier recommendation.

Before taking action on this matter, the convening 

authority considered a number of documents including the 

CCA opinion, Appellant’s R.C.M. 1105/1107 submission, and 

the SJA’s post-trial advice. The convening authority then (1) 

determined a rehearing on the rape specification was “not 

practicable” and dismissed this specification without 

prejudice, (2) determined a “rehearing on the sentence only 

[was] not practical,” and (3) approved “[o]nly so much of the 

sentence as provide[d] for a dishonorable discharge and 

confinement for six years.”

Appellant’s case once again returned to the CCA for a 

second Article 66, UCMJ, review. Appellant filed a brief 

raising one supplemental assignment of error, but he did not 

challenge the CCA’s authority to conduct a sentence 

reassessment or to impose a sentence cap after setting aside 

the sentence. The lower court affirmed the findings and 

sentence in a brief per curiam opinion.

Appellant waited until filing his petition for grant of 

review in this Court to challenge the CCA’s authority to issue 

the specific remand instructions in his case. We granted 

review on two issues: (1) whether the CCA exceeded its 

statutory authority by reassessing the sentence after it had 

set aside the approved sentence; and (2) whether Appellant 

waived or forfeited this issue. United States v. Gonzalez, 79 

M.J. 264 (C.A.A.F. 2019) (order granting review).

II. Discussion

A. Waiver and Forfeiture

We conclude that Appellant neither waived nor forfeited

his challenge to the CCA’s authority to reassess the sentence 

on its own and impose a sentence cap after setting aside 

Appellant’s approved sentence. This is true for three reasons.

First, “[t]his Court has recognized that ‘[w]aiver can occur 

either by operation of law, or by the intentional 

relinquishment or abandonment of a known right.’” United 

States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019) (internal 

quotation marks omitted) (quoting United States v. Jones, 
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

4

78 M.J. 37, 44 (C.A.A.F. 2018)). The Government in the 

instant case does not argue that there was any waiver by 

operation of law, and we see no basis to conclude that there 

was. 

Second, in terms of waiver resulting from the intentional

relinquishment of a known right, Appellant had no basis to 

challenge the CCA’s authority in the remand proceedings 

before the convening authority because the convening 

authority clearly lacked the power to ignore or correct the 

CCA’s remand instructions. See United States v. Montesinos, 

28 M.J. 38, 44 (C.M.A. 1989) (indicating that the convening 

authority “can only take action that conforms to the 

limitations and conditions prescribed by the [lower court’s] 

remand”); see also United States v. Carter, 76 M.J. 293, 296 

(C.A.A.F. 2017). Therefore, the mere fact that Appellant 

failed to take the useless step of challenging the CCA’s 

authority when he made his submissions to the convening 

authority does not constitute waiver.

Third, at the time Appellant’s case was before the 

convening authority and the CCA, this Court had never 

addressed the CCA’s innovation of conducting a sentence

reassessment and imposing a sentence cap when providing 

remand instructions to the convening authority. Instead, 

Appellant’s case was one of a series of recent cases in which 

the CCA had taken this novel approach.1 Given the CCA’s 

practice and the absence of guidance from this Court, we 

conclude that there was no waiver by the intentional 

relinquishment of a known right, and no forfeiture, when 

Appellant failed to raise a novel issue challenging the CCA’s 

remand instructions. See City of Newport v. Fact Concerts, 

Inc., 453 U.S. 247, 257 (1981) (“[I]t would scarcely be 

appropriate or just to confine our review to determining 

whether any error that might exist is sufficiently egregious to 

qualify [as plain error when the].... very novelty of the legal 

issue at stake counsels unconstricted review.”).

 

1 See United States v. Wall, __ M.J. __, __ (11) (C.A.A.F. 2020)

(Appendix I).
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

5

B. Scope of the CCA’s Authority

In our recent Wall opinion we held that a CCA does not 

have the authority to conduct a sentence reassessment after 

setting aside the sentence. __ M.J. at __ (1, 8–10). And yet, 

that is precisely what happened here. Therefore, the CCA in 

this case erred when it conducted a sentence reassessment 

and imposed a sentence cap after setting aside the sentence.

Because there was error, we next turn our attention to 

prejudice. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012). 

To begin with, the right to a proper and “complete Article 66, 

UCMJ, review is a ‘substantial right’ of an accused.” United 

States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (quoting 

United States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F. 2004)). 

Here, the CCA did not conduct a proper Article 66, UCMJ, 

review because, simply stated, the CCA’s sentence 

reassessment and sentence cap went beyond its statutory 

authority. Article 66(c), UCMJ, authorizes a CCA to act “only

with respect to the findings and sentence as approved by the 

convening authority.” (Emphasis added.) Thus, in the instant 

case where the CCA set aside the findings and sentence as 

approved by the convening authority, the CCA had no 

residual authority to impose a cap on a future sentence that 

did not presently exist. This error effectively means that the 

CCA’s Article 66, UCMJ, review was improper, and without a 

proper review, this case needs to be remanded to the CCA. 

Jenkins, 60 M.J. at 30 (“Article 66(c) review is a substantial 

right. It follows that in the absence of such a complete review, 

Appellant has suffered material prejudice to a substantial 

right.”); United States v. Holt, 58 M.J. 227, 233 (C.A.A.F. 

2003).

In addition, the CCA’s ultra vires action posed a 

substantial risk of interfering with the convening authority’s 

independent decision-making authority on remand by 

improperly influencing what the convening authority deemed 

to be an appropriate sentence. See Wall, __ M.J. at __ (9–10);

R.C.M. 1107(e)(2)(B) (2016 ed.). Indeed, the record in this case 

squarely raises the specter of this improper influence because 
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

6

the convening authority was aware of the CCA’s putative 

sentence cap,2 and then approved that exact same sentence.3

Because the CCA prejudicially erred by conducting a 

sentence reassessment and imposing a sentence cap after 

setting aside Appellant’s sentence, we reverse the decision of 

the CCA as to the sentence.

III. Judgment

We affirm the judgment of the United States Army Court 

of Criminal Appeals as to findings and reverse as to the 

sentence. The record is returned to the Judge Advocate 

General of the Army for remand to the Court of Criminal 

 

2 The dissent contends that “the limitation [on Appellant’s 

sentence] could only have benefitted Appellant.” United States v. 

Gonzalez, __ M.J. __, __ (3) (C.A.A.F. 2020) (Maggs, J., joined by 

Ryan, J., dissenting). This assertion sweeps too broadly. A quick 

hypothetical demonstrates this point. Assume there is a case where 

the CCA acts within its statutory authority and does not reassess 

the sentence and impose a sentence cap after setting aside an 

appellant’s approved sentence. Upon receipt of the case the 

convening authority may reason as follows: “I have seen similar 

cases in the past where the accused received three years in prison. 

Therefore, that is the sentence I will impose here.” However, under 

circumstances similar to the ones presented here where the CCA 

acted ultra vires and imposed a sentence cap, the convening 

authority may reason as follows: 

Although I have seen similar cases in the past where the 

accused received three years in prison, the judges on the Court 

of Criminal Appeals have much more experience in this area 

and have concluded that a sentence of six years in prison is more 

appropriate. Therefore, I will impose a sentence of five years in 

prison. 

Under this scenario, the convening authority would have been 

swayed in his thinking by the mere existence of the improperly 

imposed sentence cap—to the obvious detriment of the appellant. 

And yet, there would be nothing in the record demonstrating that 

this improper effect on the independent decision-making authority 

of the convening authority had occurred.

3 Unlike the dissent, we conclude that the convening authority’s 

decision to approve the exact same sentence as the one authorized 

by the CCA rebuts the presumption of regularity. See United States 

v. Wise, 6 C.M.A. 472, 478, 20 C.M.R. 188, 194 (1955) (indicating 

that the presumption of regularity can be “overcome[]”).
United States v. Gonzalez, No. 19-0297/AR

Opinion of the Court

7

Appeals, which shall: (1) dismiss the rape specification 

(Specification 2 of Charge III) and reassess the sentence; or 

(2) remand to the convening authority who shall (a) order a 

rehearing on the rape specification and the sentence or (b) 

dismiss the rape specification and order a rehearing on the 

sentence alone.
United States v. Gonzalez, No. 19-0297/AR

Judge MAGGS, with whom Judge RYAN joins, dissenting.

I respectfully disagree with the Court’s conclusions that 

Appellant suffered prejudice and that this prejudice requires 

reversal of the decision of the U.S. Army Court of Criminal 

Appeals (ACCA) as to the sentence. I therefore dissent.

I. The ACCA’s Instruction to the Convening Authority

The substantive legal issue in this case is difficult. The 

parties have identified nothing in the Rules for Courts-Martial that either expressly forbids or expressly authorizes the 

kind of instruction that the ACCA provided in this case. This 

Court also has no precedent that directly addresses the legality of such an order, although the Court itself, on occasion,

has issued orders that are similar. See, e.g., United States v. 

Harvey, 64 M.J. 13, 25 (C.A.A.F. 2006) (instructing that the 

“the convening authority may approve no portion of the sentence other than a punitive discharge”); United States v. 

Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (same). Rather than 

decide this difficult issue in this case, I would simply affirm 

the ACCA’s decision on grounds that, even if the instruction 

to the convening authority was improper, Appellant suffered 

no prejudice. The instruction did not harm Appellant when

his case was initially before the ACCA, when the case was 

returned to the convening authority, or when the ACCA reviewed it a second time.

A. The ACCA’s Initial Review

No prejudice to Appellant occurred while the case was initially before the ACCA. Appellant received a complete review 

under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Pursuant to this review, the ACCA set aside a rape specification 

and vacated Appellant’s entire sentence. Appellant did not 

and cannot complain about these results because they were

completely beneficial to him. Thus, even if the instruction to 

the convening authority was in error, that error did not affect 

the ACCA’s initial review. The instruction by its terms could 

only have a prospective effect.

The Court concludes that Appellant suffered prejudice

during the initial review at the ACCA because he did not receive an Article 66(c), UCMJ, review that was free from error.
United States v. Gonzalez, No. 19-0297/AR

Judge MAGGS, dissenting

2

The Court reasons that the ACCA had no authority to impose 

a cap on a future sentence that did not currently exist and 

that “[t]his error effectively means that the CCA’s Article 66, 

UCMJ, review was improper.” This reasoning, however, incorrectly equates the existence of an error with the existence 

of prejudice. Error and prejudice are separate problems. Not 

all errors in conducting a review under Article 66(c), UCMJ, 

are prejudicial. See, e.g., United States v. Ginn, 47 M.J. 236, 

243, 246 (C.A.A.F. 1997) (holding that the Court of Criminal 

Appeals exceeded its authority under Article 66(c), UCMJ, by 

purporting to resolve conflicting post-trial affidavits but concluding that the error caused no prejudice); United States v. 

Akbar, 74 M.J. 364, 408 & n.32 (C.A.A.F. 2015) (holding that

“[e]ven if the CCA erred by failing to perform a proportionality review” under Article 66(c), UCMJ, “any error was harmless”); United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 

2006) (holding that the Court of Criminal Appeals exceeded 

its Article 66(c), UCMJ, authority by considering evidence excluded at trial, but finding the error harmless).1

B. The Convening Authority’s New Action

No prejudice to Appellant occurred while the case was 

back before the convening authority. The ACCA’s instruction 

did not cause the convening authority to decide to dismiss the 

rape specification and to reassess the sentence. The record 

makes clear that the convening authority chose that course 

 

1 In United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003), and 

United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), the Court did 

not decide whether egregious errors in conducting an Article 66(c), 

UCMJ, review—namely, relying heavily on excluded evidence and 

uncritically copying much of the government’s brief into the judicial

opinion—caused prejudice. Instead, in both cases, the Court simply 

remanded for a new review under Article 66(c), UCMJ. But as Ginn, 

Akbar, and Roderick demonstrate, the Court does not always assume that an error in conducting an Article 66, UCMJ, review 

makes the review “incomplete” or “improper,” and automatically 

causes prejudice. On the contrary, only “where the underlying validity of the Article 66(c), UCMJ, review is in question” do we assume prejudice. United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 

2007). Such is not the case here. As explained above, any error in 

the ACCA’s instruction to the convening authority did not—and 

could not, given the prospective nature of the instruction—have materially affected the ACCA’s initial review.
United States v. Gonzalez, No. 19-0297/AR

Judge MAGGS, dissenting

3

because the other two options—a rehearing on the rape specification and the sentence or a dismissal of the rape specification and a rehearing on the sentence only—were both impractical. Accordingly, the convening authority would not have 

chosen either one of them even if the ACCA had not provided 

an instruction regarding reassessment of the sentence.

When the convening authority reassessed the sentence, 

the terms of the instruction did not prejudice Appellant. Although the instruction limited the convening authority’s discretion in reassessing Appellant’s sentence, the limitation 

could only have benefitted Appellant. The instruction did not 

require the convening authority to sentence Appellant to a 

dishonorable discharge and confinement for six years. Instead, the ACCA indicated that the convening authority could 

reassess and affirm “no more than a dishonorable discharge 

and confinement for six years.” Under the ACCA’s order, the 

convening authority therefore had discretion to sentence Appellant to a sentence of less than six years, and the ACCA 

retained the power to review the appropriateness of the sentence approved.

I disagree with Appellant’s argument that the ACCA’s instruction prejudiced him because it “enticed the convening 

authority to abdicate his proper role in the process.” Appellant’s theory is that the order relieved the convening authority of the significant difficulty of actually reassessing the sentence. He asserts that “with a mere pen stroke, the convening 

authority avoided the significant cost, labor, and time associated with a rehearing in a case as complex as this.” I reject 

this contention because nothing in the record supports Appellant’s assertion that the convening authority abdicated his responsibility or otherwise acted improperly. When the record 

is silent on how a convening authority acted, “the presumption of regularity requires us to presume that he carried out 

the duties imposed upon him by the Code and the Manual.”

United States v. Wise, 6 C.M.A. 472, 478, 20 C.M.R. 188, 194 

(1955); see also United States v. Scott, 66 M.J. 1, 4 (C.A.A.F. 

2008) (applying a “presumption of regularity” to the convening authority’s actions (internal quotation marks omitted) (citation omitted)). The mere fact that the convening authority 

approved the maximum sentence authorized by the ACCA 
United States v. Gonzalez, No. 19-0297/AR

Judge MAGGS, dissenting

4

does not rebut this presumption because convening authority 

could have concluded that this sentence was appropriate.

C. The ACCA’s Second Review

Finally, no prejudice to Appellant occurred when the case 

returned to the ACCA. Nothing in the record suggests that 

the instruction prevented Appellant from receiving a proper 

review of his case by the ACCA under Article 66, UCMJ, after 

the convening authority approved the sentence of six years on 

remand. On the contrary, the ACCA’s per curiam decision on 

further review expressly stated: “On consideration of the entire record, we hold the findings of guilty and the sentence as 

approved by the convening authority correct in law and fact.”

In United States v. Clark, 75 M.J. 298, 300 (C.A.A.F. 2016), 

this Court concluded that a CCA “acted within its statutory 

prerogatives under Article 66(c),” UCMJ, based on “the presumption of regularity that applies to the acts of the appellate 

military judges, and the CCA’s statement that it applied the 

statutory prerogatives.” I would reach the same conclusion 

here.

II. Conclusion

For the foregoing reasons, we need not decide in this case 

whether the ACCA’s instruction on remand was unauthorized. Even if it was an error, it caused Appellant no prejudice 

when he initially appealed to the ACCA, when the case was 

returned to convening authority, or when the ACCA again reviewed the findings and sentence. For these reasons, I would 

affirm the decision of the ACCA.