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_______ _______ __________ No. ACM S 3 2 595 (f rev)

_______ _______ __________ UNITED STATES Appellee

v. Kristofer J. CRUSPERO Senior Airman (E

- 4 )
, U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United S tates Air Force Trial Judiciary Upon Further Review
Decided 30 April 202 1

_______ _______ __________ Military Judge: Christina M. Jimenez ; Andrew R. Norton ( remand )

. S entence : Sentence adjudged on 2 April 20 19 by Sp CM convened at McConnell Air Force Base, Kansas. Sentence entered by military judge

on 1 May 2019 and reentered on 4 January 2021 : B ad

- conduct discharge, confinement for 4 months
, forfeiture of $1,000.00 pay per month for 4 months, and reduction to E

- 1. For Appellant: Major Stuart J. Anderson , USAF. For Appellee: M ajor Zachary T. West, USAF; M ary Ellen Payne, Esquire

. Before J. JOHNSON, LEWIS
, CADOTTE, Appellate Military Judges

. Senior Judge LEWIS delivered the opinion of the c ourt, in which Chief Judge J. JOHNSON and Judge CADOTTE joined.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

_______ _______ __________ LEWI S, Senior Judge : This case is before our court for the second time. Previously, our court remanded the case to the Chief Trial Judge, Air Force Trial Judiciary, to resolveUnited States v. Cruspero , No. ACM S32595 (f rev)

2 a substantial issue with the convening authority’s decision memorandum as no action was taken on the adjudged sentence. United States v. Cruspero , No. ACM S32 595 , 2020 CCA LEXIS 4 27 , at * 16

– 17 (A.F. Ct. Crim. App. 24 Nov

. 2020) (unpub. op.). We deferred deciding Appellant’s one assignment of error: whether his sentence is inappropriately severe. During the remand, o n 31 December 2020
, the successor to the convening authority took action on the sentence by approving the sentence in its entirety. As a result, o n 4 January 2021, the military judge signed a modified entry of judgment (EoJ) pur suant to Rule for Courts

- Martial 1112(c)(3)

. 1 O n 1 4 January 2021, Appellant’s record of trial was returned to our court. Appellant submitted no further assignments of error. We find the convening authority ’s 31 December 2020 action on the sentence complies with applicable law and the modified EoJ correctly reflects the post

- trial actions taken in this case. After considering the assignment of error, we find no error that materially prejudiced a substantial right of Appellant and we affirm the findings and sentence.

I. B ACKGROUND A special court

- martial composed of a military judge sitting alone convicted Appellant, i n accordance with his pleas and pursuant to a pretrial agreement (PTA), of three specifications of divers wrongful use of a controlled substance i n violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The three controlled substances were cocaine, 3,4

- methylenedioxymethamphetamine (commonly referred to as ecstasy), and lysergic acid diethylamide (commonly referred to as LSD) . The court

- martial sentenced Appellant to a bad

- conduct discharge, confinement for four months, forfeiture of $1,000.00 pay per month for four months, and reduction to the grade of E

- 1. The adjudged confinement was the same amount as the PTA’s confinement
cap. Our prior opinion explained the facts underlying the investigation of Appellant’s drug use by the Air Force Office of Special Investigations (AFOSI)

. Unpub. op. at * 3

– 4

. We noted that between May 2017 and October 2018, at various locations , Appellant used cocaine approximately 25 times, ecstasy about 20 times, and LSD about 15 times. Id

.

1 References to the punitive articles of the Uniform Code of Military Justice (UCMJ) are to the Manual for Courts

- Martial, United States (2016 ed .). Unless otherwise noted, all other references to the UCMJ and to the Rules for Courts

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

- Martial
, United States (2019 ed.).United States v. Cruspero , No. ACM S32595 (f rev)

3 This opinion will briefly explain the actions of Appellant’s two military roommates, Senior Airman (SrA) EK and SrA KB, as Appellant argues we should comp are his case to theirs and find his bad

- conduct discharge inappropriately severe.SrA EK and SrA KB were both mentioned in Appellant’s trial though neither of them testified as a witness. The parties stipulated that ( 1 ) Appellant acquired a portion of the cocaine, ecstasy, and LSD that he consumed from SrA EK ; and ( 2 ) Appellant wrote a note to SrA EK that described Appellant’s concerns about their cocaine use. Incorporated into the stipulation of fact were

some text messages with various friends about obtai ning drugs. One page of messages involved Appellant asking SrA EK and SrA KB if anyone was selling“snow” which he stipulated was a reference to cocaine. SrA KB replied to Appellant’s text
, “I am not sure. Did you want some?” Later, SrA EK replied she

was headed home and asked “How much do y’all want [?] ” In the providence inquiry, Appellant explained how he was introduced to each drug and some of the circumstances of his later uses of each drug. For cocaine, Appellant stated that SrA KB offered it to him t he first time he used it after she bought it. For later uses of cocaine, Appellant told the military judge
, “I’ve procured it on my own
, and [SrA KB] has as well.” For ecstasy, Appellant stated that SrA KB gave him the first ecstasy pill he used. For later uses of ecstasy, Appellant told the military judge that he purchased the drug but Appellant did not explain whether SrA EK or SrA KB were involved. For Appellant’s first use of LSD, SrA EK and SrA KB were not present . Appellant told the military judge that SrA EK and SrA KB introduced Appellant to the people with whom he used LSD. For later uses of LSD, Appellant did not further explain the involvement of either SrA EK or SrA KB. In his oral unsworn statement, Appella nt told the military judge that SrA EK and SrA KB “ broke [ him ] out of [ his ] shell ” and he started making friends and those friends exposed him to drugs and that doing drugs just became part of the social norm.

II. D ISCUSSION
A. Law We review sentence appropriaten ess de novo. United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2016) (footnote omitted). We may affirm only as much of the sentence as we find correct in law and fact and determine should be ap proved on the basis of the entire record. Article 66( d ) (1) , UCMJ , 1 0 U.S.C. § 866(d)(1)

. “We assess sentence appropriateness by considering t he particular appellant, the na ture and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Sauk , 74 M.J.United States v. Cruspero , No. ACM S32595 (f rev)

4 594, 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in original) (citing United States v. Anderson , 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)) . Although we have great discre tion to determine whether a sentence is appropriate, we have no authority to grant mercy. United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted)

. When arguing sentence disparity and asking us to compare his sentence with the sentences of others, Appellant bears the burden of demonstrating
t hose other cases are “closely related” to his, and if so, that the sentences are “highly disparate.” See United States v. Lacy , 50 M.J. 286, 288 (C.A.A.F. 1999). Cases are “closely related” when, for example, they include “coactors involved in a common crime, servicemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Id

. The test for whether sentences are “highly disparate” is “not limited to a narrow comparison of the relevant numerical values of the sentences at issue, but also may include consideration of the disparity in relation to the potential maximum punishment.” Id

. at 289. If an appellant meets that burden, then the Government mus t show a rational basis for the sentence differences. Id

. at 288. “ Sentence comparison does not require sentence equation. ” United States v. Durant , 55 M.J. 258, 260 (C.A.A.F. 2001) (citation omitted). “[ T ] he military justice system must be prepared to ac cept some disparity in the sentencing of codefendants, provided each military accused is sentenced as an individual.” Id

. at 261 (citations omitted). “[C]harging decisions by commanders in consultation with their trial counsel, as well as referral decision s by convening authorities after advice from their Staff Judge Advocates, can certainly lead to differences in sentencing.” Id

. During our Article 66(d), UCMJ, review of sentence appropriateness, we “are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’” See United States v. Sothen , 54 M.J. 294, 296 (C.A.A.F. 2001) (citation omitted).
B. Analysis Appellant argues that his sentence is inappropriately severe because his sentence included a bad

- conduct discharge, while the sentences of SrA EK and SrA KB did not include this punishment. Appellant argues that the cases are closely related given the three used controlled substances together. He arguesthe record does not provide any rational basis for the highly disparate sentences , and that we should not affirm his bad

- conduct discharge. To support his assignment of error, Appellant filed a motion to attach the Air Force Court

- Martial Summaries f or February 2019 which , among the 31United States v. Cruspero , No. ACM S32595 (f rev)

5 case summaries, include s one

- paragraph summaries from S rA EK’s and SrA KB’s special court s

- martial. We granted the motion to attach and b oth parties reference the summaries in their briefs. 2 The summaries show that both SrA EK and SrA KB were found guilty by a military judge sitting alone of “wrongful use of a controlled substance.”
SrA EK’s court

- martial summary shows she was sentenced to confinement for seven months, forfeiture of $1,120.00 pay per month for seven months, reduction to the grade of E

- 1 , and a reprimand. SrA KB’s court

- martial summary shows she was sentenced to confinement for 100 days, hard labor without confinement for 60 days, restriction for 60 days, forfeiture of $500.00 pay per month for six months, reduction to the grade of E

- 1, and a reprimand. Finally, SrA KB’s summary states that her adjudged sentence “did not exceed the negotiated terms” of the PTA. The Government argues that we should not compare Appellant’s sentenc e to the sentences of his roommates because Appellant has not met his burden to show the cases are closely related. The Government acknowledges some overlap between the cases but argues there is much that we do not know about SrA EK’s and SrA KB’s trials i ncluding: (1) the charges; (2) the pleas; (3) the frequency or circumstances of the drug use; and (4) if there were significant mitigating or extenuating facts in their cases, such as cooperation with law enforcement. We find that Appellant has not met hi s burden of showing t hat SrA EK ’s and SrA KB’s cases are closely related to his. We agree with the Government that we know very few details about SrA EK’s and SrA KB’s cases.
We can discern the following : (1) all three cases were tried in the same forum, a special court

- martial, and at the same installation ; (2) Appellant was the only one sentenced to a bad

- conduct discharge ; (3) the other two cases i nvolved a conviction for at least one wrongful use of a controlled substance while

2 We understand that we are permitted to consider matters from outside the record of trial when necessary to resolve issues raised by materials in the record of trial. See United States v. Jessie , 79 M.J. 437, 442

– 44 (C.A.A.F. 2020). The involvement of SrA EK and SrA KB in some of the Appellant’s drug offenses w as raised by the stipulatio n of fact
, and we considered the court

- martial summaries in our determination of whether Appellant’s case is closely related to their cases. Cf. United States v. Harris
, No. ACM 39640, 2020 CCA LEXIS 299, at *31 (A.F. Ct. Crim. App. 2 Sep. 2020) (unpub.
op .) (determining a non

- prosecution of one military offender and an acquittal of another were outside of the “entire record” and could not be considered on the appellant’s requests for a post

- trial hearing or new trial). Additionally, we note both parties ha ve referenced the court

- martial summaries in their briefs, without objection, which would also permit us to consider them without ruling on this issue

. See United States v. Stanton , 80 M.J. 415
, 417 n.2 (C.A.A.F. 2021).United States v. Cruspero , No. ACM S32595 (f rev)

6 we know Appellant was co nvicted for using three different controlled substances, each on divers occasions ; (4) Appellant acquired a portion of the cocaine, ecstasy, and LSD that he consumed from SrA EK; (5) SrA KB provided Appellant the cocaine and ecstasy for his first use; (6) Appellant wrote a letter about his concerns about how much cocaine the three of them were using; and (7) Appellant was the last of the three to be tried.
There are crucial matters that we do not know about SrA EK’s and SrA KB’s cases. Most prominently, w e do not have the EoJ in either case that w ould list the specifications, the charged timeframe, the pleas, and the findings

. Cf. United States v. Nettles
, No. ACM 38336, 2014 CCA LEXIS 254
, at *16 (A.F. Ct. Crim. App. 21 Apr. 2014) (per curiam) (unpub. op.) (noting the appellantmoved to attach the Report of Result of Trial which included the pleas, findings, and sentence of another officer’s case)
, vacated and dismissed on other grounds , 74 M.J. 289 (C.A.A.F. 2015)

. As our court has not reviewed SrA EK ’s

or SrA KB’s cases we cannot consider o pinions of our court to determine these matters. See United States v. Schmidt , No. ACM 39604, 2020 CCA LEXIS 37, at * 9

– 10 (A.F. Ct. Crim. App. 5 Feb. 2020) (unpub. op

. ) ( considering a released opinion of our court to dec ide whether a case wa s closely related)
, rev. denied
, 80 M.J. 293 (C.A.A.F. 2020).
With out providing us information about the basic charging scheme 3 in the other two cases, Appellant has not met his burden to show he is a coactor in a common crime or a co mmon or parallel scheme with SrA EK or SrA KB. It is possible there is a direct nexus between one or more of Appellant’s offenses and SrA EK’s and SrA KB’s offenses. B ut we cannot determine with any degree of certainty that a dire ct nexus exists for even a majority of the offenses in Appellant’s case
, and we decline to relieve Appellant of his burden of showing his case is closely related to SrA EK’s and SrA KB’s cases. We do not find this to be one of “those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.” See Sothen , 54 M.J. at 296 (citation omitted)

. W e do not reach the question of whether the Government can show a rational basis for why Appellant receive d a bad

- conduct discharge and SrA EK and SrA KB did not. We note that we know nothing about the extenuation and mitigation evidence presented in SrA EK’s or SrA KB’s cases or why those cases proceeded to trial ahead of Appellant’s case.

3 Appellant does not allege that he faced more specifications than his roommates as “the result of some type of invidious, constitutionally impermissible discrimination.” See United States v. Durant , 55 M.J. 258, 261 (C.A.A.F. 2001)

.United States v. Cruspero , No. ACM S32595 (f rev)

7 We realize that we may consider the sentences of SrA EK’s and SrA KB’s even if the ir cases are not closely related to Appellant’s. We decline to do so. “The appropriateness of a sentence generally should be determined without reference or comparison to sentences in other ca ses.” United States v. LeBlanc
, 74 M.J. 650, 659 (A.F. Ct. Crim. App. 2015) (en banc) (cit ing United States v. Ballard , 20 M.J. 282, 283 (C.M.A. 1985)). We find no reason to deviate in this case from the general rule set out in LeBlanc

. We have considered the particular circumstances of Appellant’s case, including his involvement with three illegal drugs over an extended period of time a s well as the extenuation and mitigation evidence presented

. Having given individualized consideration to Appellant, the nature and seriousness of the offense s , Appellant’s recor d of service including his deployment , and all other mat ters contai ned in the record of trial, we conclude that the sentence, including the bad

- conduct discharge, is not inappro priately severe.

III. C ONC LUSION Upon further review, the findings and sentence entered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(d), Uniform Code of Military Justice, 10 U.S.C. § § 859 (a), 866(d). Accordingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court