This opinion is subject to administrative correction before final disposition.

Before 

DALY, GROSS, and de GROOT

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Sergio ROCHA, Jr.

Master Gunnery Sergeant (E-9), U.S. Marine Corps

Appellant

No. 202300263

_________________________

Decided: 28 August 2024 

Appeal from the United States Navy-Marine Corps Trial Judiciary 

Military Judge: 

Eric M. Catto

Sentence adjudged 17 July 2023 by a general court-martial convened at 

Marine Corps Base Hawaii, Hawaii, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for 18 months, and a bad-conduct discharge.1

For Appellant: 

Lieutenant Colonel Matthew E. Neely, USMC

 

1 Appellant was credited with having served 265 days of pretrial confinement. 
United States v. Rocha, NMCCA No. 202300263

Opinion of the Court

2

For Appellee: 

Lieutenant Michael A. Tuosto, JAGC, USN

_________________________

This opinion does not serve as binding precedent under 

NMCCA Rule of Appellate Procedure 30.2(a).

_________________________

PER CURIAM:

A military judge sitting alone as a general court-martial convicted Appellant pursuant to his pleas of one specification of wrongfully possessing child 

pornography, in violation of Article 134, Uniform Code of Military Justice 

[UCMJ].2 Appellant asserts one assignment of error pursuant to United States 

v. Grostefon:3 Is the bad-conduct discharge portion of his sentence inappropriately severe? We find no prejudicial error and affirm.

I. BACKGROUND

Appellant served on active duty in the United States Marine Corps for over 

28 years. He enlisted in the Marine Corps on 17 January 1995. Appellant’s 

military record demonstrates nearly 3 decades of outstanding service to his 

country and the Marine Corps, several deployments into a combat zone to include two to Iraq in support of Operation Iraqi Freedom and one to Afghanistan 

in support of Operation Enduring Freedom, and promotion to and success at 

the highest enlisted ranks. 

Juxtaposed with Appellant’s excellent military record, however, is his 

guilty plea that forms the basis of this appeal. Appellant pleaded guilty to possessing images of child pornography that contained children in sexual poses

identified as being between 12 and 15 years old. The maximum punishment 

authorized by law in Appellant’s case, based solely on his guilty plea, was 10 

years confinement, a dishonorable discharge, total forfeiture of pay and allowances, and reduction to E-1.

Appellant entered into a plea agreement with the convening authority that 

contained the following limitations on punishment: a punitive discharge may 

be adjudged; confinement shall be adjudged for a minimum of 12 months and 

 

2 10 U.S.C. § 934.

3 United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
United States v. Rocha, NMCCA No. 202300263

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3 

a maximum of 36 months; no forfeitures shall be adjudged; if a punitive discharge is adjudged, reduction to E-1 shall be adjudged; if a punitive discharge 

is not adjudged, reduction between the paygrades of E-3 and E-7 shall be adjudged; and no other lawful punishments will be imposed. The plea agreement 

also included the provision, “[T]he convening authority agrees to suspend under [Rule for Courts-Martial] 1109(f) any portion of my sentence that the military judge recommends suspending in the Statement of Trial Results.”4 The 

military judge sentenced Appellant to 18 months of confinement, reduction to 

the grade of E-1, and a bad-conduct discharge. 

II. DISCUSSION

Appellant asserts his otherwise exemplary 28-year record of service, the 

nature and seriousness of his offense, and all the matters contained within the 

record lead to the conclusion that the bad-conduct discharge portion of his sentence is inappropriately severe and should be set aside. We disagree. 

We review sentence appropriateness de novo.5 This 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.”6 In exercising this function, we seek to assure that “justice is done 

and that the accused gets the punishment he deserves.”7 The 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.”8 We 

have significant discretion in determining sentence appropriateness, but may 

not engage in unfettered acts of clemency.9

A court-martial may adjudge any punishment authorized, except “[i]f the 

military judge accepts a plea agreement with a sentence limitation, the courtmartial shall sentence the accused in accordance with the limits established 

 

4 App. Ex. XXII. at 4, para. 9a. 

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

6 Article 66(d)(1), UCMJ. 

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

8 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal 

quotation marks omitted). 

9 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
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4

by the plea agreement.”10 Additionally, “[T]he punishment which a court-martial may direct for an offense may not exceed such limits as the President may 

prescribe for that offense.”11 Given the terms of Appellant’s plea agreement 

and the sentence adjudged, we find that the adjudged sentence did not exceed 

the maximum allowable sentence under the UCMJ, nor did it exceed the terms 

of the plea agreement.

Appellant committed serious misconduct. Appellant possessed child pornography (digital images of minors, or what appeared to be minors, engaged in 

sexually explicit conduct). Appellant entered a stipulation of fact that described the images in detail and how he labeled or catalogued the various images.12 He also stipulated that four of the images he possessed are from known 

minors identified by the National Center for Missing and Exploited Children

and that he intentionally searched for pictures of children under the age of 18.

Under these circumstances, a bad-conduct discharge, which is “less severe than 

a dishonorable discharge and designed as a punishment for bad-conduct,” is 

appropriate.13 The military judge’s imposition of a discharge that Appellant 

specifically agreed could be approved as adjudged is not inappropriately severe.14

Appellant requested that the military judge not impose a punitive discharge or, if he did, that the military judge make a recommendation to the 

convening authority to suspend the discharge.15 The military judge, having 

heard and seen all of the evidence, granted neither request.16 The record shows 

Appellant’s punishment was the predictable result of his plea agreement that 

 

10 R.C.M. 1002(a)(2).

11 Article 56(a), UCMJ.

12 Pros. Ex. 1 (Stipulation of Fact).

13 R.C.M. 1003(b)(8)(C).

14 See United States v. Avellaneda, 84 M.J. 656 (N-M. Ct. Crim. App. 2024) (although not dispositive, when an accused who is represented by competent counsel bargains for a specific sentence, that is strong evidence that the sentence is not inappropriately severe, and it will likely not be disturbed on appeal).

15 R. at 242.

16 Entry of Judgment at para. 14 and Statement of Trial Results at para. 25. (The 

military judge did not recommend suspension of the bad-conduct discharge or other 

portion of the sentence).
United States v. Rocha, NMCCA No. 202300263

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5

he negotiated and voluntarily entered into with the convening authority.17 Appellant voluntarily chose to plead guilty in accordance with the specific terms 

of an agreement he freely negotiated. As we have previously stated, “we generally refrain from second guessing or comparing a sentence that flows from a 

lawful pretrial agreement.”18 Accordingly, we find Appellant’s assignment of 

error to be without merit.

III. CONCLUSION

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.19

The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON

Clerk of Court

 

17 United States v. Bocage, No. 202000206, 2022 CCA LEXIS 311 at *7 (N-M. Ct. 

Crim. App. May 25, 2022) (unpublished).

18 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172 at *7 (N-M. Ct. 

Crim. App. Mar. 22, 2016) (unpublished) (citation omitted); but see United States v. 

Kerr, No. 202200140, 2023 CCA LEXIS 434 (N-M. Ct. Crim. App. Oct. 17, 2023) (unpublished) (setting aside bad-conduct discharge that resulted from a failure of the plea 

bargaining process).

19 Articles 59 & 66, UCMJ.