## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201600 4 26

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.


### JAVIER K. FIGUEROA Corporal (E

- 4 ), U.S. Marine Corps

Appellant

_________________________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge : Commander Deborah S. Mayer, JAGC, USN

. Convening Authority: Commander, U.S. Marine Corps Forces

Command, Norfolk, VA

. Staff Judge Advocate’s Recommendation: Colonel R obert A. Fife r, USMC. For Appellant: Lieutenant Donald R. Ostrom , JAGC, USN

.

For Appellee: Brian S. Keller, Esq.

_________________________ Decided 13 April 2017

_________________________ Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges

_______________

__________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

_________________________ P ER CURIAM :
A military judge sitting as a general court

- martial convicted the appellant
, pursuant to his plea s , of an orders violation, assault consummated by battery, and reckless endangerment
, in violation of Articles 92, 128
, and 134 , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 892, 928, and 934 . The military judge sent enced the appellant to 18 months ’ confinement, reduction to pay grade E

- 1, and a bad

- conduct discharge. The c onvening

### United States v. Figueroa , No. 2016004 26

2 a uthority (CA) approved the sentence as adjudged and, pursuant to a pretrial agreement (PTA), suspended all confinement in excess of six m onths

. As an act of clemency, the CA suspended an additional 14 days of the appellant’s sentence to confinement and commuted 4 days’ confinement to restriction. Prior to taking this action, the CA considered the appellant’s clemency matters in which the a ppellant requested “his discharge be upgraded to an other than honorable [discharge] and one month be reduced from his sentence

. ” 1 In his addendum, the staff judge advocate favorably endorsed some form of clemency for the appellant, recommending the additi onal suspension and the commutation of confinement to restriction ultimately adopted by the CA. 2 Although no issues were raised by the parties, we must address the unlawful post

- trial actions taken by the CA in this case.
Pursuant to nearly three

- year

- o ld changes to Article 60, UCMJ, a CA may not “disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge” unless certain exce ptions apply

. 3 As a result of these well

- publicized changes, the CA was prohibited from granting the additional relief requested by trial defense counsel and endorsed by the staff judge advocate. In other words, the CA’s act of clemency was a legal nullity

. United States v. Kruse
, 75 M.J. 971 , 975 (N

- M. Ct. Crim. App. 2016) (holding such an action by the CA to be ultra vires ). However, under Article 57(b), UCMJ, “confinement begins to run on the date it is adjudged, and the appellant is entitled to confinem ent credit once the confinement is adjudged whether or not he is actually confined, unless the confinement is suspended or deferred.” United States v. Lamb , 22 M.J. 518, 518 (N

. M.C.M.R. 1986) (citing United States v. Ledbetter , 2 M.J. 37

1 Trial Defense Counsel’s request ltr 5817 DSO/jgm of 28 Nov 16 at 1. In an earlier request, the appellant sought deferment and waiver of automatic fo rfeitures, which was subsequently granted by the CA.

2 S taff J udge A dvocate’s R ecommendation Addendum of 2 Dec 16 at 1.

3 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113

- 66, 127 Stat. 672, 956

- 57 (2013) (emphasis added). One such e xception, permitting suspension pursuant to a PTA of a period to confinement
, did apply to the appellant’s case, but only inasmuch as was permitted by the specific language of the PTA. See United States v. Kruse , 75 M.J. 971, 975 (N

- M

. Ct. Crim. App. 2016) (“Given Congress ’[s] clear desire to limit CA discretion in granting post

- trial sentencing relief [in Article 60, UCMJ], we are unable, as the government urges, to read this agreement so broadly as to permit the CA to grant relief that was not specificall y contained within the [PTA].”).

### United States v. Figueroa , No. 2016004 26

3 (C.M.A. 1976)). As the additional 18 days’ confinement was improperly suspended and commuted, the appellant’s period of confinement continued to run. Therefore, his total confinement period should be calculated just as it would have been had he remained confined for the ent irety of those 18 days.
III. C ONCLUSION The findings and sentence as approved by the CA are affirmed



### .

For the Court

R.H. TROIDL Clerk of Court