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_______ _______ __________
No. ACM S32685

_______ _______ __________
UNITED STATES Appellee

v.
Sean C

. VARONE Airman First Class (E

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

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 21 July 2 02 2

________________________ Military Judge: Christina M. Jimenez

. S entence: Sentence adjudged on 1 5 December 2020 by Sp CM convened
at Fairchild Air Force Base

, Washington . Sentence entered by military judge on 29 December 2020: Bad

- cond uct discharge, confinement for 120 days

, and reduction to E

- 1.
For Appellant: Lieutenant Colonel Garrett M. Condon , USAF.
For Appellee: Major Sarah L. Mottern , USAF; Mary Ellen Payne , Esquir e

. Before POSCH

, RICHARDSON

, and CADOTTE

, Appellate Military Judges

.

_______ _______ __________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Pr ocedure 30.4.

_______ _______ __________
PER CURIAM:

A special court

- marti al composed of a military judge sitting alone convicted Ap pellant, pursuant to his pleas, of attempted wrongful possession of 3,4

- methylenedixoymethamphetamine (MDMA), failure to obey a lawful general regulation on divers occasions by wrongfully using his prescription Adderall in aUnited States v. Varone , No. ACM S32685

2 manner contrary to the intended medical purpose, wrongful distribution o f Adderall on divers occasions, and wrongful use of MDMA, lysergic ac id diethylamide (LSD), and psilocybin

, in violation of Articles 80, 92, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892, and 912a. 1
, 2 Appellant entered those pleas in accordance with a plea agreement he made with the convening auth ority who referred the charges and specifications to trial by
court

- martial

. 3
When Appellant’s court

- martial convened, the military judge accepted Appellant’s pleas and announced findings of guilty. The military judge sentenced Appellant to a bad

- conduct discharge, confinement for 120 days, and reduction to the grade of E

- 1. In post

- trial processing, the convening authority took noaction on the sentence, and the military judge entered the findings and sentence as the judgment of the court

- martial.
Appella nt asserts one assignment of error pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

. Appellant urges the court to find his

sentence inappropriate compared to his “ co

- actors.” Finding no error materially prejudicial to the substantial right s of Appellant

, and exercising th is court’s responsibility to affirm only so much of the sentence that is correct in law and fact and should be approved, Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1), we affirm th e find ings of guilty and the sentence.

I. B ACKGROUND Appellant’s six convictions relate to offenses he pleaded guilty to committing between 8 March 2019 and 10 August 2019

. As the factual basis for accepting Appellant’s pleas, the military judge relied on Appellant’s sworn statements during the pr ovidence inquiry 4 and a stipulation of fact. The court summarizes below relevant portions of the providence inquiry and stipulated facts

.

1 References to the punitive articles of the UCMJ are to the Manual for Courts

- Martial, United States (2019 ed.)

.

2 The specifications alleged that 3,4

- methylenedixoymethamphetamine and psilocybinwere schedule I controlled substances and Adderall was a schedule II controlled substance.

3 In exchange for Appellant’s pleas of guilty, the convening authority withdrew four specifications charged as violations of Articles 86, 92, and 134, UCMJ, 10 U.S.C. §§ 886, 892, 934 , and dismiss ed with prejudice the withdrawn charges and specifications after announcement of sentence. The entry of judgment correctly records each dismissal with prejudice

.

4 Before placing Appellant under oath, the military judge explained Appellant’ s statements may b e used against him in sentencing. Appellant acknowledged he understood.United States v. Varone , No. ACM S32685

3 A. Adderall
During the relevant period, A ppellant was prescribed Adderall, a stimulant with a high potential for a buse. On two weekends d uring the charged timeframe, Appellant not only gave his medicine to friends but also improperly ingested the drug himself by crushing it into a powder and then snorting it.

In May 2019 , Appellant ingested his prescription Adderall with tw o Airmen

at a servicemember’ s off

- base home in Spokane, Washington

. Appellant “ offered if a nyone else wanted to use the Adderall and the other two agreed. ” T hey formed the now crushed

- up Adderall powder into lines and snorted the controlled substance from a countertop. Appellant used the drug in this ma nn er so he could stay up late and continue drinking alcohol with his friends. He “ also knew that the Adderall help [ed] [him] focus and connect with people by having deeper conversations.” On a second occasion in June 2019 , Appellant along with four Airmen snorted lines of Appellant’s Adderall in a dorm itory room on Fairchild Air Force Base ( AFB ), Washington

. Appellant and the other Airmen had been drinking alcohol and Appellant used it “to feel more euphoric a nd social. ” The Airmen recorde d videos of each other snorting the lines.
Appellant’s plea to the charged offense established that, on divers occasions, he wrongfully distributed his prescription Adderall to other Airmen . It also established that , on divers occasions, he wrongfully used his prescription medicine in a manner contrary to an intended medical purpose. Appellant admitted he failed to obey a lawful general regulation , which Appellant admitted he had a duty to obey.

B. MDMA
In March 2019, from his dorm itory room on Fairchild AFB

, Appellant texted another Airman. The conversation turned to a discussion about using MDMA, which they had talked about in

- person before. The Airman asked Appellant how much MDMA he wanted

, to which Appellant responded a “po int”

—

one

- tenth of a gram

. Appellant believed the Airman could buy the drug from acivilian contact. Using a digital currency application, Appellant paid the Airman $30.00. Soon after, the Airman informed Appellant that the deal with his

contact was cancell ed and the Airman returned the money to Appellant. The conduct described in this paragraph was the basis for Appellant’s attempted possession of MDMA conviction

. Between 1 June 2019 and 10 August 2019, Appellant used MDMA with four Airmen in a dorm itory room on Fairchild AFB. Appellant knew the substance he ingested was MDMA because one of the Airmen told him it was. Two other Airmen crushed the drug into a powder and formed lines , one of which Appellant later snorted. Appellant “felt a sense of euphoria ” and “joy” from using MDMA.United States v. Varone , No. ACM S32685

4 C. LSD
Appellant and four Airmen went as a group to a house in Spokane where Appellant ingested a “ hit ” of LSD. The occupant of the house gave them the drug on small square pieces of cardboard wrapped in metal foil, and told them it was LSD. Appellant placed the hit in his mouth until it fully dissolved ; he felt hallucinogenic effects from ingesting it.

D. P silocybin
On 10 August 2019, Appellant used psilocybin (mushrooms) with four Airmen in a dorm itory room on Fairchild AFB. Appellant arrived to the room after others in t he group had started consum ing the psilocybin

. The bag of mushrooms was passed to Appellant , who took and ate the mushrooms. He knew it was psilocybin because members of the group told him w hat it was. Appella nt felt hallucinogenic effects after consuming the psilocybin.

II. D ISCUSSION Appellant urges th is court to reduce his sentence

, particularly his confinement, explaining the sentence is inappropriate “ especially when compared to his co

- actors

. ” For the reasons that follow, we are not persuaded that sentence relief is warranted

. Before examining Appellant’s contention, we consider whether Appellant’s sentence is inappropriate without regard to a sen tence adjudged in another case. In that regard, we are mindful t hat sentence comparison is but one aspect of evaluating whether a sentence is inappropriate. United States v. Anderson , 67 M.J. 703, 707

– 08 (A.F. Ct. Crim. App. 2009 ) (per curiam).

A. Sentence Review

1. Additional Background
During sentencing, trial defense counsel introduced seven exhibits and testi mony from Appellant’s aunt. She described A ppellant’s difficult childhood, especially in school, and that he did not have much “structure gro wing up.” Appellant’s sentencing argument focused on Appel lant using drugs to “fit in” and his “self

- medicating” for medical issues including a ttention

- deficit/hyperactivity disorder. Appellant’s unsworn statement described that “[his] family moved quite a bit so [they] weren’t in a single place for too long” and he “ended up going to four schools by the time [he] reached fifth grade.” In Appellant’s telling, “ I was kind of a troubled k id with parents that weren’t around and that led me

. . . and my siblings to raise ourselves at an early age. ”
Appellant’s service record s were admitted in sentencing

. They included a record of nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815,United States v. Varone , No. ACM S32685

5 four letters of reprimand

, and two letters of counseling. The adverse information generally portrayed Appellant as an Airman wit h a track record for not reporting for duty at the time prescribed. An e nlisted p erformance r eport for the period of 17 January 2017 through 31 March 2020 states Appellant “[m]et some but not all expectations.”

2. Law
A Court of Criminal Appeals (CCA) reviews de novo the question whether all or part of a sentence is inappropriate. See United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2006). In conducting this review, a CCA may affirm only “the sentence or such part or amount of the sentence” as it finds “correct i n law and fact and determines, on the basis of the entire record, should be approved.” Article 66( d ) (1) , UCMJ , 10 U.S.C. § 866(d)(1). It follows that a sentence should be approved only to the extent it is found appropriate based on a CCA’s review of the en tire record.
“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. 594 , 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in original) ( quoting Anderson , 67 M.J. at 705 ). Although we are empowered to “do justice” in reference to a legal standard, we have no discretion to grant

mercy. United States v. Nerad , 6 9 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted)

. 3. Analysis
We have considered the particular circumstances of Appellant’s case, including multiple convictions stemming from involvement with several controlled substances, including wrongful distribution of his prescription Adderall

. We also considered Appellant’s service records as they bear on his duty performance and rehabilitation potential. We have given individualized consideration to Appellant, the nature and seriousness of the offense s , Appellant’s

recor d of service, and all other mat ters contai ned in the record below. Without regard to sentences adjudged in other cases, we conclude that Appellant’s sentence consisting of a bad

- conduct discharge, confineme nt for 120 days, and reduction to the grade of E

- 1 , is hardly inappropriate.

B. Sentence Disparity Claim
Next, we examine Appellant’s contention that his sentence is inappropriate compared to sentences adjudged in four cases of Airmen who, like Appellant,United States v. Varone , No. ACM S32685

6 wer e involved with illegal drugs. 5 According to Appellant, “ They were allfriends, in the same unit, were generally using drugs together, were investigated jointly, and all went through a special court

- martial at approximately the same time.”
Appellant’s case presents a question similar to United States v. Durant , 55 M.J. 258 (C.A.A.F. 2001). In that case, the United States Court of Appeals for the Armed Forces (CAAF) considered whether a Court of Criminal Appeals (CCA) has a duty “ to mitigate a sentence, which that court otherwise determines to be appropriate, simply because an appellant’s coactor receives substantially less punishment at his or her court

- martial. ” Id. at 259. The CAAF ultimately determined no relief was warranted for the sentence disparit y and the CCA did not abuse its discretion in summarily affirming the sentence

. Id.
at 262

– 63. I mportantly, i n its c onclusion the CAAF endorsed a CCA “ review ing [an] appellant’s sentence for appropriateness and uniformity” Id. at 263 (emphasis added). 6

1. Add itional Background
In separate courts

- martial, Appellant and the four Airmen were each found guilty by a military judge sitting alone, of various drug

- related offenses. According to the entry of judgment in each case, some of the charges were similar by da te or offense, but none of the five Airmen (including Appellant) faced identical charges. JD was sentenced to a bad

- conduct discharge, confinement for two months, forfeitures of $1,155.00 pay per month for six months, reduction to the grade of E

- 1, and a r eprimand. BS was sentenced to a bad

- conduct discharge, confinement for two months, reduction to the grade of E

- 1, and a reprimand. CT was sentenced to a bad

- conduct discharge, confinement for 45 days, forfeiture of $1,155.00 pay per month for two months, a nd reduction to the

5 The c ourt granted Appellant’s motion to attach extra

- record docu ments, specifically the entry of judgment in each of the four other cases. The Government objects to our considering t hese documents. For the reasons we discussed in United States v. Behunin , we assume without deciding tha t we may consider the results in other cases in conducting our review for relative uniformity as part of our Article 66, UCMJ, 10 U.S.C. § 866, sentence review

. N o. ACM S32684 , 2022 CCA LEXIS 412, at * 24 (A.F. Ct. Crim. App. 18 Jul

. 2022) (unpub. op.)

.

6 The Durant conclusion might suggest that a CCA ’s review for relative uniformity is separate and distinct from evaluating whether a sentence is inappropriate. Elsewhere, however, the opinion treats a CCA’s uniformity review as one component of that evaluation. 55 M.J. 258, 261 (C.A.A.F. 2001) (stating , for example, that “[t]he military justice system promotes sentence uniformity through Article 66[, UCMJ,] and the requirement that the [CCAs] engage in a sentence appropriateness analysis”).United States v. Varone , No. ACM S32685

7 grade of E

- 1. Finally, JS was sentenced to a bad

- conduct discharge, confinement for 120 days, reduction to the grade of E

- 1, and a reprimand.

2. Law

In United States v. Lacy

, the CAAF described a CCA’s “sentence review function” as “highly discretionary.” 50 M.J. 286, 288 (C.A.A.F. 1999) . Our responsibility in that regard includes “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothe n , 54 M.J. 294, 296 ( C.A.A.F. 2001) ( citing Lacy , 50 M.J. at 287

– 88 ) . In conducting such reviews, we “are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference

t o disparate sentences adjudged in closely related cases.’” Id. (quoting United States v. Ballard , 20 M.J. 282, 283 (C.M.A. 1985 ) )

. In Lacy

, the CAAF observed the interplay between individualized sentencing and uniformity:
Congress has furthered the goal of uniformity in sentencing in a system that values individualized punishment by re lying on thejudges of the Courts of Criminal Appeals to “utilize the experience distilled from years of pr actice in military law to deter min e whether, in light of the facts surrounding [the] accused’s delict, his sentence was appropriate. In sho rt, it was hoped to attain relative uniformity rather than an arithmetically averaged sentence.”
50 M.J. at 288 (alteration in original) (quoting Unite d States v. Olinger , 12 M.J. 458, 461 (C.M.A. 1982 ) (additional citation omitted) )

.When arguing sentence disparity and asking the court to compare Appellant’s sentence with the sentences of others, “an appellant bears the burden of demonstrating that any cited cases are ‘closely related’ to his or her case and that the sentences are ‘highly disparate.’” Id. (Emphasis added). At the same time, a CCA is not “constrained to specifically limit its comparison of sentences to closely related cases.” United States v. Wacha , 55 M. J. 266, 267 (C.A.A.F. 2001) ; see also Anderson , 67 M.J. at 705 (“In making a sentence appropriateness determination, [CCAs] are required to examine sentences in closely related cases and permitted, but not required, to do so in other cases.” (citing Wacha , 55 M. J. at 267

– 68) (additional citation omitted)). “ If the appellant meets that burden, or if the court raises the issue on its own motion, then the Government must show that there is a rational basis for the disparity.” Lacy

, 50 M.J. at 288.
Cases are “closely related” when, for example, they include “coactors involved in a common crime, servicemembers involved in a common or parallelUnited States v. Varone , No. ACM S32685

8scheme, or some other direct nexus between the servicemembers whose sentences are sought to b e compared.” Id

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

. at 289.
“Sentence comparison does not require sentence equation.” Durant , 55 M.J. at 260. “[T]he military system must be prepared to accept some disparity in the sentencing of codefendants, provided each military accused is sentenced as an individual.” Id

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

. 3. Analysis
Appellant’s brief focuses on the difference between his case and JS’s, as does this court. Both cases involve convictions for drug distribution, and, in that important respect, are dissimilar from the other three. Appellant explains that wh ereas he “distributed his prescribed Adderall to the others,” JS “introduced onto base and distributed LSD and psilocybin to the others. ” Appellant urges the court to reduce his confinement on grounds that he and JS were both adjudged 120 days, even though Appellant was the least culpable of the two.
In response to this point, the Government argues that Appellant’s distribution of his prescription Ad derall is “particularly aggravating.” The Government reasons, “[I]n the same way it would be unfair to compare Appellant’s sentence with members not convicted of Adderall distribution, it too would be unfair to compare [JS]’s sentence to Appellant’s senten ce.” This is because “there issomething uniquely troublesome about the fact Appellant abused his legal prescription to commit illegal activity and to invite others to do so too.”
We need not determine whether the four cases cited by Appellant are closely related to his case, or whether the Government can show a rationalbasis for sentencing differences. Appellant has failed to establish that his sentence, as compared to those of the other Airmen, is highly disparate. See Lacy

, 50 M.J. at 288. F rom our revi ew of each entry of judgment, the results of each of the five court s

- martial included a bad

- conduct discharge, some period of confinement, and red u ction to the grade of E

- 1. Appellant ’s case is most analogous

to JS ’s. B oth Airmen wrongfully distributed a c ontrolled substance and received the same amount of confinement. Even if we were to accept Appellant’s argument that JS’s convictions show greater culpability than his own, the difference is hardly extreme suc h that granting sentence relief on the basis of sentence disparity would be warranted.United States v. Varone , No. ACM S32685

9 C. Conclusion of Sentence Review
In conducting a sentence review, a CCA has responsibility to evaluate “ both the data provided by [an] appellant and the specific circumstances of [an] appellant’s case.” United States v. Washington , 57 M.J. 394, 401 (C.A.A.F. 2002)

. We have done so. Appellant’s sentence is not inappropriate based on the record below and also with regard to findings and sen tences adjudged in other cases that were brought to this court’s attention on appeal.

In our examination of the result s of Appellant’s court

- martial both individually, and in relation to the others, we “utilize the experience distilled from

ye ars of practice in military law” as our superior court allows when a CCA examines questions of sentence disparity. Lacy, 50 M.J. at 288 ; see also Ballard , 20 M.J. at 286 (observing that “ milit ary lawyers who find themselves appointed as trial judges and judges on the courts of military review have a solid feel for the range of punishments typica lly meted out in courts

- martial”). It is an unfortunate reality that we are especially mindful of the range of punishments in drug cases from hundreds of such cases we ha ve seen in our careers

. We are confident that granting relief would not further the ob jective of relative uniformity in sentencing “ in a system that values individualized punishment.” Lacy , 50 M.J. at 288.
Appellant’s case is not one of “ those rare instances in which sentence appropriateness can be fairly determined only by reference to dis parate sentences adju dged in closely related cases.” Sothen , 54 M.J. at 296 (citation and internal quotation marks omitted). For the reasons discussed, t he sentence that “ should be approved ,” Article 66(d)(1), UCMJ, can be determined solely by reference to the record of proceedings below

. Having considered all matters before the court i n conducting our sentence review , Article 66(d)(1), UCMJ, we conclude that relief is not warranted.

III. C ONCLUSION The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant o ccurred. Articles 59(a) and 66(d ), UCMJ, 10 U.S.C. §§ 859(a), 866(d ). Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court