UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32574

________________________

UNITED STATES

Appellee

v.

Landon M. TAYLOR

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 29 August 2019

________________________

Military Judge: Mark F. Rosenow (arraignment); Rebecca E. Schmidt.

Approved sentence: Bad-conduct discharge, confinement for 5 months, 

and reduction to E-1. Sentence adjudged 11 December 2018 by SpCM 

convened at Vandenberg Air Force Base, California.

For Appellant: Major Kirk W. Albertson, USAF.

Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

PER CURIAM:

In accordance with Appellant’s pleas pursuant to a pretrial agreement, a 

special court-martial composed of a military judge convicted Appellant of two 

specifications of impaired operation of a vehicle, one specification of wrongful 

use of marijuana on divers occasions, one specification of wrongful introduction 

of marijuana, one specification of wrongful distribution of marijuana, and one 

specification of breaking restriction in violation of Articles 111, 112a, and 134, 
United States v. Taylor, No. ACM S32574

2

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 911, 912a and 934.1

The military judge sentenced Appellant to a bad-conduct discharge, confinement for 5 months, and reduction to E-1. The pretrial agreement did not impact 

the sentence the convening authority could approve and the convening authority approved the adjudged sentence.

I. BACKGROUND

This case was submitted for our review on its merits without assignment 

of error. Upon our review, we noted two errors: (1) a scrivener’s error on the 

charge sheet in which the Appellant pleaded and was found guilty of using 

marijuana on or about 31 September 2018 (emphasis added); and (2) the staff 

judge advocate’s recommendation (SJAR) misstated the maximum punishment in a special court-martial. We briefly address each error.

II. DISCUSSION

A. Charge Sheet – Scrivener’s Error

The first error involves Specification 1 of Charge I. After Appellant’s arraignment, the Government elected to amend Specification 1 of Charge I by 

striking the word “August” and replacing it with the word “September”,

thereby expanding the charged timeframe by one month. The specification 

then read, in pertinent part, “between on or about 1 December 2017 and on or 

about 31 September 2018 wrongfully use marijuana.”2 Appellant pleaded and 

was found guilty of the amended specification. The obvious challenge created

by this change is that there was no 31 September 2018, because September 

only has 30 days in the month. Despite the “on or about” language in the specification, we elect not to affirm an obvious scrivener’s error for a date that does 

not exist. 

During his providence inquiry with regard to Specification 1 of Charge 1, 

Appellant stated at one point: “On multiple occasions, within Vandenberg or 

California, or the local area, I used marijuana between 1 December and . . . to 

the 3rd of September 2018.” In the stipulation of fact, Appellant stipulated to 

 

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ) and 

Rules for Courts-Martial (R.C.M.) are found in the Manual for Courts-Martial, United 

States (2016 ed.).

2 The Government also added a terminal element to the Specification of Charge III, 

breaking restriction. Appellant did not object to the major changes pursuant to R.C.M. 

603.
United States v. Taylor, No. ACM S32574

3

“routinely using marijuana since December 2017.” Furthermore, during his 

providence inquiry Appellant was asked by the military judge: “Do you know 

how many times you used marijuana between the first of December 2017 and 

the 31st of September 2018?” Appellant replied: “I don’t know the exact number; but, I smoked within that timeframe at least once or twice a week.”3

We are mindful of the recent United States Court of Appeals for the Armed 

Forces (CAAF) opinion in United States v English, __ M.J. __, No. 19-0050, 

2019 CAAF LEXIS 562, (C.A.A.F. 30 July 2019). In English, CAAF stated: “As 

the Government concedes, exceptions and substitutions under Rule for CourtsMartial (R.C.M.) 918(a)(1) (2016 ed.), may not be made at the appellate level.”

Id. at *2 (citing United States v. Lubasky, 68 M.J. 260, 261 (C.A.A.F. 2010)).

However, CAAF further clarified: “In performing its review under Article 66(c), 

UCMJ, a Court of Criminal Appeals (CCA) may narrow the scope of the appellant’s conviction to that conduct it deems legally and factually sufficient.” English at *6 (citing United States v. Piolunek, 74 M.J. 107, 112 (C.A.A.F. 2015)

(language omitted); United States v. Rodriguez, 66 M.J. 201, 203 (C.A.A.F. 

2008) (“upholding the CCA's decision to strike ‘on divers occasions’ from the 

specification at issue and affirm only one instance of the offense”)).

4 In this 

case, we are narrowing the time frame to that conduct we deem legally and 

factually sufficient. Therefore, based on the Appellant’s own words during the 

providence inquiry that he used marijuana until the “3rd of September,” in our 

decretal paragraph, we will strike the number “1” from the date “31 September 

2018.”

B. SJAR Error – Maximum Punishment

The second error involves the SJAR, in which the maximum punishment

was stated as a: “bad conduct discharge, confinement for one (1) year, and forfeiture of two-thirds pay per month for twelve (12) months.” The SJAR did not 

include reduction to E-1 as part of the maximum punishment. See Article 56(a)

UCMJ and R.C.M. 1003(b)(4).

 

3 In addition, Appellant signed a stipulation of fact stating he used marijuana “around 

April 2018” and nine separate times in May 2018. In addition, on or about May 2018 

while on leave in Louisiana, Appellant “smoked 12 full blunts.” 

4 CAAF further reiterated this point when it stated: “We specifically note that this 

holding does not call into question our decisions that permit a CCA to narrow the scope 

of language in a specification to affirm only so much as is correct in law and fact . . . .

Where the CCA narrows the charging language rather than broadening it, such a 

change does not run afoul of the due process concerns implicated here.” English, 2019 

CAAF LEXIS 662 at *11, n.5.
United States v. Taylor, No. ACM S32574

4

Proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. 

App. 2004) (citation omitted). “Failure to timely comment on matters in the 

SJAR, or matters attached to the recommendation, forfeits any later claim of 

error in the absence of plain error.” United States v. LeBlanc, 74 M.J. 650, 660 

(A.F. Ct. Crim. App. 2015) (en banc) (citing R.C.M. 1106(f)(6); United States v. 

Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analysis, an appellant must show “(1) there was an error; (2) [the error] was plain or 

obvious; and (3) the error materially prejudiced a substantial right.” Id. (quoting Scalo, 60 M.J. at 436). The threshold for establishing prejudice from errors 

impacting an appellant’s request for clemency from the convening authority is 

low, even in the context of plain error analysis, but there must be “some ‘colorable showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at 437). 

The error in the maximum punishment was not addressed in the Defense’s 

clemency submission. Therefore, we test for plain error. We find the error obvious based on the law cited above. We also note the military judge correctly 

stated the maximum punishment prior to accepting Appellant’s plea of guilty 

and counsel for both sides concurred in the military judge’s statement.

Despite the obvious error, Appellant has not attempted to make a colorable 

showing of possible prejudice and we find none. See Scalo, 60 M.J. at 436–37.

The staff judge advocate advised the convening authority of his authority to 

“disapprove, commute, or suspend in whole or in part the confinement and reduction in rank”, and the convening authority chose not to use his authority. 

The missing reduction to E-1 language in the recitation of the maximum punishment is an omission. Under the facts of this case, we are confident that stating the proper maximum punishment would not have led to a more favorable 

recommendation nor clemency by the convening authority. See United States 

v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).

III. CONCLUSION

Specification 1 of Charge I is amended by striking the number “1” from the 

number “31”.

5 The approved findings, as modified, and sentence are correct in 

law and fact, and no error materially prejudicial to Appellant’s substantial 

rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) 

(2016). 

 

5 The specification should read “In that AIRMAN FIRST CLASS LANDON M. TAYLOR, United States Air Force, 30th Logistics Readiness Squadron, Vandenberg Air 

Force Base, California, did, on divers occasions within the continental United States, 

between on or about 1 December 2017 and on or about 3 September 2018, wrongfully 

use marijuana.” We direct a new court martial order reflecting our decision.
United States v. Taylor, No. ACM S32574

5

Accordingly, the findings as modified and sentence are AFFIRMED.

FOR THE COURT

AARON L. JONES

Deputy Clerk of the Court