UNITED STATES, Appellee 

v. 

Joshua P. LOVETT, Staff Sergeant 

U.S. Air Force, Appellant 

No. 03-0072 

Crim. App. No. 33947 

United States Court of Appeals for the Armed Forces 

Argued October 19, 2005, and February 7, 2006 

Decided June 6, 2006 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Major Karen L. Hecker (argued); Colonel Carlos 

L. McDade, Major Bryan A. Bonner, Major Terry L. McElyea, Major 

Sandra K. Whittington, Major James M. Winner, and Captain David 

P. Bennett (on brief). 

For Appellee: Major Michelle M. Lindo McCluer (argued); 

Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. 

Spencer, and Major John C. Johnson (on brief). 

Military Judges: Bruce T. Brown and Linda S. Murnane 

This opinion is subject to revision before final publication. 
United States v. Lovett, No. 03-0072/AF 

2

Judge ERDMANN delivered the opinion of the court. 

Staff Sergeant Joshua P. Lovett was charged with possessing 

Percocet, raping a child under the age of twelve, soliciting 

another to commit murder, and soliciting another to plant crack 

cocaine, in violation of Articles 112a, 120, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 920, 934 

(1994), respectively. Lovett entered pleas of not guilty and 

following a general court-martial was found guilty of possessing 

Percocet, raping a child, and the lesser included offense of 

soliciting another to make his wife “disappear or to wrongfully 

prevent her from appearing in a civil or criminal proceeding.” 

He was sentenced to a dishonorable discharge, confinement for 

fifteen years, forfeiture of all pay and allowances, and 

reduction to pay grade E-1. The convening authority approved 

the sentence and, on initial review, the United States Air Force 

Court of Criminal Appeals affirmed the findings and sentence in 

an unpublished decision. United States v. Lovett, No. ACM 

33947, 2002 CCA LEXIS 230, at *31-*32, 2002 WL 31235410, at *11 

(A.F. Ct. Crim. App. Sept. 9, 2002). 

We granted Lovett’s initial petition for review and found a 

fatal variance between the “precise specification” of the 

solicitation charge and “the general findings as returned by the 

members.” United States v. Lovett, 59 M.J. 230, 237 (C.A.A.F. 

2004). We set aside the decision of the Air Force court as to 
United States v. Lovett, No. 03-0072/AF 

3

Charge II (solicitation) and the sentence, and returned the case 

to the Judge Advocate General of the Air Force for remand to the 

lower court, with direction that that court could either 

reassess the sentence or order a sentence rehearing. Id. 

The Air Force court reassessed the sentence and affirmed 

the dishonorable discharge, confinement for fourteen years, 

forfeiture of all pay and allowances, and reduction to E-1. 

United States v. Lovett, No. ACM 33947, 2004 CCA LEXIS 201, at 

*7, 2004 WL 1932870, at *3 (A.F. Ct. Crim. App. Aug. 25, 2004). 

Lovett again petitioned this court for a grant of review and we 

granted two issues.1

 The first issue is whether life without 

eligibility for parole (LWOP) was an authorized punishment for 

rape of a child under twelve years of age after November 18, 

1997. The second issue is whether Lovett was subjected to cruel 

 

1

 We granted review of the following issues on April 15, 2005: 

I. WHETHER THE MILITARY JUDGE ERRED BY 

INSTRUCTING THE PANEL THAT THE MAXIMUM 

SENTENCE WAS LIFE WITHOUT PAROLE WHEN 

THAT PUNISHMENT WAS NOT AN AUTHORIZED 

SENTENCE AS ITS IMPLEMENTATION HAD NOT 

YET BEEN ORDERED BY THE PRESIDENT, OR, 

IN THE ALTERNATIVE, WHERE INSUFFICIENT 

EVIDENCE WAS PRESENTED AT TRIAL TO 

PROVE THAT ANY ALLEGED ACTS OF RAPE HAD 

OCCURRED AFTER 19 NOVEMBER 1997. 

II. WHETHER APPELLANT WAS SUBJECTED TO 

CRUEL AND UNUSUAL PUNISHMENT WHILE IN 

POST-TRIAL CONFINEMENT. 

61 M.J. 146 (C.A.A.F. 2005). 
United States v. Lovett, No. 03-0072/AF 

4

and unusual punishment while in post-trial confinement. After 

oral argument on the second granted issue, we determined that 

“additional briefs from the parties would be helpful with 

respect to whether confinement for life without the possibility 

of parole was a permissible part of the maximum sentence in this 

case.” United States v. Lovett, 62 M.J. 321 (C.A.A.F. 2005). 

We subsequently specified an additional issue.2

We hold that LWOP was an authorized punishment for the 

offense of rape of a child under the age of twelve after 

November 18, 1997. We need not decide whether the Air Force 

Court of Criminal Appeals erred in determining when the sexual 

acts with MM occurred because we conclude that any instructional 

error on LWOP by the military judge was harmless. Finally, we 

hold that Lovett has failed to establish an Eighth Amendment 

“cruel and unusual punishment” claim and therefore we affirm the 

Air Force Court of Criminal Appeals. 

 

2

 We specified the following issue: 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED 

IN FINDING THAT “SOME OF THE APPELLANT’S 

SEXUAL ACTS WITH MM OCCURRED AFTER 18 

NOVEMBER 1997” WHERE THE MEMBERS RENDERED A 

GENERAL VERDICT. See United States v. 

Walters, 58 M.J. 391 (C.A.A.F. 2003). 

62 M.J. 321 (C.A.A.F. 2005). 
United States v. Lovett, No. 03-0072/AF 

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DISCUSSION3

1. Life Without Eligibility for Parole. 

 The first granted issue in this case questions whether LWOP 

was authorized for Lovett’s offense of raping a child under the 

age of twelve. The President signed legislation4 enacting LWOP 

into law on November 18, 1997.5 The President did not, however, 

make conforming amendments to the Manual for Courts-Martial

(MCM) until April 11, 2002.6

 Lovett’s initial claim is that LWOP was not an available 

punishment in trials by courts-martial until April 11, 2002, 

when the President amended the MCM. Because all the “divers 

occasions” charged under Article 120, UCMJ, occurred prior to 

April 11, 2002, Lovett argues that the military judge erred by 

instructing the members that LWOP was an authorized punishment 

in his case. In United States v. Stebbins, 61 M.J. 366, 368 

(C.A.A.F. 2005), we held that LWOP was an authorized punishment 

 

3

 As the underlying facts were fully set forth in United States 

v. Lovett, 59 M.J. 230 (C.A.A.F. 2004), we will not restate them 

here. 

4

 National Defense Authorization Act for Fiscal Year 1998, Pub. 

L. No. 105-85, § 581, 111 Stat. 1629, 1759 (1997) (codified at 

Article 56a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 856a (2000)). 

5

 Signing Statement, 33 Weekly Comp. Pres. Doc. 1861 (Nov. 18, 

1997). 

6

 Exec. Order No. 13,262, 67 Fed. Reg. 18,773, 18,779 (Apr. 11, 

2002). 
United States v. Lovett, No. 03-0072/AF 

6

for rape of a child under twelve years of age committed after 

November 18, 1997, the date upon which the President signed the 

LWOP legislation into law.7

 Therefore LWOP was an authorized 

sentence for the rape of a child after November 18, 1997. 

 Alternatively, Lovett argues that LWOP is not an available 

punishment in his case because the evidence does not prove that 

any single act of alleged rape occurred after November 18, 1997. 

Because the divers occasions alleged in the specification of 

rape encompassed periods of time both before and after that 

date, Lovett claims that at least one of the divers acts must 

have been found to have occurred after November 18, 1997 in 

order to support LWOP as an authorized punishment in his case. 

 The Air Force Court of Criminal Appeals considered this 

issue in its initial review. That court, utilizing its Article 

66(c), UCMJ, 10 U.S.C. § 866(c) (2000), factfinding power 

stated, “Based upon these facts, we find that some of the 

appellant’s sexual acts with MM occurred after 18 November 

1997.” Lovett, 2002 CCA LEXIS 230, at *31, 2002 WL 31235410, at 

*11. The general verdict of guilt rendered by the court 

members, however, did not reflect any finding by the members 

 

7

 See also United States v. Ronghi, 60 M.J. 83, 86 (C.A.A.F. 

2004) (LWOP authorized punishment for premeditated murder 

committed after November 18, 1997); United States v. Christian, 

63 M.J. __ (C.A.A.F. 2006) (LWOP authorized punishment for 

forcible sodomy of a child under twelve years of age committed 

after November 18, 1997). 
United States v. Lovett, No. 03-0072/AF 

7

that a single act of rape occurred after the effective date of 

LWOP. Thus we specified an issue concerning whether the Air 

Force court could make such a finding in light of United States 

v. Walters, 58 M.J. 391 (C.A.A.F. 2003). 

 Having considered that specified issue, we conclude that we 

need not determine whether the Air Force court erred by making 

this factual determination.8

 Even if we were to conclude that 

the lower court erred and that LWOP was not an available 

punishment under the facts of this case, any error would be 

harmless. Without LWOP as an available punishment, Lovett would 

have nonetheless faced a maximum punishment that included 

confinement for life. See Manual for Courts-Martial, United 

States pt. IV, para. 45.e(1) (1998 ed.); see also Stebbins, 61 

M.J. at 368 (noting that prior to the adoption of LWOP, 

confinement for life was an authorized punishment for rape). 

Despite this maximum, trial counsel argued for a term of 

confinement of thirty-five years. And, despite the Government’s 

argument for thirty-five years of confinement and the 

 

8

 Although we do not reach the specified issue, we note that the 

Government concedes in its brief: “The United States concedes 

that, given the nature of the evidence and the general verdict 

the members rendered in this pre-Walters case, it is difficult 

to pinpoint with certainty whether the members convicted 

[Lovett] of any rapes which occurred after 18 November 1997, 

when the maximum confinement for a rape charge increased from 

life to life without parole.” 
United States v. Lovett, No. 03-0072/AF 

8

instructions that LWOP was an authorized punishment9, the members 

returned a sentence that included only fifteen years 

confinement. Even assuming LWOP was not an available punishment 

and the military judge’s instruction to the contrary was 

erroneous, we are convinced that the members were unaffected by 

the instruction. Any error with respect to the maximum 

punishment was therefore harmless. 

2. Cruel and Unusual Punishment. 

 “Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishment inflicted.” U.S. 

Const. amend. VIII; see also Article 55, UCMJ, 10 U.S.C. § 855 

(2000). The Supreme Court has stated that punishments violate 

the Eighth Amendment when they “are incompatible with the 

evolving standards of decency that mark the progress of a 

maturing society, or which involve the unnecessary and wanton 

infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03 

(1976) (internal quotation marks and citations omitted). Lovett 

asserts that he should be awarded confinement credit because he 

was forced to endure oppressive, dangerous, and unsanitary 

conditions that violated the Eighth Amendment while he was 

confined at the “old” United States Disciplinary Barracks 

 

9

 Although general instructions on findings by exceptions and 

substitutions were given in this case, the better practice in 

this situation is for the military judge to clearly instruct the 

members as to the scope of the pertinent dates and their options 

or require appropriate special findings. 
United States v. Lovett, No. 03-0072/AF 

9

(USDB)10 between July 23, 1999 and September 30, 2002. We 

conclude that even if the facts as asserted by Lovett are true, 

he has failed to meet his burden of establishing grounds for 

relief. 

 We have no findings of fact with respect to this issue. 

Lovett’s claim of cruel and unusual punishment arose post-trial 

and is necessarily supported by extra-record matter. We have 

granted Lovett’s motions to submit a number of documents 

relating to the conditions of his post-trial confinement at the 

old USDB: (1) an undated declaration by Lovett; (2) a 

declaration by Lovett dated February 22, 2005; (3) an American 

Correctional Association Visiting Committee Report for the USDB 

dated December 9, 1999; and (4) two stipulations of expected 

testimony from a separate judicial proceeding litigating an 

issue similar to this one. 

 Lovett’s declarations assert that he was exposed to the 

following conditions during his confinement at the old USDB: 

1. a cell that was only four feet wide, 

twelve feet long, and seven and one-half 

feet high; 

2. inadequate ventilation during periods of 

extreme temperatures; 

3. falling pieces of walls and ceilings 

that would strike Lovett; 

 

10 In 1994, the Secretary of the Army decided to construct a new 

U.S. Disciplinary Barracks (USDB). Construction commenced in 

the summer of 1998. Lovett was apparently transferred to the 

new facility on or about September 30, 2002. 
United States v. Lovett, No. 03-0072/AF 

10

4. vermin in the dining facility; 

5. sewage backed up in the serving and 

eating areas of the dining facility 

during heavy rains; 

6. lead-based paint on the walls and 

ceilings of Lovett’s cell; 

7. asbestos coating on the pipes in the dry 

cleaning facility where Lovett worked; 

8. dry cleaning solvent leaking from the 

machines in the dry cleaning facility 

creating a risk of electrocution and 

exposure to fumes from the solvent; 

9. extended periods of lockdown, through no 

fault on Lovett’s part, during which he 

was not permitted to exercise or shower; 

10. meals served during these lockdowns 

included stale foods and milk that was 

beyond its expiration date; and, 

11. high iron and lead content from the 

faucet providing the only drinking water 

available in the cell. 

Lovett’s declarations also assert that he made a number of 

complaints about these conditions to various officials or 

agencies including two Commandants of the USDB, the staff judge 

advocate, the chief of staff, the “Department of the Air Force, 

Office of the Assistant Secretary”, and the Air Force Clemency 

and Parole Board. Lovett also asserts that he was told that a 

complaint under Article 138, UCMJ, 10 U.S.C. § 938 (2000), was 

an inappropriate means of addressing “matters relating to . . . 
United States v. Lovett, No. 03-0072/AF 

11

confinement” and therefore he joined a class action law suit 

challenging the conditions at the old USDB. 

 Although the Government has submitted extra-record matters 

contesting the facts within Lovett’s submissions, we do not need 

to remand this case for factfinding if, under the principles in 

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), “we can 

determine that the facts asserted, even if true, would not 

entitle appellant to relief.” United States v. White, 54 M.J. 

469, 471 (C.A.A.F. 2001); see also United States v. Avila, 53 

M.J. 99, 101 n.1 (C.A.A.F. 2000). We determine whether the 

facts alleged constitute cruel and unusual punishment de novo. 

White, 54 M.J. at 471 (citing 2 Steven A. Childress & Martha S. 

Davis, Federal Standards of Review § 7.05 (3d ed. 1999)). 

 As noted above, the Eighth Amendment prohibits two types of 

punishments: (1) those “incompatible with the evolving 

standards of decency that mark the progress of a maturing 

society” or (2) those “which involve the unnecessary and wanton 

infliction of pain.” Estelle, 429 U.S. at 102-03 (internal 

quotation marks and citations omitted). We apply the Supreme 

Court’s interpretation of the Eighth Amendment in the absence of 

any legislative intent to create greater protections in the 

UCMJ. See White, 54 M.J. at 473; Avila, 53 M.J. 101. Because 

Lovett makes no claim that the conditions of his confinement 

violate any greater protections afforded by Article 55, UCMJ, we 
United States v. Lovett, No. 03-0072/AF 

12

need not determine the extent to which that statute may be 

broader than the Eighth Amendment. See United States v. 

Matthews, 16 M.J. 354, 368 (C.M.A. 1983) (noting that Article 

55, UCMJ, intended to provide even greater protections than the 

Eighth Amendment (quoting United States v. Wappler, 2 C.M.A. 

393, 396, 9 C.M.R. 23, 26 (1953))). 

To support his claim that the conditions of his confinement 

violated the Eighth Amendment, Lovett must show: (1) an 

objectively, sufficiently serious act or omission resulting in 

the denial of necessities11; (2) a culpable state of mind on the 

part of prison officials amounting to deliberate indifference to 

Lovett’s health and safety12; and (3) that he “has exhausted the 

prisoner-grievance system . . . and that he has petitioned for 

relief under Article 138, UCMJ, 10 USC § 938 [2000].”13

 Assuming, without deciding, that the conditions of Lovett’s 

confinement were as he has claimed them to be and that he 

exhausted his grievance system remedies, we conclude that he has 

not sustained his burden of establishing deliberate indifference 

to his health and safety. Lovett’s burden to show deliberate 

 

11 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. 

Seiter, 501 U.S. 294, 298 (1991); Rhodes v. Chapman, 452 U.S. 

337, 347 (1981)). 

12 Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03). 

13 United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997) 

(quoting United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 

1993)) (internal quotation marks omitted). 
United States v. Lovett, No. 03-0072/AF 

13

indifference requires him to show that “official[s] [knew] of 

and disregard[ed] an excessive risk to inmate health or safety; 

the official[s] must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm 

exists, and [they] must also draw the inference.” Farmer, 511 

U.S. at 837. We will not speculate about what prison officials 

knew of the specific conditions of Lovett’s confinement or what 

conclusion they might have drawn. The burden to make that 

showing rested upon Lovett. He has only indicated that he made 

unspecified complaints to various officials or agencies and that 

he observed no change or got no response. In the absence of 

evidence showing what the officials knew and that they 

disregarded known risks to inmate safety, Lovett has failed to 

demonstrate that prison officials were deliberately indifferent 

to any conditions that might have violated the Eighth 

Amendment.14 He has, therefore, failed to establish his Eighth 

Amendment claim.15

 

14 In taking Lovett’s assertions as true, we did not consider the 

effect of the American Correctional Association Visiting 

Committee Report for the USDB dated December 9, 1999 (ACA 

Report), submitted by Lovett. While the ACA Report does reflect 

noncompliance with ten of 424 applicable nonmandatory standards, 

it also conveys a generally positive evaluation of the facility 

and specifically reflects: 100% compliance with forty-one 

mandatory standards; an acceptable agency response (building a 

new USDB) to all ten findings of noncompliance with nonmandatory 

standards; that the staff had a “positive attitude and exhibited 

professionalism”; and that “[t]he overall security operation was 

excellent.” Had we taken this submission from Lovett as true, 

as we did the claims in his declarations, the conflict between 
United States v. Lovett, No. 03-0072/AF 

14

DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals on further review is affirmed. 

 

Lovett’s own submissions would further enhance our conclusion 

that he has not met his burden of showing an Eighth Amendment 

violation in this case. 

15 In light of our conclusion that Lovett has failed to establish 

his Eighth Amendment claim, we need not address whether Lovett 

initiated or exhausted the prisoner grievance system and whether 

his failure to file an Article 138, UCMJ, 10 U.S.C. § 938 

(2000), complaint is excused under the circumstances of this 

case.