CAAF has decided United States v. Campbell, __ M.J. ___ (C.A.A.F. 2009).
We granted review of three issues raised by the decision of
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA), as follows:
I. WHETHER THE LOWER COURT ERRED IN REASSESSING
APPELLANT’S SENTENCE, AS (1) ITS REASSESSMENT
CALCULUS WAS BASED UPON AN ERRONEOUS
UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED;
(2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER
A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING
SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS
AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED
TO NOT REDUCE APPELLANT’S SENTENCE WAS FAULTY.
II. WHETHER THE LOWER COURT ERRED IN FINDING THAT
POSSESSION OF THE SAME IMAGES OF CHILD
PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS
SEPARATE CRIMES UNDER 18 U.S.C. § 2252A.
III. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT
THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT
“FACIALLY DUPLICATIVE.”
We hold that Appellant’s unconditional guilty plea waived
Issue II on appeal, and that the specifications were not
“facially duplicative” under Issue III. However, we hold that
the CCA erred in part on Issue I and remand for sentence
reassessment.