Court-Martial Trial Practice Blog
Your military defense counsel will discuss with you the terms and requirements of a pretrial agreement, should you decide it is in your best interest to get “a deal.”
However, once that deal is signed, the judge accepts it, and it is now on appeal, it is hard to get the appellate court to reduce the sentence that is actually adjudged so long as it is within the specified limits of the deal and does not contain any clause that violates public policy. United States v. Spencer from the Navy-Marine Corps Court of Criminal Appeals is one example of how the appeals court looks at the sentence appropriateness where there is a pretrial agreement.
The Navy–Marine Corps Court of Criminal Appeals (NMCCA) reviewed LCpl Spencer’s sentence de novo under the pre‑2023 version of Article 66(d)(1), UCMJ. That statute authorizes the service courts to approve only so much of the sentence as they find “correct in law and fact” and, on the whole record, “should be approved.” Congress removed this text when it overhauled military sentencing in the Fiscal Year 2022 NDAA, but the new regime applies only to offenses occurring on or after 27 January 2023, so the legacy standard controlled here.
Applying that standard, the court reiterated several long‑standing principles: (1) sentence appropriateness review is a matter of law that the court exercises independently; (2) the court must give the accused the punishment he deserves to ensure justice; and (3) it must individually assess both the gravity of the offense and the character of the offender. The court possesses wide latitude to mitigate a legally valid sentence, yet it may not dispense pure clemency—an executive, rather than judicial, function. United States v. Lane frames the de novo review mandate; Healy and Snelling stress individualized proportionality; and Nerad distinguishes sentence tailoring from clemency.
Key facts
Spencer pled guilty, under a negotiated plea agreement, to stealing merchandise from a Marine Corps Exchange on four occasions over eight days. After an initial theft with a fellow Marine, he returned three more times—twice on the same day—to take high‑value items ranging from clothing to electronics. He deliberately circumvented store security and kept the goods for personal use. The agreement left the military judge free to adjudge, but not obligated to impose, a bad‑conduct discharge; it also capped confinement. The judge recommended suspending confinement—but not the discharge—in light of Spencer’s post‑offense reform efforts. The convening authority approved the adjudged sentence.
Analysis
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Legal ceiling. The adjudged punishment neither exceeded the presidential maximums under Article 56(a) nor breached the confinement and punitive‑discharge limits the plea agreement imposed. Reviewing courts will not disturb a sentence that remains within both the UCMJ ceiling and the bargained‑for cap.
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Standard‑of‑review discipline. By invoking Lane and its progeny, the panel correctly treated sentence appropriateness as a question of law—distinct from factual or legal sufficiency—and reviewed it without deference to the trial court’s discretion. The judges therefore asked the right question: “Does this appellant deserve this sentence on this record?”
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Individualized proportionality. The panel weighed Spencer’s repetitive, escalating thefts, the deliberate evasion of security, and the significant value of the property against the mitigating evidence of rehabilitation. That balanced assessment comported with the individualized‑justice mandate of Snelling and Healy.
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Clemency vs. justice. Nerad cautions that Article 66 power must operate under an articulable legal standard, not raw equity. The court honored that boundary by declining to grant outright clemency; instead, it verified that the punishment matched the misconduct and the plea‑agreement expectations.
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Plea‑agreement deference. The panel emphasized that Spencer freely negotiated the agreement and reaped its benefits. Echoing NMCCA precedent in Avellaneda, the court prudently refrained from “second‑guessing” the bargained sentence absent legal error or manifest injustice. Findlaw
Conclusion
The NMCCA performed a textbook Article 66 sentence‑appropriateness review: it applied the correct legal standard, conducted a fact‑intensive proportionality analysis, respected the limits of judicial power, and declined to intrude upon the negotiated plea framework. Given Spencer’s serial thefts and the agreement’s caps, the panel reasonably concluded that the approved sentence was lawful, just, and not unduly severe.