Below is a brief description of a recent ACCA opinion.
Mikael E. Grullon (“Appellant”) pled guilty to wrongful distribution of Xanax and wrongful possession with the intent to distribute Xanax and was sentenced to a bad-conduct discharge, confinement for 13 months, and reduction to E-1.
In the Court below, the military judge inquired as to whether the distribution specification coupled with the possession with intent to distribute specification created a multiplicity issue. Relying on U.S. v. Savage, 50 M.J. 244 (C.A.A.F. 1999), the military judge dismissed the “with intent to distribute” language from Appellant’s first charge, thereby converting it to simple possession of Xanax. Appellant then stated that he understood all terms of the pretrial agreement and waived all waivable motions.
Whether the charge of wrongful possession with the intent to distribute Xanax was multiplicious with the charge of wrongful distribution of Xanax, and therefore should have been dismissed by the military judge.
In a unanimous opinion, the ACCA found that Appellant expressly waived any multiplicity issue.
The Court relied on U.S. v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), which states that “[w]here an appellant pleads guilty and agrees to waive all waivable motions, multiplicity claims are expressly waived and thereby foreclosed from even plain error review.
Here, after the military judge addressed the multiplicity issue by amending one of Appellant’s charges, Appellant did not object to the terms and agreed to the maximum punishment calculated in light of the amended charge. Moreover, Appellant acknowledged and agreed to the provision in his pretrial agreement waiving all waivable motions.
The ACCA held that Appellant expressly waived any claim of multiplicity, and stated that, under U.S. v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009), “a valid waiver leaves no error for [the Court] to correct on appeal.”
 Judge Brookhart authored the majority opinion, which was joined by Judges Krimbill and Walker