On August 7, 2020, the AFCCA affirmed the conviction of Technical Sergeant Jeremy M. Holder on one specification of wrongfully possessing child pornography in violation of Art. 134, UCMJ. Opinion here.
Appellant pled guilty to one specification of wrongful possession of child pornography in violation of Article 134, UCMJ. He was sentenced to a dishonorable discharge, confinement for five years, and reduction to the grade of E-1. On Appeal, the AFCCA considered whether Appellant was entitled to sentence relief because (1) his sentence was inappropriately severe; and (2) his combat service was omitted from his personal data sheet (“PDS”). In a unanimous opinion, the AFCCA affirmed the sentence.
I.Appellant Failed to Show A Sentencing Disparity
Sentencing disparity is found when Appellant can reference other sentences that are “closely related” to his. The term “closely related” only covers “coactors involved in a common crime . . . or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Since Appellant downloaded and viewed the child pornography from a peer-to-peer software, he compared his case to others with defendants that did the same. However, the Court declined to make a comparison because Appellant did not argue that the cases were in fact “closely related.”
II.Appellant’s Sentence Was Appropriate
Appellant claimed that his sentence was inappropriately severe because the lower court failed to consider the following factors: (1) he had a positive work history, which included combat service; (2) he confessed his crimes to law enforcement; (3) he pled guilty; and (4) he viewed the pornography not for sexual gratification, but to “understand his own child-sex victimization by a male family friend” when he was younger.
However, reviewing the question de novo, the AFCCA rejected his argument, noting several aggravating factors: (1) the child pornography depicted very young children, specifically between the ages of 3 and 10; (2) his misconduct continued at multiple duty stations until he was caught; and (3) he saved the child pornography to his personal devices and viewed them more than once. Accordingly, the military judge correctly followed the law and gave an appropriate sentence.
III.The Error on the PDS Did Not Prejudice Appellant
At trial, Appellant’s PDS failed to list his service in Djibouti and Kenya as “combat service.” However, his counsel did not object. When there is an error in the admission of sentencing evidence, the Court determines prejudice only if the error substantially influenced the sentence.
Although not explicitlylisting Djibouti and Kenya as combat service was an error, Appellant did not show that he would have received a more favorable sentence without this error. (1) The PDS indicated that he was entitled to hardship duty pay, hostile fire pay, and imminent danger pay for Djibouti, which indirectly showed that it was combat service; and (2) Appellant’s medical citation erroneously indicated a forward deployment to “Garissa, Uganda,” that was not included in his enlisted performance report. Given the facts, with no objection from defense counsel to either error, there was no prejudice.
Judge Richardson authored the majority opinion, which was joined by Judges Mink and D. Johnson.
Combat service on a PDS identifies service for which the member was awarded special pay for duty subject to hostile fire or imminent danger.
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