Courts of criminal appeals must engage in sentence comparison only in rare instances where sentence appropriateness is determined by reference to disparate sentences in closely related cases.
An appellant convicted of conspiracy and solicitation to commit murder was sentenced to 25 years of confinement, while his civilian co-actor received three years. The appellant argued that his sentence constituted an abuse of discretion because of the significant disparity between his sentence and that of his co-actor. The court held that courts of criminal appeals must engage in sentence comparison only in rare instances where sentence appropriateness is determined by reference to disparate sentences in closely related cases. Because the lower court identified cogent reasons for the disparity, including the different sovereigns, the nature of the pleas, and the different sentencing approaches of military and civilian systems, no abuse of discretion occurred.
At page 296 Reviewing sentence appropriateness under military justice system164 citing cases“the courts of criminal appeals are required to engage in sentence comparison only 'in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.”
- United States v. PERRY, No. 202400482 (N.M.C.C.A. Apr. 24, 2026).publishedStandard of Review and Law As noted above, we review sentence appropriateness de novo. 34 This Court’s “power to review a case for sentence appropriateness . . . includes but is not limited to considerations of uniformity and evenhandednes…
- United States v. KEARNEY, No. 202500063 (N.M.C.C.A. Mar. 26, 2026).publishedEx. 3. 14 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). 15 Article 66(d)(1), UCMJ, 10 U.S.C. § 866 (d)(1) (2018). 16 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). 17 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982…
- United States v. WILSON, No. 202400373 (N.M.C.C.A. Feb. 12, 2026).publishedXV at para. 8(d) at 23. 27 Charge Sheet. 28 United States v. Lane, 54 M.J. 1, 2 (C.A.A.F. 2006). 29 See United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
- United States v. Turtu, No. 40649 (f rev) (A.F.C.C.A. Jan. 14, 2026).unpublishedThis is because our authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhandedness o…
- United States v. Cabrie, No. 40615 (A.F.C.C.A. Dec. 3, 2025).unpublishedOur authority “reflects the unique history and attributes of the military justice system [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 200…
- United States v. Roberts, No. 40608 (A.F.C.C.A. Sept. 30, 2025).unpublishedUnited States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
- United States v. Adams, No. 22018 (A.F.C.C.A. July 29, 2025).unpublishedOur authority “reflects the unique history and attributes of the military justice system” including “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citat…
- United States v. SWISHER, No. 202100311 (N.M.C.C.A. May 29, 2025).published As the CAAF has stated in this case, we are required to begin our analysis with whether Appellant has borne the burden of showing that his case and another case are closely related. 19 The CAAF also stated that the mere fact that the sente…
- United States v. MARRERO, No. 202400167 (N.M.C.C.A. May 19, 2025).publishedThe impact of Appellant’s misconduct was “[h]uge,” as it negatively affected both the operational effectiveness of the ship and the morale of the crew. 12 The ship was “left pier-side in Guam for the last 2 months of deployment when [it] c…
- United States v. Sherman, No. 40486 (A.F.C.C.A. May 12, 2025).unpublishedOur authority “reflects the unique history and attributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 20…
Show 151 more citing cases
- United States v. Jenkins, No. S32765 (A.F.C.C.A. Apr. 7, 2025).unpublishedOur authority “reflects the unique history and attributes of the military justice system” including “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citat…
- United States v. Zackery M. Armsbury, No. 20230534 (A.C.C.A. Apr. 4, 2025).unpublishedApp. 2013) (quoting United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)).
- United States v. TAPER, No. 202400014 (N.M.C.C.A. Feb. 25, 2025).publishedStandard of Review and Law We review sentence appropriateness de novo. 12 This Court may only affirm “the sentence or such part or amount of the sentence as the Court finds correct in law and fact and determines, on the basis of the entire…
- United States v. Benoit, No. 40508 (A.F.C.C.A. Jan. 3, 2025).unpublishedUnited States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
- United States v. Giles, No. 40482 (A.F.C.C.A. Dec. 23, 2024).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Moore, No. 40600 (A.F.C.C.A. Dec. 18, 2024).unpublishedOur authority “reflects the unique history and attributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 20…
- United States v. Scott, No. 40369 (A.F.C.C.A. Nov. 12, 2024).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhandedness of sentencing dec…
- United States v. Dolehanty, No. 40510 (A.F.C.C.A. Nov. 6, 2024).unpublishedOur authority “reflects the unique history and attributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 20…
- <p data-block-key=\68rhd\">U.S. v. HERNANDEZ</p>" (N.M.C.C.A. 2024).publishedStandard of Review and Law We review sentence appropriateness de novo 20 and generally without reference or comparison to sentences in other cases. 21 We will engage in sentence comparison only “in those rare instances in which sentence ap…
- United States v. Conway, No. 40372 (f rev) (A.F.C.C.A. July 17, 2024).unpublishedOur authority “reflects the unique history 13 United States v. Conway, No. ACM 40372 (f rev) and attributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” Unit…
- United States v. Swisher, No. 24-0011/MC (C.A.A.F. July 11, 2024).published Standard of Review “ ‘Our review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage[] of justice or abuse[] of discretion.…
- United States v. Cook, No. 40333 (A.F.C.C.A. July 3, 2024).unpublishedOur authority “reflects the unique history and attributes of the military justice system [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 200…
- United States v. Douglas, No. 40324 (f rev) (A.F.C.C.A. June 27, 2024).unpublishedUnited States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).
- United States v. Arroyo, No. 40321 (f rev) (A.F.C.C.A. June 18, 2024).unpublished Our authority “reflects the unique history and attributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 20…
- United States v. Haynes, No. 40306 (f rev) (A.F.C.C.A. May 31, 2024).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhandedness of sentencing dec…
- United States v. Moore, No. 40423 (A.F.C.C.A. May 8, 2024).unpublishedOur authority “reflects the unique history and at- tributes of the military justice system, [and] includes . . . considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F.…
- United States v. Flores, No. 23-0198/AF (C.A.A.F. Mar. 14, 2024).published Our authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhandedness of sentencing dec…
- United States v. Stanford, No. 40327 (A.F.C.C.A. Feb. 14, 2024).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhand- edness of sentencing d…
- United States v. VAZQUEZ, No. 202200241 (N.M.C.C.A. Feb. 2, 2024).published“Other than to ensure that the appellant’s approved sentence is one that ‘should be approved,’ we generally refrain from second guessing or comparing a sentence that flows from a lawful pretrial agreement or a [convening authority]’s lawfu…
- United States v. Edwards, No. 40349 (A.F.C.C.A. Dec. 11, 2023).unpublishedIn exercising sentence appropriateness review, “[t]he Courts of Criminal Appeals are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to di…
- United States v. ROACHE, No. 202200128 (N.M.C.C.A. Nov. 9, 2023).publishedWe review sentence appropriateness de novo 12 and generally without reference or comparison to sentences in other cases. 13 We will engage in sentence comparison only “in those rare instances in which sentence appropriateness can be fairly…
- United States v. Harden, No. 40329 (A.F.C.C.A. Nov. 8, 2023).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhandedness of sentencing dec…
- United States v. Kroetz, No. 40301, 2023 CCA LEXIS 450 (A.F.C.C.A. Oct. 27, 2023).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Cabuhat, 83 M.J. 755 (A.F.C.C.A. 2023).publishedThe CAAF instructs that: Article 66(d)(1), UCMJ, provides the “[Courts of Criminal Appeals (CCAs)] “broad discretion to determine whether a sentence ‘should be approved,’ a power that has no direct parallel in the federal civilian sector.”…
- United States v. Romero-Alegria, No. 40199 ( f rev) (A.F.C.C.A. Aug. 16, 2023).unpublishedOur sentence appropriateness review includes “considerations of uni- formity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted).
- United States v. Alton, No. 40215 (A.F.C.C.A. Apr. 28, 2023).unpublishedOur sentence appropriateness review includes “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted).
- United States v. Flores, No. 40294 (A.F.C.C.A. Apr. 13, 2023).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhand- edness of sentencing d…
- United States v. Welsh, No. S32719 (f rev) (A.F.C.C.A. Apr. 6, 2023).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Behunin, No. 22-0276/AF (C.A.A.F. Mar. 21, 2023).published Standard of Review “Our review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow question of whether there has been an ‘obvious mis- carriage[] of justice or abuse[] of discretion…
- United States v. Schauer, No. 40203 (A.F.C.C.A. Mar. 9, 2023).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Hernandez, No. 39606 (rem) (A.F.C.C.A. Feb. 28, 2023).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Peterson, No. 40220 (A.F.C.C.A. Feb. 23, 2023).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhand- edness of sentencing d…
- United States v. Leipart, Misc Dkt. No. 2021-03 (A.F.C.C.A. Jan. 26, 2023).unpublishedOur sentence appropriateness review includes “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted).
- United States v. Sanders, No. S32714 (A.F.C.C.A. Nov. 30, 2022).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhand- edness of sentencing d…
- United States v. Tarnowski, No. 40110 (A.F.C.C.A. Nov. 4, 2022).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Salamanca, No. S32695 (A.F.C.C.A. Nov. 4, 2022).unpublishedOur authority to determine sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to considerations of uniformity and evenhanded- ness of sentencing decisions.…
- United States v. Zapata, No. 40048 (A.F.C.C.A. Oct. 14, 2022).unpublishedOur authority to determine sentence appropriateness, “which reflects the unique history and attributes of the military justice system, includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions.”…
- United States v. Carlile, No. 40053 (A.F.C.C.A. Sept. 21, 2022).unpublishedOur authority to review a case for sentence appropriateness “reflects the unique history and attributes of the military justice system, [and] includes but is not limited to, considerations of uniformity and evenhand- edness of sentencing d…
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- United States v. Dickson, No. 20050 (A.F.C.C.A. Feb. 10, 2022).unpublished
- United States v. Smith, No. S32663 (A.F.C.C.A. Jan. 25, 2022).unpublished
- United States v. Caffrey, No. 39879 (f rev) (A.F.C.C.A. Jan. 19, 2022).unpublished
- United States v. Day, No. 39962 (A.F.C.C.A. Jan. 5, 2022).unpublished
- United States v. Cox, No. 40058 (A.F.C.C.A. Jan. 5, 2022).unpublished
- United States v. ZBRANEK, No. 202500202 (N.M.C.C.A. Sept. 25, 2026).published
At page 297 engaging in sentence comparison when there is a closely related case (e.g., a civilian co-actor) with a highly disparate sentence. To the extent that Article…1 citing case
- United States v. Armsbury, No. 25-0233/AR (C.A.A.F. Mar. 24, 2026).publishedBut the CCA alternatively could have reasoned that an experienced servicemember such as SGT JH should be held to a higher standard than a recent enlistee such as Appellee. 5 At bottom, a CCA’s sentence review authority is highly discretion…
v.
Galen E. SOTHEN, Jr., Aviation Ordnanceman First Class, U.S. Navy, Appellant
delivered the opinion of the Court.
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of conspiracy to commit murder, two specifications of solicitation to commit murder, and adultery, in violation of Articles 81 and 134, Uniform Code of Military Justice, 10 USC §§ 881 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to E-l. The convening authority suspended all adjudged forfeitures greater than $600 pay per month for 6 months and waived the automatic forfeiture of pay for 6 months, directing payment of all such monies via allotment to appellant’s wife. The Court of Criminal Appeals affirmed in an unpublished opinion.
On appellant’s petition, we granted review of the following issues:
WHETHER APPELLANT’S APPROVED SENTENCE TO CONFINEMENT CONSTITUTES AN OBVIOUS MISCARRIAGE OF JUSTICE OR AN ABUSE OF DISCRETION BECAUSE HIS SENTENCE OF 25 YEARS WAS MORE THAN EIGHT TIMES GREATER THAN HIS CO-DEFENDANT’S SENTENCE OF 3 YEARS.
WHETHER THE GOVERNMENT FAILED TO MEET ITS BURDEN TO PROVE A RATIONAL BASIS FOR THE HIGHLY DISPARATE SENTENCES GIVEN TO APPELLANT AND HIS CO-DEFENDANT.
WHETHER, IN PERFORMING ITS SENTENCE APPROPRIATENESS ANALYSIS GIVEN TWO “CLOSELY RELATED CASES,” THE COURT OF CRIMINAL APPEALS ERRED IN DISREGARDING THE SENTENCE OF A CIVILIAN CO-DEFENDANT BECAUSE THE MILITARY AND CIVILIAN SYSTEMS HAVE DIFFERING APPROACHES TO SENTENCING PRINCIPLES AND THE ADMINISTRATION OF PUNISHMENT.
For the reasons set forth below, we affirm the decision of the Court of Criminal Appeals.
I. Background
Appellant, who enlisted in the Navy in 1978, was married in 1979 and remained married to his wife Judy during his military service through the events pertinent to this appeal. In 1995, they purchased a house in her hometown of Knoxville, Tennessee. When appellant received orders to the Naval Support Activity, Memphis, his wife and their son remained in Knoxville while he lived approximately 200 miles away in Memphis. Appellant anticipated retiring and returning to Knoxville upon completion of his assignment at Memphis.
In 1996, appellant entered into an intimate relationship with Ms. Marney Steen while in Memphis. As the relationship deepened, appellant and Steen took steps to terminate appellant’s marriage by arranging for the murder of appellant’s wife. Appellant, in Ms. Steen’s presence, asked James Warthen to commit the murder. Warthen declined, but said that he knew of a person, Baxter Holland, who would do so. Warthen arranged for appellant and Steen to meet with Holland, who, unbeknownst to them, was an informant for the Shelby County Police Department. These arrangements resulted in a series of meetings involving appellant, Steen, and Holland, at which Holland wore a hidden recording device. At these meetings, appellant and Steen engaged in various conversations about the proposed murder, which resulted in the arrest of both appellant and[*296] Steen. Steen pled guilty in Tennessee state court proceedings to one count of solicitation to commit murder, which resulted in a sentence to 3 years’ confinement and a $500 fine. As noted above, appellant’s sentence included confinement for 25 years, total forfeitures, reduction to E-l, and a dishonorable discharge.
II. Review of Sentences by the Courts of Criminal Appeals
Article 66(c) of the UCMJ, 10 USC § 866, provides the Courts of Criminal Appeals with broad discretion to determine whether a sentence “should be approved,” a power that has no direct parallel in the federal civilian sector. See United States v. Lacy, 50 MJ 286, 287-88 (1999). The power to review a case for sentence appropriateness, which reflects the unique history and attributes of the military justice system, includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions. See id.; see also United States v. Boone, 49 MJ 187, 191-92 (1998).
The Courts of Criminal Appeals are required to engage in sentence comparison only “in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related eases.” United, States v. Ballard, 20 MJ 282, 283 (CMA 1985)(quoting lower court’s unpublished opinion). An appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant’s case, and that the sentences are “highly disparate.” Lacy, supra at 288. If the appellant meets that burden, or if the court raises the issue on its own motion, the burden shifts to the Government to show a rational basis for the disparity. Id.
Our review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow question of whether there has been an “obvious miscarriage [ ] of justice or abuse [ ] of discretion.” Id., quoting United States v. Dukes, 5 MJ 71, 73 (CMA 1978).
III. Sentence Comparison by the Court of Criminal Appeals
The Court of Criminal Appeals concluded that appellant’s case was “closely related” to that of his civilian co-actor, Ms. Steen. The court also found the respective sentences to be highly disparate. The court concluded, however, that there were “many good and cogent reasons in the record of trial that explain the disparity between the two sentences awarded.” Unpub. op. at 6. The court cited the following reasons: (1) the parties were tried by two different sovereigns; (2) while it is appropriate to consider closely related civilian cases, sentence comparison between civilian and military cases is less persuasive than comparison among courts-martial in light of the differences between civilian and military approaches to sentencing and punishment; (3) appellant was convicted of multiple serious offenses, while his co-actor was convicted only of a single count of solicitation; (4) the charges against appellant were contested, while the conviction of the civilian co-actor was based on a voluntary, negotiated plea of guilty; and (5) the sentence of appellant’s co-actor reflected the fact that she had agreed to assist the prosecution by testifying against appellant.
Appellant contends that the lower court abused its discretion in affirming his sentence without “cogent reasons.” Appellant takes the position that the reasons articulated by the court below do not justify the significant disparity in the sentences, that the court placed too much emphasis on Ms. Steen’s guilty plea, and that the court did not give sufficient weight to her culpability or to appellant’s record of service. The Government, on the other hand, contends that any deficiency in sentence comparison is immaterial because, in the Government’s view, it is not permissible for the Courts of Criminal Appeals to compare military and civilian sentences.
With respect to the Government’s argument, we note that there is nothing in the plain language of Article 66, in its legislative history, or in our case law that would preclude the Courts of Criminal Appeals from[*297] engaging in sentence comparison when there is a closely related case (e.g., a civilian co-actor) with a highly disparate sentence. To the extent that Article 66’s legislative history and much of our ease law discuss sentence uniformity within the military justice system, this simply reflects the fact that most closely related cases involve military relationships. It does not preclude consideration of cases involving military and civilian co-actors. With respect to appellant’s argument, we note that all of the factors cited by appellant involve pertinent considerations on the question of sentence appropriateness, but they do not demonstrate that the decision of the court below constituted an abuse of discretion or an obvious miscarriage of justice. See Lacy, swpra.
The considerations articulated by the court below provide a legally sufficient justification for the disparity between the two sentences. The court properly considered the treatment of appellant’s co-actor under the civilian justice system, and noted a number of variances that could have reasonably accounted for the differential sentences. These factors, specifically enumerated by the court, meet the rational basis standard set forth in Lacy.
IV. Conclusion
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.