UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist LONGINO S. DAVIS
                          United States Army, Appellant

                                   ARMY 20110576

                       Headquarters, 82d Airborne Division
              Gary Brockington and Tara A. Osborn, Military Judges
              Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain James P. Curtin, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan (on brief).


                                  25 September 2013

                              -----------------------------------
                                SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of one specification of attempted wrongful possession of
marijuana with intent to distribute, one specification of conspiracy, two
specifications of wrongfully introducing marijuana onto an installation with intent to
distribute, and one specification of wrongful possession of marijuana with intent to
distribute, in violation of Articles 80, 81, 112a, Uniform Code of Military Justice.
10 U.S.C. 880, 881, 112a (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to reduction to the grade of E -1, confinement for fifteen months, and a
bad-conduct discharge. The convening authority approved the findings and the
sentence.
DAVIS—ARMY 20110576

       This case is before this court for review under Article 66, UCMJ. Only one of
the issues briefed by appellant warrants discussion and relief. * We agree with
appellant that the evidence supporting his conviction for Specification 2 of Charge
III (appellant’s second conviction for wrongful introduction of marijuana with intent
to distribute) is factually insufficient. However, we affirm the lesser -included
offense (LIO) of attempted wrongful introduction of marijuana with intent to
distribute. See UCMJ arts. 59(b), 79.

       Appellant conspired with Private (PVT) Zavalagamez to obtain marijuana in
California and introduce it onto Fort Bragg, North Carolina. While on leave in
California, PVT Zavalagamez mailed vacuum-sealed marijuana to Specialist (SPC)
Wilson, who lived on Fort Bragg. Private Zavalagamez then traveled back from
California to Fort Bragg. Several days later, appellant and PVT Zavalagamez picked
up the marijuana at SPC Wilson’s on-post quarters. Private Zavalagamez later gave
the marijuana to appellant to distribute.

       Later that month, appellant and PVT Zavalagamez arranged for another
package to be mailed to SPC Wilson’s quarters. The police intercepted this package.
Law enforcement personnel then set up a controlled delivery and arrested SPC
Wilson when he accepted that second package. The police subsequently arrested
appellant and PVT Zavalagamez after the two arrived at SPC Wilson’s quarters to
retrieve the second package.

        The government’s evidence consisted of testimony from PVT Zavalagamez ,
SPC Wilson, and Mr. R., an expert forensic drug chemist. Private Zavalagamez
testified that he never saw the second package. Specialist Wilson testified that he
saw the second package, but not its contents. Only the forensic chemist testified
about the contents of the second package. However, the military judge sustained
appellant’s objection to Prosecution Exhibit 5 (a chain of custody document for the
second box) and Prosecution Ex hibit 7 (the second box containing marijuana).

      The evidence is clear that appellant and PVT Zavalagamez paid $4,000 in
exchange for a second shipment of marijuana. The two also arranged to have that
second package sent to SPC Wilson’s quarters on Fort Bragg and went there once
they believed that the second package had arrived. They intended to distribute the

*
  Among the issues personally raised by appellant , pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), is a challenge to the sufficiency of the
evidence in his case. To the extent that this Grostefon issue overlaps with appellate
counsel’s assignments of error, it is addressed and resolved by this court’s decision.
We have considered appellant’s other personal submissions and conclude that they
lack merit.




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DAVIS—ARMY 20110576

purported marijuana in the second package. As appellant notes, however, the
government never called a law enforcement agent to testify about the chain of
custody or contents of the second package before it reached the government’s expert .
Put another way, it is clear that appellant arranged to introduce a second package
containing marijuana onto Fort Bragg, but the government could not link the box
that arrived at SPC Wilson’s quarters with the box (and its contents) that the
government expert examined.

       Accordingly, we hold there is reasonable doubt regarding appellant’s guilt of
Specification 2 of Charge III. As a remedy, appellant urges us to order a sentencing
rehearing. The government, on the other hand, asks us to reassess and affirm the
sentence. Both positions overlook our authority to affirm a LIO of the charged
offense. UCMJ art. 59(b). The statute criminalizing LIOs expressly includes
attempts as a type of LIO. UCMJ art. 79. Despite finding reasonable doubt
regarding the chain of custody of the second box to the lab and also the contents of
that box as determined by testing, we are convinced beyond a reasonable doubt that
appellant attempted to wrongfully introduce some amount of marijuana onto Fort
Bragg with intent to distribute that marijuana. We therefore affirm the LIO of
attempt.

       In light of our decision to affirm a LIO, we must consider whether sentence
reassessment without a rehearing is possible, and, if so, whether the sentence must
be reduced. United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States
v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring). In this case, we
can be “reasonably certain as to the severity of the sentence that would have resulted
in the absence of the error,” Sales, 22 M.J. at 307 n. 3, and, therefore, we will
reassess the sentence at our level.

       First, and most importantly, we note that the penalty landscape has not
changed, as the maximum punishment remains unchanged. Additionally, appellant
was sentenced by a military judge, and “as a matter of logic, judges of the Courts of
Criminal Appeals are more likely to be certain of what a military judge alone would
have done than what a panel of members would have done.” Moffeit, 63 M.J. at 43
(Baker, J., concurring). Lastly, we are confident that we have the experience and
familiarity with the remaining offenses to reliably determine the sentence that would
have been imposed by the military judge. Id.

                                   CONCLUSION

       On consideration of the entire record, includin g the matters personally
submitted by appellant pursuant to Grostefon, we affirm only so much of the finding
of guilty of Specification 2 of Charge III as provides that appellant, “did, at or near
Fort Bragg, North Carolina, on or about 27 September 2010, attempt to wrongfully
introduce some amount of marijuana onto an installation used by the armed forces or



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DAVIS—ARMY 20110576

under control of the armed forces, to wit: Fort Bragg, North Carolina, with the intent
to distribute the said controlled substances in violation of Article 79, UCMJ.” The
remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the affirmed LIO noted, the entire record, and in accordance with the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion in Moffeit, the approved sentence is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of t hat
portion of the findings set aside by this decision, are ordered restored.


                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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