United States v. CAZAREZ

This opinion is subject to administrative correction before final disposition.

Before KIRKBY, GANNON, and BROWN Appellate Military Judges

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UNITED STATES Appellee

v.

Ismael G. CAZAREZ Religious Program Specialist Petty Officer Second Class (E-5), U.S. Navy Appellant

No. 202400356

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Decided: 26 March 2025

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Benjamin B. Garcia (arraignment and trial)

Sentence adjudged 13 June 2024 by a special court-martial tried at Na- val Base Guam, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for 60 days, for- feiture of 2/3 pay per month for two months, and a bad-conduct dis- charge.

For Appellant: Captain Katherine Malcolm, USMC

United States v. Cazarez, NMCCA No. 202400356 Opinion of the Court

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This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2(b).

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PER CURIAM: Appellant was convicted, in accordance with his pleas, of one specification of wrongful use of a controlled substance, and one specification of wrongful manufacture of a controlled substance with the intent to distribute, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. This case was submitted without assignment of error. However, we find the military judge erred when announcing the adjudged forfeiture component of the sen- tence. When partial forfeiture of pay is adjudged, the sentence must state the ex- act dollar amount of the forfeiture. 1 Here, instead of expressing the partial for- feiture in an exact whole-dollar amount, the military judge erroneously an- nounced the forfeiture as “two-thirds pay for two months.” 2 The Entry of Judg- ment reflects similarly flawed language: “Forfeitures 2/3 pay for 2 months.” “The failure of a military judge to account for forfeitures in a dollar amount is a clerical error with ‘no prejudicial impact on the accused,’ and it is easily remedied.” 3 We will apply such a remedy here. At Appellant’s reduced grade of E-1, forfeiture of two-thirds pay per month for a period of two months calculates to $¹,344.80 pay per month for two

United States v. Cazarez, NMCCA No. 202400356 Opinion of the Court

months. 4 Accordingly, the findings and only so much of the sentence as pro- vides for reduction to E-1, forfeiture of $1,344.00 pay per month for two months, confinement for 60 days, and a bad-conduct discharge are affirmed. We issue a corrected Entry of Judgment, in accordance with Rule for Courts- Martial 1111(c)(2). After careful consideration of the record, we have determined that the find- ings and sentence as modified are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. 5 The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

UNITED STATES NMCCA NO. 202400356

v. ENTRY OF Ismael G. CAZAREZ JUDGMENT Religious Program Specialist Petty Officer Second Class (E-5) As Modified on Appeal U.S. Navy Accused 26 March 2025

On 13 June 2024, the Accused was tried at Naval Base Guam, by a special court- martial, consisting of a military judge sitting alone. Military Judge Benjamin B. Gar- cia presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:

Charge: Violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Plea: Guilty. Finding: Guilty.

Specification 1: Wrongful distribution of some amount of psilocybin mushrooms, a Schedule I Controlled substance, at or near Yona, Guam, on divers occasions between about April 2023 and July 2023. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice upon pronouncement of the sentence, to ripen into prejudice upon completion of appellate review and affirmation of findings and sentence.

Specification 2: Wrongful use of some amount of psilocybin mushrooms, a Schedule I Controlled substance, at or

United States v. Cazarez, NMCCA No. 202400356 Modified Entry of Judgment

near Yona, Guam, on divers occasions between about April 2023 and July 2023. Plea: Guilty. Finding: Guilty.

Specification 3: Wrongful manufacture with the intent to distribute some amount of psilocybin mushrooms, a Schedule I Controlled substance, at or near Yona, Guam, on or about 13 October 2023. Plea: Guilty. Finding: Guilty.

SENTENCE

On 13 June 2024, a military judge sentenced Religious Program Specialist Petty Officer Second Class (RP²) Cazarez to the following: Reduction to pay grade E-1. Confinement For Specification 2 of the Charge: confinement for 20 days. For Specification 3 of the Charge: confinement for 60 days. The terms of confinement will run concurrently. Confinement for a total of 60 days. Forfeiture of $1,344.00 pay per month for two months. A bad-conduct discharge. The military judge recommended, and the convening authority approved, suspen- sion of the adjudged bad-conduct discharge for a period of six months. Pursuant to RP2 Cazarez’s request, the convening authority deferred imposition of confinement until 24 June 2024.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

Footnotes

[1] Rule for Courts-Martial [R.C.M.] 1003(b)(2) (“Unless a total forfeiture is ad- judged, a sentence to forfeiture shall state the exact amount in whole dollars to be forfeited each month and the number of months the forfeitures will last.”) (emphasis added).

[2] R. at 139.

[3] United States v. Jewett, No. 200900167, 2009 CCA LEXIS 688, at *2 (N-M. Ct. Crim. App. 24 Sept. 2009) (unpub. op.) (quoting United States v. Gilgallon, 1 C.M.A. 263, 2 C.M.R. 170, 172 (C.M.A. 1952)).

[4] See R.C.M. 1003(b)(2) (maximum forfeiture calculated based on accused’s reduced grade).

[5] Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.