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Makhi Brockenborough v. United States

Paid petition · United States Court of Appeals for the Armed Forces, No. 26-0157 · judgment May 4, 2026


Certiorari denied · October 5, 2026
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Congress amended the military’s sentencing review scheme, effective December 2023. Both parties agree Congress intended to replicate the existing federal sentencing review scheme post-United States v. Booker, 543 U.S. 220 (2005). In Gall v. United States, 552 U.S. 38, 51 (2007), this Court held that appellate courts “must give due deference” to a sentencing judge’s “decision” applying the 18 U.S.C. § 3553(a) sentencing factors, and courts of appeal cannot conduct de novo reviews. The military’s mandatory sentencing factors, 10 U.S.C. § 856, are virtually analogous to section 3553(a). Here, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) acknowledged existing federal case law, yet affirmatively declined to consider, let alone provide deference to, the sentencing judge’s decision applying the sentencing factors. The Court of Appeals for the Armed Forces (CAAF) declined review. The question presented is: Whether an appellate court can conduct a de novo sentence review, refusing to consider the sentencing judge’s decision in applying the sentencing factors.

Counsel of record

For petitioner
Colin Patrick Norton
Navy and Marine Corps Appellate Defense Division

For respondent
D. John Sauer
Solicitor General

Case

Subject area
Criminal Procedure (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Order
Order list, October 5, 2026 · Certiorari denied

Proceedings

  1. Oct 05 2026
    Petition DENIED.
  2. Aug 19 2026
    DISTRIBUTED for Conference of 9/28/2026.
  3. Aug 11 2026
    Waiver of right of respondent United States to respond filed.
  4. Jul 30 2026
    Petition for a writ of certiorari filed. (Response due September 2, 2026)