Makhi Brockenborough v. United States

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.