United States v. ZBRANEK

Before de GROOT, MOSLEY and DAVIS Appellate Military Judges _________________________ UNITED STATES Appellee v. Christopher R. ZBRANEK Private First Class (E-2), U.S. Marine Corps Appellant No. 202500202 _________________________ Decided: 25 September 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Todd J. Gaston Sentence adjudged on 22 January 2025 by a general court-martial tried at Marine Corps Base Camp Pendleton, California consisting of a mili- tary judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, forfeiture of all pay and allowances, confinement for 30 months, and a dishonorable discharge. For Appellant: Lieutenant Colonel Timothy G. McCormick, USMC For Appellee: Captain Jacob R. Carmin, USMC 28 September 2026: Administrative Correction to last sentence on page 10.  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court Judge DAVIS delivered the opinion of the Court, in which Senior Judge de GROOT and Judge MOSLEY joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ DAVIS, Judge: Appellant was convicted, consistent with his pleas, of two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ).1 In the sole assignment of error (AOE), Appellant argues that the inclusion in his sentence of a dishonorable discharge was plainly unreasonable. We disagree and affirm. I. BACKGROUND On 16 April 2024, while stationed at Goodfellow Air Force Base, Appellant, who was 19 years old at the time, matched on the Tinder dating application with an individual named “Karina.”2 Unbeknownst to Appellant, Karina was an undercover law enforcement agent.3 Karina invited Appellant to contact her via text message,4 and, shortly after he did so, Karina revealed that she was only 14 years old.5 Karina further indicated that she lived on Goodfellow Air Force Base with her mother, who was an enlisted servicemember.6 On 19 April 2024, Karina and Appellant were engaged in a text conversa- tion when Karina informed Appellant that she had to take a shower.7 Appel- lant proceeded to send Karina a picture of his exposed, erect penis in which the 1 10 U.S.C. § 880. 2 Stip. of Fact, Pros. Ex. 1 at 2. 3 R. at 31. 4 Stip. of Fact, Pros. Ex. 1 at 2. 5 Stip. of Fact, Pros. Ex. 1 at 2. 6 Pros. Ex. 2 at 8. 7 Stip. of Fact, Pros. Ex. 1 at 2. 2  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court trousers of his uniform were visible and pulled down around his boots.8 The picture was captioned “hopefully I get to join your showertime!!”9 Additionally, Appellant sent a video of himself masturbating with the caption, “plz can I?”10 In the stipulation of fact, Appellant admitted, “I attempted to sexually abuse a child in that I fully believed the individual to whom I was intentionally exposing my penis was a 14 almost-15-year-old girl. . . . But for the person to whom I exposed my penis not having actually been a 14-almost-15- year-old girl, which was unbeknownst me, I would have actually committed the offense of sexual abuse of a child.”11 Appellant further admitted to sending Karina numerous text messages containing indecent language including, but not limited to: “You can suck small boobs just as good”; “Im lowkey wondering how that a[**] is looking”; “I’m def- initely going to jerk off while I can”; “Ur a horny lil girl it would seem”; “I want you to sit on my lap rnnn”; “I intend on cumming a ton”; “Ill proly still be tex- ting u while im doing it”; “Cumming is fun”; “You should try it sometime lol”; “id help u step by step if coulddd”; and “Mann I wish I could help you mastur- bate.”12 During the pre-sentencing phase of the trial, Appellant offered evidence in extenuation and mitigation, including the testimony of his mother, a family friend, and an expert in forensic psychology. The expert testified, based upon forensic interviews and testing, that Appellant’s risk of recidivism was low, and he did not pose a risk to society. Appellant’s pleas of guilty were the product of a plea agreement he negoti- ated with the Office of Special Trial Counsel. In exchange for Appellant’s pleas, the parties agreed that Appellant would receive a punitive discharge (either a bad conduct discharge or a dishonorable discharge), reduction to the grade of E-1, total forfeitures, and confinement for 30 months. The nature of the puni- tive discharge was the only discretion provided to the military judge under the terms of the plea agreement. Each specification to which Appellant entered a 8 Stip. of Fact, Pros. Ex. 1 at 2–3. 9 Stip. of Fact, Pros. Ex. 1 at 3. 10 Stip. of Fact, Pros. Ex. 1 at 3. 11 Stip. of Fact, Pros. Ex. 1 at 3. 12 Stip. of Fact, Pros. Ex. 1 at 4. 3  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court plea of guilty is designated as a Category 3 offense13 with a maximum pre- scribed punishment of 15 years confinement, a dishonorable discharge, and forfeiture of all pay and allowances.14 Given that Appellant pleaded guilty to two specifications, the maximum prescribed length of confinement was 30 years. Appellant argues that his case is similar to that of another Marine who received a less severe sentence: No common scheme or design is present here. But, from a review of Marine Corps General and Special Court-Martial Dispositions posted online shows several examples of similar conduct re- solved with a bad conduct discharge. For example, on 27 August 2024, a Private First Class was sentenced to 30 months of con- finement and a bad conduct discharge for, among other charges, attempted sexual abuse of a child. See https://media.de- fense.gov/2024/Nov/13/2003582775/-1/-1/0/8.%20AU- GUST%202024.PDF.15 The link provided states the following information: At a general court-martial at Marine Corps Air Ground Combat Center Twentynine Palms, a military judge convicted Private First Class M. Brockenborough, pursuant to the accused’s pleas, of attempted sexual abuse of a child, attempted extramarital sex- ual conduct, and fleeing apprehension. Consistent with the plea agreement, the military judge sentenced the accused to a bad con- duct discharge, 30 months of confinement, and reduction to E-1. While not specifically articulated in Appellant’s Brief, there are indeed clear similarities between Appellant’s case and the facts from United States v. Brockenborough.16 Private First Class (PFC) Brockenborough, like Appellant, was stationed at Goodfellow Air Force Base at the time of his offenses.17 PFC 13 Manual for Courts-Martial, United States (2024 ed.) [MCM], App. 12C, Offense Category Chart at A12C-5. 14 MCM, App. 12, Maximum Punishment Chart at A12-5. 15 Appellant’s Brief at 10 n.31. 16 2026 CCA LEXIS 21 (N-M. Ct. Crim. App. Jan. 21, 2026) (unpublished), rev. denied, United States v. Brockenborough, __ M.J. __, 2026 CAAF LEXIS 404 (C.A.A.F. May 4, 2026) (mem.). 17 Id. at *2. 4  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court Brockenborough also matched on the Tinder dating application with an under- cover law enforcement agent posing as “Karina.”18 While communicating via text message, Karina informed PFC Brockenborough that she was a 14-year- old girl.19 Undeterred, PFC Brockenborough messaged Karina, “u wanna get f[***]ed tomorrow or not.”20 When Karina brought up the fact that she needed a shower, PFC Brockenborough responded, “u can take a shower after we f[***].”21 PFC Brockenborough further agreed with Karina to meet at a location where PFC Brockenborough intended to have sexual intercourse with her.22 At the agreed upon location, Appellant was confronted by law enforcement and attempted to flee apprehension.23 In accordance with his plea agreement, PFC Brockenborough pleaded guilty to one specification of attempted sexual abuse of a child involving inde- cent communications, one specification of attempted extramarital sexual con- duct, and one specification of fleeing apprehension.24 The maximum sentence authorized, based solely on the specifications to which PFC Brockenborough pleaded guilty, was 17 years confinement, reduction to paygrade E-1, forfeiture of all pay and allowances, and a dishonorable discharge.25 His plea agreement, negotiated with the assistance of counsel, required the military judge to award 30 months confinement, reduction to E-1, and a punitive discharge.26 The mil- itary judge retained the discretion to award either a bad conduct discharge or a dishonorable discharge. As noted in Appellant’s Brief, PFC Brockenborough was awarded a bad-conduct discharge. Additional facts necessary to the resolution of the AOE are included below. 18 Id. 19 Id. 20 Id. at *3. 21 Id. 22 Id. 23 Id. 24 Id. at *1. 25 Id. at *4 n.16. 26 Id. at *4. 5  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court II. DISCUSSION 1. Law Congress amended Article 66, UCMJ, in the National Defense Authoriza- tion Act for Fiscal Year 2022, adjusting the framework with which Courts of Criminal Appeals (CCAs) review sentences.27 In considering a sentence on ap- peal under Article 66, CCAs may evaluate the sentence for offenses occurring on or after 28 December 2023 to determine “whether the sentence is plainly unreasonable.”28 The Manual for Courts-Martial previously included a definition for “plainly unreasonable” in the context of a government appeal of a sentence.29 This def- inition, however, was removed in the 2024 Manual for Courts-Martial.30 Civil- ian courts have clarified that Congress intends there to be a distinction be- tween “unreasonable” and “plainly unreasonable.” Specifically, the word “plainly” is not “surplusage” but was meant to modify “unreasonable,” indicat- ing a more stringent standard.31 As such, determining whether a sentence is “plainly unreasonable” begins with an analysis of whether the sentence was “unreasonable.” “Unreasonable” is defined as “[n]ot guided by reason; irrational or capri- cious.”32 In other words, this means assessing whether the sentence adjudged lacks common sense or a rational legal basis. If this Court determines the sen- tence was not “unreasonable,” then further analysis is unnecessary. Only if the sentence is determined to be unreasonable do we then examine whether it was 27 The Article 66 “should be approved” review authority for consideration of sen- tences was removed for UCMJ offenses committed on or after 28 December 2023. See National Def. Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, §539E, 135 Stat. 1541, 1700–06 (2021). 28 10 U.S.C. § 866(e)(1)(D). 29 Rule for Courts-Martial (R.C.M.) 1117(e), Manual for Courts-Martial, United States (2019 ed.) (“Standard. A sentence is plainly unreasonable if no reasonable sen- tencing authority would adjudge such a sentence in view of the record before the sen- tencing authority at the time the sentence was announced under R.C.M. 1007.”). 30 We note that the Military Justice Review Group reported that “[t]he term ‘plainly unreasonable’ is taken from 18 U.S.C. § 3742 and is intended to provide substantial deference to the trial judge.” Office of the General Counsel, Dep’t of Defense, Report of the Military Justice Review Group Part I: UCMJ Recommendations, at 619 (Dec. 22, 2015). 31 See United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). 32 Unreasonable, Black’s Law Dictionary (11th ed. 2019). 6  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court “plainly” so. Consistent with this Court’s decision in United States v. Brocken- borough,33 as well as the jurisprudence of our superior court and that of federal civilian courts, we define “plain” to mean “clear or obvious,” which is taken from our plain error analysis.34 We will apply this framework to our review of the sentence in this case. 2. Analysis Prior to amendments to Article 66, CCAs were empowered to “affirm only . . . 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 record, should be approved.”35 When doing so, CCAs included considerations of “uniformity” and “evenhandedness” in their analysis of sentence appropriateness to include an assessment, if applicable, of sentences awarded in “closely related” cases.36 In those cases, an appellant carried “the burden of demonstrating that any cited cases are ‘closely related’ to his or her case and the sentences are ‘highly disparate.’ ”37 If the appellant met that burden, then the Government was re- quired to “show that there is a rational basis for the disparity.”38 The power to review “closely related” cases, however, is based in neither statute nor regulation. Rather, it is rooted in caselaw which pre-dates the amendments to Article 66, UCMJ, including the shift from the “should be ap- proved” standard of review to the “plainly unreasonable” standard. As the Court of Appeals for the Armed Forces noted in United States v. Behunin, the “power to review a case for sentence appropriateness . . . includes but is not limited to considerations of uniformity and even-handedness of sentencing de- cisions.”39 33 2026 CCA LEXIS 21. 34 Id.; see also United States v. Cole, 84 M.J. 398, 404 (C.A.A.F. 2024) (citing United States v. Bodoh, 78 M.J. 231, 236 (C.A.A.F. 2019)). 35 Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1) (2019). 36 United States v. Swisher, 85 M.J. 1, 4 (C.A.A.F. 2024) (quoting United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)). 37 United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). 38 Id. 39 Behunin, 83 M.J. 158, 161 (C.A.A.F. 2023) (emphasis added) (quoting Sothen, 54 M.J. at 296); see also United States v. Wacha, 55 M.J. 266, 267 ((C.A.A.F 2001) (“Noth- ing in Lacy or its progeny suggests any limitation on a Court of Criminal Appeals’ discretion to consider and compare other courts-martial sentences when that court is reviewing a case for sentence appropriateness and relative uniformity.”) (emphasis 7  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court As the legal predicates to conduct a closely related analysis—“sentence ap- propriateness” and “should be approved”—have been mostly relegated to the dustbin, there remains an open question as to whether our Court still assesses closely related cases under a plainly unreasonable standard. In the absence of guidance from our superior court, and as neither party has raised this issue for the Court’s consideration, the Court, in the instant case, will assume, without deciding, that closely related cases should still be considered. Closely related cases typically fall into three categories: co-actors, a com- mon or parallel scheme, or some other direct nexus.40 Appellant’s brief does not explicitly argue that his case is closely related to any other case. Instead, Ap- pellant argues that there are examples of “similar conduct” being resolved with a bad conduct discharge.41 Further, Appellant concedes, “No common scheme or design is present here.”42 Despite Appellant’s lukewarm assertion of this argument, we nonetheless endeavor to analyze whether Appellant’s case is closely related and hold that it is not.43 The record does not establish that Appellant and PFC Brockenborough were co-actors, involved in a common or parallel scheme, or had some other direct nexus. While they were both seemingly caught up in the same under- cover operation, there is no evidence that they were acting in concert or had any knowledge of one another. Indeed, Appellant’s and PFC Brockenborough’s pleas had one offense in common, which was generated by the same undercover operation. Their conduct, however, was separate and distinct. Where Appellant sent an indecent photo and video, in addition to communicating indecent lan- guage, PFC Brockenborough only communicated indecent language. PFC Brockenborough also attempted to meet up with “Karina” to engage in sexual added); United States v. Swisher, 85 M.J. 1, 4 (C.A.A.F. 2024) (“CCAs ‘are required to engage in sentence comparison . . . in those rare instances in which sentence appropri- ateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’ ”) (citations omitted) (emphasis added). 40 Behunin, 83 M.J. at 162; see also Lacy, 50 M.J. at 288. 41 Appellant’s Brief at 10 n.31. 42 Appellant’s Brief at 10 n.31. 43 Appellant’s brief, on its own, likely does not raise sufficient facts for this court to conduct a closely related analysis. Because this court previously issued an opinion in United States v. Brockenborough, we can discern additional facts not included in Ap- pellant’s brief. 8  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court intercourse,44 fled apprehension, and engaged in attempted extramarital mis- conduct. Given these disparities, we cannot find that these cases were closely related.45 Finally, even were we to hold that Appellant and PFC Brockenborough’s cases are closely related, Appellant has not met his burden to demonstrate that the sentences were highly disparate. The punishments were identical but for PFC Brockenborough receiving a bad-conduct discharge and Appellant receiv- ing a dishonorable discharge. While the punishments are disparate, they are not highly disparate. We note, “The test in such a case is not limited to a narrow comparison of the relative numerical values of the sentences at issue, but also may include consideration of the disparity in relation to the potential maximum punish- ment.”46 Based upon the specifications to which he entered a plea of guilty, Appellant faced a maximum punishment of 30 years confinement, forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge. In re- lation to this maximum punishment, Appellant’s sentence was favorable. PFC Brockenborough’s punishment was also favorable in relation to the maximum punishment of 17 years confinement, forfeiture of all pay and allowances, re- duction to E-1, and a dishonorable discharge. In circumstances such as these, we conclude that any differences in the nature of the punitive discharge did not produce sentences that were highly disparate. We further find that any disparity has a rational basis, especially given the differences in the charges to which each pleaded guilty and their associated maximum punishments. Appellant pleaded guilty to two specifications of at- tempted sexual abuse of a child, whereas PFC Brockenborough only pleaded guilty to one specification of attempted sexual abuse and collateral misconduct. The additional specification to which Appellant pleaded guilty involved the sending of a nude picture and a video of himself masturbating to someone he believed was a 14-year-old girl. Any such disparity, therefore, can be attributed to the factual distinctions between the two cases. 44 This charge was later withdrawn and dismissed as part of PFC Brockenbor- ough’s plea agreement. Brockenborough, 2026 CCA LEXIS 21 at *3. 45 See Behunin, 83 M.J. at 163 (holding, “[D]espite the fact that they both were charged with identical UCMJ offenses, there was no direct nexus between the actual conduct of Appellant and [another servicemember] . . . Simply stated, Appellant and [the other service member] were independent actors in regard to these crimes.”). 46 Lacy, 50 M.J. at 289. 9  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court Having established that Appellant’s case was neither closely related nor highly disparate, we turn to address whether Appellant’s sentence was plainly unreasonable. Appellant’s contention that the inclusion of a dishonorable dis- charge in his sentence was plainly unreasonable is without merit. When an appellant is represented by counsel and bargains for and receives the benefit of a specific sentence, that is strong evidence that the sentence is not unrea- sonable.47 Here, Appellant was represented by competent counsel, was satis- fied with his defense counsel’s advice concerning the plea agreement, and in- dicated that he understood the implications of his plea agreement, including the sentence provisions. “A dishonorable discharge should be reserved for those who should be sep- arated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a mili- tary nature requiring severe punishment.”48 Appellant’s actions,49 to include indecent communications, and sending photos of his exposed penis and a video of himself masturbating to someone he believed was 14-years-old, clearly falls within the type of misconduct for which a dishonorable discharge may be ad- judged. While Appellant did present evidence in extenuation and mitigation, to include expert testimony that he had a low likelihood of recidivism, Appel- lant’s case in extenuation and mitigation was not so compelling as to make the sentence he received unreasonable—let alone plainly unreasonable. 47 United States v. Avellaneda, 84 M.J. 656, 663 (N-M. Ct. Crim. App. 2024) (“[A]lthough not dispositive, when an accused who is represented by competent counsel bargains for a specific sentence, that is strong evidence that the sentence is not inap- propriately severe and it will likely not be disturbed upon appeal.”). 48 R.C.M. 1003(b)(8)(B). 49 Although referenced in the Government’s Reply Brief, we did not consider evi- dence in aggravation from Prosecution Exhibit 3 For Identification. This exhibit was not admitted by the military judge. 10  United States v. Zbranek, NMCCA No. 202500202 Opinion of the Court III. CONCLUSION Accordingly, after careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law, and no error materially prejudicial to Appellant’s substantial rights occurred. The findings and sentence are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 11