Rucker (Ian) v. State ( 2013 )

 factor. Mendoza-Lobos v. State, 125 Nev. 634, 643-44, 218 P.3d 501, 507
(2009).
Here, the parties agree and the record substantiates that the
district court failed to articulate findings on the record regarding the
factors enumerated in NRS 193.165(1). Thus, the district court committed
error. The sentence imposed is consistent with the Division of Parole and
Probation's recommendations and it is clear from the record that the
district court heard argument from the parties and considered the facts
and circumstances of the robberies, 1 including that the victims believed
the pellet gun 2 to be real and their lives to be threatened, and that one of
the victims suffered from "sleep issues" as a result of the robbery. In
mitigation, Rucker discussed his battle with alcoholism and mental illness
and their contribution to the crimes, his participation in psychological
counseling and AA meetings, his contrition for his actions, his devotion to
his children, and the fact that no one was injured by his actions.
Additionally, the PSI identified Rucker's prior convictions and Rucker did
not challenge this information. Thus, it is apparent from the record that
each of the factors specified in NRS 193.165(1) were considered by the
court. Rucker did not object below, and it does not appear from the record
that the district court's failure to articulate findings regarding the
enumerated factors had any bearing on its sentencing determination.
Accordingly, we conclude the error did not affect Rucker's substantial
rights and does not warrant reversal. Valdez v. State, 124 Nev. 1172,
'Rucker was charged with two counts of robbery. One count was
dismissed pursuant to the plea negotiations.
2 Therecord reflects the terms "pellet gun" and "BB gun" were used
interchangeably.
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1190, 196 P.3d 465, 477 (2008) (discussing standard for plain-error
review).
Rucker also contends that the district court abused its
discretion at sentencing and that his sentence constitutes cruel and
unusual punishment. We have consistently afforded the district court
wide discretion in its sentencing decision, see, e.g., Houk v. State, 103 Nev.
659, 664, 747 P.2d 1376, 1379 (1987), and will refrain from interfering
with the sentence imposed by the district court Is] o long as the record
does not demonstrate prejudice resulting from consideration of
information or accusations founded on facts supported only by impalpable
or highly suspect evidence," Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
1161 (1976). Regardless of its severity, a sentence that is within the
statutory limits is not 'cruel and unusual punishment unless the statute
fixing punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience." Blume v.
State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v.
State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
that Eighth Amendment does not require strict proportionality between
crime and sentence; it forbids only an extreme sentence that is grossly
disproportionate to the crime).
The sentence imposed is within the parameters provided by
the relevant statutes, see NRS 200.380(2) (category B felony punishable by
a term of 2-15 years); NRS 193.165(2) (deadly weapon enhancement); NRS
193.165(5)(b) (defining "firearm" to include those described in NRS
202.265(6)(c), i.e., "pellet gun"); see also Barnhart v. State, 122 Nev. 301,
130 P.3d 650 (2006) (pellet gun is firearm within meaning of NRS
193.165(5)); NRS 484C.400(1)(c) (felony DUI penalty), and Rucker does not
SUPREME COURT allege that those statutes are unconstitutional. Rucker also does not
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allege that the district court relied on impalpable or highly suspect
evidence. Having considered the sentence and the crimes, we are not
convinced that the sentence imposed is so grossly disproportionate to the
crimes as to constitute cruel and unusual punishment. Accordingly, we
conclude that the district court did not abuse its discretion, and we
ORDER the judgment of conviction AFFIRMED. 3
/Q-5
Douglas
cc: Hon. Lidia Stiglich, District Judge
Washoe County Alternate Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
3 The fast track statement and fast track reply do not comply with
the formatting requirements of NRAP 3C(h)(1) and NRAP 32(a)(4)-(5)
because the text is not double-spaced and the footnotes are not in the same
size font as the text in the body of the briefs. We caution Rucker's counsel
that future failure to comply with the rules of this court may result in the
imposition of sanctions. See NRAP 3C(n).
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