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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 35,469

 5 FERNANDO MARIANO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Robert A. Aragon, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE, Judge.

18   {1}    Defendant Fernando Mariano appeals the district court’s determination at

19 sentencing that he committed a serious violent offense for purposes of good-time
 1 credit under the Earned Meritorious Deductions Act (EMDA), NMSA 1978, Section

 2 33-2-34 (2015). We previously issued a notice of proposed summary disposition in

 3 which we proposed to affirm. Defendant has filed a memorandum in opposition. After

 4 due consideration, we are unpersuaded. We therefore affirm.

 5   {2}   The pertinent background information was set forth in the notice of proposed

 6 summary disposition. We will avoid undue repetition here and focus instead on the

 7 content of the memorandum in opposition.

 8   {3}   In the memorandum in opposition, Defendant reiterates his position that the

 9 district court abused its discretion in finding that Defendant committed a serious

10 violent offense under the EMDA. [MIO 2] Defendant now argues that the district

11 court did so because its “conclusion rested upon the resulting harm and not upon the

12 nature of the offense or [Defendant’s] conduct.” [MIO 5] Contrary to Defendant’s

13 assertion, however, the district court found that “[D]efendant acted in a physically

14 violent manner” and “with an intent to do serious harm or with recklessness in the face

15 of knowledge that his actions were reasonably likely to cause serious harm.” [RP 282]

16 In our calendar notice, we proposed to hold that these two findings were supported by

17 substantial evidence below. [CN 3-4] Defendant does not challenge this proposed

18 conclusion in the memorandum in opposition, [MIO 1-5] and we therefore adopt it.

19   {4}   Accordingly, for the reasons stated above and in the notice of proposed

20 summary disposition, we affirm.

                                              2
1   {5}   IT IS SO ORDERED.


2                               __________________________________
3                               J. MILES HANISEE, Judge

4 WE CONCUR:


5 _________________________________
6 LINDA M. VANZI, Chief Judge


7 _________________________________
8 MICHAEL E. VIGIL, Judge




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