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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 33,354

 5 ODEN GUTIERREZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Sandra A. Price, District Judge


 9 Jorge A. Alvarado, Chief Public Defender
10 J.K. Theodosia Johnson, Assistant Appellate Defender
11 Santa Fe, NM

12 for Appellant


13 Gary K. King, Attorney General
14 Sri Mullis, Assistant Attorney General
15 Santa Fe, NM

16 for Appellee


17                      DISPOSITIONAL ORDER OF AFFIRMANCE

18   {1}    This direct appeal having come before the Supreme Court from an Eleventh
 1 Judicial District sentencing, and every member of the Court having studied the briefs,

 2 and being otherwise fully informed on the issues and applicable law; and

 3   {2}   The members of the Court having concurred that there is no reasonable

 4 likelihood that a Decision or Opinion would affect the disposition of this appeal or

 5 advance the law of the State; and

 6   {3}   Acting within this Court’s discretion under Rule 12-405(B)(1) NMRA to

 7 dispose of a case by order, decision, or memorandum opinion rather than formal

 8 opinion;

 9 IT IS THEREFORE ADJUDGED THAT:

10   {4}   Child previously exercised a direct capital appeal to this Court following his

11 original sentencing in this case. This Court issued an opinion, State v. Gutierrez,

12 2011-NMSC-024, 258 P.3d 1024, reversing the sentence and remanding the case to

13 the district court for re-sentencing with instructions that a pre-sentence report be

14 prepared and submitted to the district court prior to re-sentencing. Id. ¶ 67.

15   {5}   On remand, the district court received and reviewed the pre-sentence report, as

16 required by NMSA 1978, Section 31-18-15.3(D) (1993). “To err on the side of

17 caution,” the district court held what it termed an “amenability hearing only as to other

18 counts . . . that [Child] was convicted of other than the [first-degree] murder charge.”


                                               2
 1   {6}   At the end of the hearing, the district court sentenced Child to “life plus

 2 eighteen years” for first-degree murder, aggravated burglary, and armed robbery.

 3   {7}   In this appeal, Child argues that his sentence of “life plus eighteen years

 4 constitutes cruel and unusual punishment” because the sentencing hearing did not take

 5 into account the unique mitigating circumstances of adolescence as required by the

 6 United States Supreme Court, under Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455

 7 (2012).

 8   {8}   In Miller, the United States Supreme Court held that “[a statutory] scheme that

 9 mandates life in prison without possibility of parole for juvenile offenders” violates

10 the Eighth Amendment of the United States Constitution’s prohibition against cruel

11 and unusual punishment. Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2469

12 (2012). A sentencer is required to take into account the unique circumstances of the

13 juvenile offender and the crime when deciding whether to impose a life sentence

14 without the possibility of parole. Id. However, Miller “[does] not foreclose a

15 sentencer’s ability to make that judgement in homicide cases.” Id.

16   {9}   Here, the Child’s sentence is not life without the possibility of parole, but life

17 with the possibility for parole. Consequently, the Child’s argument that his sentence

18 is on par with the sentence in Miller, and thus constitutionally barred, is weaker than


                                               3
 1 it appears on first blush. In addition, the district court acknowledged that the sentence

 2 was not mandatory in this case, but it was “very appropriate . . . and [the district court

 3 saw] no reason to deviate” from the sentence of life imprisonment after hearing the

 4 testimony and taking the circumstances of Child and the crime into account.

 5   {10}   Miller does not stand for the proposition that the Eighth Amendment

 6 categorically bars a sentence of life without parole for juveniles. Miller, ___ U.S. ___,

 7 132 S. Ct. 2455, 2469 (2012). Miller only requires that the sentencer weigh the

 8 circumstances of the crime before sentencing a juvenile to life without the possibility

 9 of parole, instead of imposing a mandatory sentence. Since life with the possibility of

10 parole is a lesser sentence, and the district court considered the unique circumstances

11 of the case, the Child’s sentence does not transgress the constitutional standard.

12   {11}   The Child does not claim that the district court abused its discretion in the

13 manner in which it considered the evidence and its sentencing decisions. The district

14 court took the unique circumstances of the Child and the crime into account before

15 determining the appropriate sentence. Accordingly, we AFFIRM the sentencing.

16   {12}   IT IS SO ORDERED.




                                               4
 1   _____________________________________
 2   PETRA JIMENEZ MAES, Chief Justice




 3   ____________________________________
 4   RICHARD C. BOSSON, Justice




 5   ____________________________________
 6   EDWARD L. CHÁVEZ, Justice




 7   ____________________________________
 8   CHARLES W. DANIELS, Justice




 9   ____________________________________
10   BARBARA J. VIGIL, Justice




       5
