*1 brеach of the implied covenant good faith and fair dealing. failed Having in his proof, reverse Mr. would Powers’ tort judgment for breach of the implied covenant of good faith and fair dealing. MARTINEZ, Appellant,
RAMON v. THE Respondent. NEVADA, STATE OF
No. 29172 CACERAS, Appellant, ARMANDO v. THE Respondent. NEVADA,
No. 29173 ELIERSE, RUIZ, JORGE aka JORGE RAMON aka DIAZ, RAMOR, Appellant, BRAYAN aka WILSON Respondent. Kennedy, Kirk T. for Vegas, Appellants Martinez and Caceras. Pallares, Las Vegas, Aрpellant
Jose C. Elierse. General, Papa, Attorney Frankie Sue Del City; Carson Stewart Bell, Tufteland, L. and James Chief Deputy Clark for Respondent. *2 OPINION Court, Shearing, J.: By Martinez, On June Ramon appellants Armando
Caceras, Elierse and three additional Jorge co-defendants were in with charged, a sixteen-count indictment racketeering, conspir- acy larceny, burglary, grand larceny, to commit possession of possession burglary stolen and tools. property charges These arose from a to steal from conspiracy Vegas tourists and casinos. a accepted plea bargain pursuant to which
Appellаnts pled count each of guilty attempt racketeering, one crime pursuant agreement to NRS and 207.400. The plea provided 193.330 that each defendant the minimum sentence could serve was one to maximum years years. four and the sentence was ten who are August appellants, On Venezuelan citizens in illegal immigrants the United appeared before the The sentenсing. district court for Division of Parole and Proba- but similar separate reports tion submitted for each defendant. The contained minimal reports personal information about each Vegas because the Las appellant, Metropоlitan Police Depart- ment in difficulty obtaining encountered truthful information The court judge about them. conducted three separate at which he sentenced hearings appellant to 48-120 months of incarceration. filed Appellants timely aрpeal.
DISCUSSION that the Appellants argue district court failed to separately consider each personal history defendant’s and degree of culpa- bility. argue that the district court sentenced them as a group, violation of their to individualizеd sentencing. The Amendment Eighth requires that defendants be sentenced individual, individually, taking into account the as well as the *3 Lai, 1434, charged (9th crime. United States v. 944 F.2d 1440 Here, 1991). Cir. the record that reveals the district court con- defendant, ducted separate sentenсing hearing during which it discussed facts unique Furthermore, to each individual. each appellant allegedly in a participatеd conspiracy to commit and pled guilty the same crimes to the same charge; this fact justifies alone the district court’s decision to impose the same sentence on each defendant. Consequently, appellants’ argument that the district сourt denied them individualized sentencing lacks merit. argue also that at their sentencing hearings, the court improperly origin
district considered their national in viola- of their due process rights. tion At the conclusion of Jorge Elierse’s the sentencing hearing, distriсt court stated: something heightens
There’s that the nature anof offense when come from people foreign lands to do offenses in another go land. know if I to a land foreign and get there, there, in trouble that I’m in trouble deeper that I’m in trouble than if I did it in deeper country, because of the governments nature of it. Because look unfavorably on peo- ple coming from other countries to us off in rip our country. they And know that but decided do it anyway. The sentencing judge is accorded wide discretion in imposing a 738
sentence; discretion, absent an abuse of this court will not disturb State, the district court’s determination on Randell аppeal. 109 278, 5, 8, (1993). 846 P.2d 280 Nev. This discretion the enables wide, sentencing judge largely to consider a unlimited variety of crime, that the punishmеnt only information to insure fits not the State, the but also individual defendant. Norwood v. 112 Nev. 277, (1996); P.2d 278 915 Wilson v. 110, (1989). not, however, 583 A judge may trial nationality ethniсity consider a defendant’s in its sentence determination; consideration of these facts violates a defendant’s Borrero-Isaza, to due United States v. process. 887 F.2d 1349, (9th 1989) Tucker, 1352 United (citing Cir. States v. 404 443, Thus, (1972)). U.S. 446-47 the district court here violated rights, decision, due if it based appellants’ process sentencing its status part, upon appellants’ illegal as aliens. cannot, however, determine We from the record whether the actually court its sentencing district based decision on appellants’ nationality. The record reveals that substantial factual evidence the district court’s supported impose decision to the maximum Nevertheless, sentence. the Court of the Supreme United States and numerous Circuit Courts of have Appeal emphasized thе only of not but importance doing justice, also insuring justice that the appearance justice.” of United States v. Edwardo- “satisfies] Franco, 1002, (2d 1989) 885 F.2d (citing Cir. Offut v. (1954)). United 348 U.S.
Here, the district court’s
go beyond
remarks
“passing refer-
nationality
ences to the defendant’s
or immigrant status.” United
(2d
Leung,
1994).
fact,
States v.
40 F.3d
Cir.
In
the
court’s
remarks create the
appearance
appellants’
foreign natiоnality
affected
adversely
its sentencing determina-
Thus,
tion.
we conclude that the district court’s conduct did not
such,
“satisfy
appearance
justice”
and as
Edwardo-Franco,
1006;
cannot
sentences
stand.
885 F.2d at
Leung,
This court has held that “if the judge relies uрon prejudicial *4 matters, such reliance constitutes an abuse of discretion that necessitates a resentencing hearing before a different judge.” Castillo v. here, (1994). Because we cannot conclusively determine that the matters, court did not improperly rely prejudicial on namely appellants’ nationality, in his rendering sentencing deci- sion, we must remand matter for resentencing before a judge. different C. concur.
Springer, J., Rose, J., J., Maupin, J. Young, with whom agrees, concurring and dissenting:
I agree thаt rights individualized sentencing were not disagree violated. the comments of this trial judge require remand to determine if any all of the appellants were upon nationality.” sentenced “based their NEVADA, Petitioner, v. THE SIXTH COURT OF THE JUDICIAL DISTRICT HUMBOLDT, IN AND THE COUNTY FOR OF SULLIVAN, and THE HONORABLE JERRY V. Dis- and MASON MILLER Judge, Respondents, trict Party WARREN, Real in Interest. McCormick, Hafen, Michael and Conrad R. Humboldt Deputy Petitioner. Herrera, Winnemucca, Party Ted for Real Interest.