GOKEY v. STATE (2020)

ORDER OF AFFIRMANCE

Nicholas Michael Gokey appeals from a judgment of conviction entered pursuant to a guilty plea of unlawful transport of a controlled substance. Eleventh Judicial District Court, Mineral County; Jim C. Shirley, Judge.

Gokey claims his prison term of 19 to 48 months constitutes cruel and unusual punishment. Gokey asserts that because of the advances he made while his case was pending, including completion of the first phase of addiction treatment and recovery at Step 1, and because all of his prior history was substance and/or alcohol related, he should have received probation and continued drug treatment.

Regardless of its severity, “[a] sentence 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 the 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 453.321(2)(a), and Gokey does not allege that those statutes are unconstitutional. Further, it is within the district court’s discretion to grant probation. See NRS 176A.100(l)(c). We conclude the sentence imposed is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment. Accordingly, we

ORDER the judgment of conviction AFFIRMED.