This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 30,836 4 HENRY RIVERA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Denise Barela-Shepherd, District Judge 8 Gary K. King, Attorney General 9 Margaret E. McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 18 BUSTAMANTE, Judge. 192 {1} Defendant appeals from the district court’s amended judgment and sentence, 1 which resentenced Defendant for twenty-four felony crimes after this Court reversed 2 his racketeering conviction in State v. Rivera , 2009-NMCA-132, 147 N.M. 406, 223 3 P.3d 951. On appeal, Defendant contends thatthe district court’s refusal to reduce his 4 prison term by nine years to reflect the reversal of his racketeering conviction 5 constituted vindictiveness in violation of hi s right to due process. Defendant also 6 argues that the prosecutor’s statements th at exaggerated the losses suffered by the 7 victims at resentencing amounted to pros ecutorial misconduct. Lastly, Defendant 8 argues that because his sentence is so grossly disproportionate to his offenses, the 9 punishment the district court imposedis unconstitutionally cruel and unusual. 10 Defendant did not raise any of these ar guments below, and we see no fundamental 11 error. We, therefore, affirm. 12 I. DISCUSSION 13 A. Preservation and Standard of Review 14 {2} As we have indicated, Defendant did not raise the objections in district court 15 that he raises on appeal. “To preserve a question for review it must appear that a 16 ruling or decision by the district court wa s fairly invoked[.]” Rule 12-216(A) NMRA. 17 “While it is true that the issue of whether a sentence was authorized by statute is 18 jurisdictional and may be rais ed for the first time on appeal , . . . this narrow exception 193 to the rules of preservation does not extend to all sentencing issues[.]” State v. 1 Wilson , 2001-NMCA-032, ¶ 31, 130 N.M. 319, 24 P.3d 351 (citation omitted), 2 abrogated on other grounds by State v. Montoya , 2005-NMCA-078, ¶ 11, 137 N.M. 3 713, 114 P.3d 343. There is no dispute that the district court imposed a sentence that 4 was authorized by statute at resentencing. Because the district court’s power to 5 sentence is derived exclusively by statute, and because Defendant does not raise, and 6 there is no basis for, a claim that Defe ndant’s sentence was unauthorized by statute, 7 Defendant’s arguments on appeal that his sentence was illegally imposed are not 8 jurisdictional challenges. See State v. Martinez , 1998-NMSC-023, ¶ 12, 126 N.M. 39, 9 966 P.2d 747 (“A trial court’s power to senten ce is derived exclusively from statute.”). 10

{3} “[A] non-jurisdictional claim not raised in the lower court is not properly 11 reviewable on appeal.” State v. Trujillo , 2002-NMSC-005, ¶ 64, 131 N.M. 709, 42 12 P.3d 814 (holding that the defendant’s clai m that his sentence constituted cruel and 13 unusual punishment in violation of the federal and state constitutions was non14 jurisdictional and had to be preserved for appellate review (internal quotation marks 15 and citation omitted)); see also Wilson , 2001-NMCA-032, ¶¶ 30-33 (holding that the 16 defendant had to preserve the argument thatthe district court improperly relied on her 17 refusal to admit guilt as an aggravating circ umstance to justify increasing in her basic 184 sentence); State v. Jensen , 1998-NMCA-034, ¶ 15, 124 N.M. 726, 955 P.2d 195 1 (holding that the defendant had to the pres erve the claim that at resentencing the 2 district court improperly considered letters , which the defendant considered to be ex 3 parte communications). As our courts have explained, non-jurisdictional sentencing 4 issues often present matters that are unique ly within the discretion of the sentencing 5 court and should be presented to that court for its consid eration and response prior to 6 ruling. See, e.g. , State v. Sosa , 1996-NMSC-057, 122 N.M. 446, 448, 926 P.2d 299, 7 302 (requiring preservation of the defendant ’s claim that the district court’s 8 aggravation of his sentence violated his Fifth Amendment rights and explaining that 9 “[w]e will not reverse the district court on a matter so uniquely within its discretion 10 when the court was not given an opportun ity to consider the issue and make an 11 appropriate response prior to ruling”). 12 {4} Our preservation rules, however, do not “preclude the appellate court from 13 considering . . ., in its discretion, ques tions involving . . . fundamental error.” Jensen , 14 1998-NMCA-034, ¶ 16 (alterations in original ) (internal quotation marks and citations 15 omitted). In response to Defendant’s allegation of prosecutorial misconduct, the State 16 suggests that the fundamental error analys is has no place in sentencing proceedings, 17 as opposed to trials, given the doctrine’ s references to gu ilt, innocence, and 18 convictions. See State v. Barber , 2004-NMSC-019, ¶¶ 14-19, 135 N.M. 621, 92 P.3d 195 633. We are not persuaded. Our courts have applied the doctrine of fundamental 1 error in the context of unpreserved allegations of error at sentencing. Importing 2 similar language we use to review pre-sentencing erro r, our courts apply the 3 fundamental error doctrine for unpreserve d sentencing error “‘only under exceptional 4 circumstances and only to prevent a miscarriage of justice.’” State v. Castillo , 5 2011-NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 760 (stating that the standard for 6 fundamental error when addressing an unpreserved claim that the sentence constituted 7 cruel and unusual punishment) (quoting Barber , 2004-NMSC-019, ¶ 8)); see also 8 Jensen , 1998-NMCA-034, ¶ 16 (using the same standard for an unpreserved cruel9 and-unusual-punishment claim). “The error must shock the conscience or implicate 10 a fundamental unfairness within the system that would undermine judicial integrity 11 if left unchecked.” Castillo , 2011-NMCA-046, ¶ 29 (internal quotation marks and 12 citation omitted); see Trujillo , 2002-NMSC-005, ¶ 65. Based on this standard, we 13 review all of Defendant’s claims for fundamental error. 14 B. Vindictiveness 15 {5} After this Court reversed Defendant’s racketeering charge for insufficient 16 evidence of the existen ce of an enterprise, see Rivera , 2009-NMCA-132, ¶¶ 13-18, the 17 district court did not reduce his prison term by nine years to reflect the reversal, but 18 instead removed that time from the eighty years it originally ordered to be suspended. 196 Defendant argues that by doing so the district court ignored the reversal of his 1 conviction and effectively increased the proportionate amount of time he was required 2 to serve in prison, and ensure d that he would still serve the rest of his life in prison. 3

{6} In these circumstances, Defendant asserts that we should apply the presumption 4 of vindictiveness established by th e United States Supreme Court in North Carolina 5 v. Pearce , 395 U.S. 711 (1969), overruled on other groundsby Alabama v. Smith , 490 6 U.S. 794 (1989), and remand for resentencing be fore a different, unbiased judge. New 7 Mexico courts have recognized that the presumption of vindictiveness established in 8 Pearce was created for criminal defendants who successfully appealed a conviction 9 and then received a more severe sentence. See State v. Saavedra , 108 N.M. 38, 44, 10 766 P.2d 298, 304 (1988)

. In Pearce , the United States Supreme Court stated that 11 “[i]n order to assure the abse nce of . . . a [vindi ctive] motivation, we have concluded 12 that whenever a judge imposes a more se vere sentence upon a defendant after a new 13 trial, the reasons for his doing so must affi rmatively appear [in the record].” 395 U.S. 14 at 726. The New Mexico Supreme Court has stated that Pearce intended to create a 15 safeguard against “personal and institutional biases [that] may lead a judge to impose 16 a harsher sentence in response to the embarra ssment of reversal by an appellate court, 177 the need to vindicate decisions made in the first trial, or other reasons.” Saavedra , 1 108 N.M. at 44, 766 P.2d at 304. 2 {7} The presumption of vindictiveness is not liberally applied, however, and is not 3 conclusive. See id. The presumption “arises when the second sentence is more severe 4 than the first,” see id. , where there is an “actual in crease in the total amount of 5 punishment.” State v. Lopez , 99 N.M. 612, 613, 661 P.2d 890, 891 (Ct. App. 1983). 6 Also, the presumption of vindictiveness doe s not arise where there is “no realistic 7 possibility that the sentencer at the second trial would be motivated by 8 vindictiveness.” Saavedra , 108 N.M. at 44, 766 P.2d at 304. The State may rebut the 9 presumption with a showing “that the increased sentence was justified by evidence 10 available at the second trial but not the first.” Id. 11 {8} We are not persuaded that the facts of the current case trigger the inquiry and 12 concerns addressed in Pearce . Defendant’s second senten ce is not more severe than 13 the first; the district court reduced Defendant’s sentence by nine years to reflect the 14 reversal and took that time from the suspended portion of his sentence. See State v. 15 Duncan , 117 N.M. 407, 409-410, 872 P.2d 380, 382- 83 (Ct. App. 1994) (holding that 16 the Pearce presumption of vindictiveness does not apply when the second sentence 17 is less than the initial sentence), abrogated on other grounds by State v. Brule , 1999- 18 NMSC-026, ¶¶ 3-6, 127 N.M. 368, 981 P.2d 782. The district court did not alter 198 Defendant’s sentence for the remaining convic tions in any way. Defendant refers us 1 to no authority that would support his views that his sentence was increased, that the 2 district court should have reduced his prison term rather than, or in addition to, his 3 suspended sentence, or that the failure to do so could give rise to a presumption of 4 vindictiveness. State v. Lovett , 2012-NMSC-036, ¶ 46, 286 P.3d 265 (“We assume[,] 5 where arguments in briefs are unsupported by cited authority, [that] counsel[,] after 6 diligent search, was unable to find any supporting authority.” (alterations in original) 7 (internal quotation marks and c itation omitted)). Also, we are not persuaded that any 8 authority supports Defendant’s views, nor are we persuaded by the notion that the 9 right to an unbiased sentencer includes the right to a reduced and mitigated sentence. 10 Cf. State v. Cumpton , 2000-NMCA-033, ¶¶ 9-10, 129 N.M. 47, 1 P.3d 429 (stating 11 that the trial court is not required tomitigate a defendant’s basic sentence); cf. State 12 v. Hernandez , 115 N.M. 6, 20, 846 P.2d 312, 326 ( 1993) (“Personal bias cannot be 13 inferred from an adverse ruling or the enforcement of the rules of criminal 14 procedure.”). 15 {9} Furthermore, we are not inclined to extend the case law to include Defendant’s 16 claims, particularly here where the districtcourt stated a neutral, unbiased reason for 17 the sentence it imposed, and Defendant did not raise the matter below. The district 18 court explained that the original judgmen t and sentence was clearly intended to have 199 Defendant serve his convic tions consecutively and chronologically, and its amended 1 judgment and sentence followed the same intent and removed the time for the 2 racketeering conviction from the end of the suspended sentence, because it was 3 Defendant’s last chronological conviction. Under these circumstances, we see “no 4 realistic possibility” of vindictiveness, no reasoned basis to employ the “prophylactic 5 rule designed to guard against judicial vi ndictiveness in the sentencing process,” and 6 no possible chilling effect on the right to appeal that might result from this holding. 7 Saavedra , 108 N.M. at 44, 766 P.2d at 304. 8 {10} Defendant also asserts th at where there are insufficient grounds to apply the 9 Pearce presumption, a defendant may prevail on a vindictiveness claim by showing 10 that the district court was motiv ated by actual vindictiveness. See Saavedra , 108 11 N.M. at 44, 766 P.2d at 304. Defendant c ontends that the district court judge 12 exhibited signs of vindictiveness by mocki ng Defendant’s referen ces to religion and 13 the good works he had done. We are not persuaded by Defendant’s characterization 14 of the judge’s comments. The judgewas acknowledging the evidence Defendant 15 presented indicating that he was positively im pacting people’s lives in prison, thanked 16 him for that, and proceeded to impose what she deemed to be a “just and reasonable 17 sentence.” Defendant gives us no other basis for an actual vindictiveness claim and 18 the record does not provide one either. For the reasons stated above, we are not 1910 persuaded that Defendant has demonstrated error, fundamental or otherwise. C. 1 Prosecutorial Misconduct 2 {11} Defendant contends that the prosecuto r engaged in misc onduct by exaggerating 3 the victims’ losses and implying that a murder-suicide was re lated to Defendant’s 4 actions, a theory that was not presented attrial. Because the comments about which 5 Defendant now complains weremade before a judge duri ng resentencing, not a jury 6 during trial, we do not treat Defendant’s issue as a standard prosecutorial misconduct 7 claim. When matters are tried before a judge, we presume the judge has disregarded 8 improper comments or evidence unless the record clearly indicates otherwise. See 9 State v. Gutierrez , 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751 (“In a bench 10 trial, the trial court is presumed to havedisregarded improper evidence, and erroneous 11 admission of evidence is not reversible erro r unless it appears the trial court must have 12 relied on it in reaching its decision.” (internal quotation marks and citation omitted)). 13 Additionally, we observe that the Rules of Evidence do not apply at sentencing, see 14 Rule 11-1101(D)(3)(c) NMRA, and the trial c ourt has “broad statutory authority to 15 consider at sentencing ‘whatever evidence or statements it deems will aid it in 16 reaching a decision.’” State v. Gardner , 2003-NMCA-107, ¶ 43, 134 N.M. 294, 76 17 P.3d 47 (quoting NMSA 1978, § 31-18-15.1(A) (2009) (“The court shall hold a 18 sentencing hearing to determine if mitigati ng or aggravating circumstances exist and 1911 take whatever evidence or st atements it deems will aid it inreaching a decision to alter 1 a basic sentence.”)). 2 {12} In the current case, the same judge presided over Defendant’s trial and the 3 resentencing hearing and, therefore, was aware of the evidence presented against 4 Defendant. The judge gave no indication thatshe considered any inflated version of 5 the evidence upon resentencing, and accordingl y, did not alter Defendant’s sentence 6 for the crimes for which he was lawfully convicted. As a result, the record does not 7 show that the district court must haveconsidered any improper information. 8 {13} We also observe that De fendant has shown no prejudice. “In the absence of 9 prejudice, there is no reversible error.” State v. Fernandez , 117 N.M. 673, 676, 875 10 P.2d 1104, 1107 (Ct. App. 1994). This is not a case where the prosecutor’s statements 11 affected the amount of restitution Defendant was ordered to pay, for example. Again, 12 Defendant received a lawful sentence that wa s reduced, due to the reversed conviction, 13 and that was not enhanced by any informati on offered by the State. As we indicated 14 above, Defendant was not entitled to a reduced and further mitigated sentence, and he 15 provides no grounds for us to believe that the district court would have further 16 mitigated his sentence without the prosecutor’s statements. Cumpton , 2000-NMCA17 033, ¶¶ 9-10; In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 18 318 (“An assertion of prejudice is not a showing of prejudice.”); State v. Kent , 1912 2006-NMCA-134, ¶ 24, 140 N.M. 606, 145 P.3d 86 (holding that the defendant did 1 not make a prima facie showing of prejudi ce where the arguments failed to establish 2 that the admission of evid ence changed the result). 3 {14} Lastly, we note that given Defendant’ s high level of pleading for a further 4 mitigated sentence, we believe that if th e prosecutor’s comments at resentencing were 5 as impactful as Defendant complains, th en defense counsel would have objected 6 below and challenged the accur acy of the information. See State v. Sosa , 2009- 7 NMSC-056, ¶¶ 18-23, 147 N.M. 351, 223 P. 3d 348 (acknowledging that had the 8 meaning of the prosecutor’s comments beenas egregious as the defense argued on 9 appeal, then defense counsel would have objected at the time they were made or in a 10 motion or the judge would have intervened). In the absence of an objection from 11 Defendant and a developed record, we see no fundamental unfairness or miscarriage 12 of justice. 13 D. Cruel and Unusual Punishment 14 {15} Finally, Defendant contends that his sentence, which heclaims is effectively a 15 life sentence, is so grossly disproportionate to the offenses that it amounts to cruel and 16 unusual punishment. Defendant also suggest s without elaborati on that we should 17 interpret the New Mexico Constitution morebroadly than the Federal Constitution to 18 prohibit his sentence. Because De fendant did not raise this issue at all in district court, 1913 we do not review his state constitutional claim on appeal. See State v. Leyva , 1 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861 (setting forth the revised and 2 relaxed preservation requirements for an interstitial analysis). 3 {16} Defendant asserts that his sentence shoc ks the general conscience and violates 4 principles of fundamental fairness. Defe ndant’s brief in chief does not support this 5 assertion with analysis beyond his reference to Solem v. Helm , 463 U.S. 277 (1983), 6 overruled by Harmelin v. Michigan , 501 U.S. 957, 965 (1991), for the proposition that 7 life imprisonment without the possibility of parole for uttering a check on a 8 nonexistent account is an unconstitutional punishment, disproportionate to the offense. 9 The facts of Solemare materially distinguishable from the current case, however, and 10 this Court has recognized that the c ontinued vitality of the analysis in Solemis 11 questionable. See State v. Rueda , 1999-NMCA-033, ¶ 12, 126 N.M. 738, 975 P.2d 12 351. In Solem , the defendant received a sentence of life imprisonment after he pled 13 guilty of uttering a “no account” check fo r $100, based on enhancements under the 14 applicable habitual offender statute. 463 U.S. at 281-84. In contrast, here Defendant 15 was convicted for twenty-four felony offe nses, which could have resulted in a 117- 16 year sentence. The district court suspende d the majority of Defendant’s sentence and 17 ordered him to serve thirty-seven years inprison, of which he will likely serve about 18 nineteen years, according to the calculations in the brief in chief. The answer brief 1914 points out that on average Defendant will serve about nine-and-a-half months per 1 offense, six of which have a basic sentence of nine year s each and eighteen of which 2 have a basic sentence of three years each. We agree with the State’s observation that 3 any allegedly unusual length of Defendant’s sentence is the result of the number of 4 offenses Defendant committed. 5 {17} “Although the Eighth Amendment prohibits the imposition of a sentence that 6 is grossly disproportionate to the crime fo r which [the] defendant is convicted, the 7 classification of felonies and the length of sentence is purely a matter of legislative 8 prerogative.” State v. Garcia , 100 N.M. 120, 127, 666 P.2d 1267, 1274 (Ct. App. 9 1983). “It is rare that a term of incarcer ation, which has beenauthorized by the 10 Legislature, will be found to be exces sively long or inherently cruel.” Trujillo , 11 2002-NMSC-005, ¶ 66 (internal quotation marks and citation omitted). In State v. 12 Arrington , for example, this Court held that the mandatory prison term for this 13 particular second-felony offender who distributed marijuana could constitute cruel and 14 unusual punishment, where the undisputed ev idence showed that incarceration would 15 be life-threatening to the severely asthmatic defendant because adequate medical care 16 would not be available to her in a correctional facility. See Arrington , 115 N.M. 559, 17 559-61, 855 P.2d 133, 133-35 (Ct. App. 1993). 1815 {18} Neither Defendant’s arguments nor the record give us reason to believe that 1 Defendant’s sentence was disp roportionate to his twenty-four felony offenses or that 2 he has unique circumstances that w ould render his particular sentence 3 unconstitutional. As a result, we are not persuaded th at Defendant has shown a 4 fundamental unfairness to satisfy the fundamental error standard. 5 {19} We observe that for the first time in the reply brief, Defendant compares his 6 sentence to sentences imposed in other cases and contends that we should judge his 7 sentence based on the sentences of other defendants as a part of the proportionality 8 analysis. By engaging in this analysis fo r the first time in the reply brief, Defendant 9 has deprived the State of the opportunity to respond. See State v. Martinez , 2005- 10 NMCA-052, ¶ 7, 137 N.M. 432, 112 P.3d 293 (explaining that we will not reach the 11 defendant’s issue raised for the first time inthe reply brief where it “deprives the State 12 of an effective rebuttal as contemplated by the [briefing] rules” and deprives this 13 Court of the benefit of brie fing). While we acknowledge that the reply brief purports 14 to raise the analysis in response to the St ate’s complaint that Defendant did not apply 15 the law to the facts, we are not persuade d that the State’s accurate observation about 16 the brief in chief permits De fendant to assert new grounds to support his argument that 17 his sentence was cruel and unusual. The concerns articulated in Martinezare uniquely 18 relevant in this case, becausethe applicable standards inthe case law are unclear and 1916 Defendant did not raise the issue below. Th is has deprived the State of any notice of 1 the argument and opportunity to respond and deprives this Court of guidance from any 2 briefing. We point out that this Court has questioned the appropriateness of testing 3 and comparing a defendant’s sentence to se ntences for similar crimes in other cases 4 when addressing a cruel and unusual punishment claim in noncapital cases. See 5 Rueda , 1999-NMCA-033, ¶ 12. We observed that, in Harmelin , a plurality opinion, 6 the United States Supreme Court seemedto overrule its previous opinion in Solem , as 7 explained by the Fifth Circuit: “[o]nly if we infer that the sentence is grossly 8 disproportionate to the offense will we thenconsider the remaining factors of the 9 Solemtest and compare the sentence received to (1) sentences for similar crimes in the 10 same jurisdiction and (2) sentences for th e same crime in other jurisdictions.” Rueda , 11 1999-NMCA-033, ¶ 12 (quoting McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 12 1992) and citing Harmelin , 501 U.S. at 1004-06 (Kennedy, J., plurality opinion)). 13 {20} Defendant does not address the impact of Harmelinon the proportionality 14 analysis set forth in Solem , but argues that we should review the crimes and sentences 15 from other cases to ascertain whether Defendant’s sentence is disproportionate to his 16 offenses as we did in State v. Ira , 2002-NMCA-037, ¶ 18, 132 N.M. 8, 43 P.3d 359. 17 Irais of no aid to Defendant. Irainvolved an adult sentence of 91 1⁄2 years imposed 18 on a fifteen-year-old juvenile defendant and thus invoked con cerns about proper 1917 sentencing of youthful offenders which are si mply not present here. In addition, the 1 ultimate result in Irawas to affirm the sentence inpart because of the repeated 2 character of the defendant’s criminal acts. 3 {21} Here, Defendant’s complaint is basicallyabout the length of his sentence. In 4 light of his numerous convictions based on his acts in defrauding numerous victims, 5 we cannot say that his sentence can be s een as disproportionate or to be outside 6 contemporary standards of elemental decency. Id. Ultimately, Defendant has not 7 demonstrated that this is one of the ex treme and rare cases for which the Eighth 8 Amendment should afford him relief or an even more exceedingly rare case of 9 fundamental error. See Trujillo , 2002-NMSC-005, ¶ 66. 10 II. CONCLUSION 11 {22} For the reasons stated in this Opin ion, we affirm Defendant’s sentence. 12 {23} IT IS SO ORDERED. 13

14 MICHAEL D. BUSTAMANTE, Judge 1518 WE CONCUR: 1

_________________________________ 2 RODERICK T. KENNEDY, Chief Judge 3

_________________________________ 4 MICHAEL E. VIGIL, Judge 5