Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1988)

MEMORANDUM^** 

David Jay Sterling appeals the denial by the district court of his Fed. R. Crim. P. 35(b) motion for a reduction of sentence following his conviction on four counts of armed bank robbery and one count of using a firearm to commit a felony. Sterling contends that the district court abused or abdicated its discretion by refusing to consider the adverse impact of administrative segregation on his sentence and the disproportionately longer sentence imposed on Sterling as compared to his codefendant and individuals convicted of similar offenses in other jurisdictions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS

On October 20, 1986, Sterling entered guilty pleas to one count of using a firearm to commit a felony in violation of 18 U.S.C. § 924(c) and four counts of bank robbery with assault by use of a dangerous weapon in violation of 18 U.S.C. § 2113(d). Sterling was given the maximum sentence of 25 years on each of the bank robbery counts and the maximum sentence of 5 years on the firearm count with the sentences to be served consecutively. Sterling appealed his sentence and we affirmed by memorandum disposition dated March 24, 1988.

Subsequent to our affirmation of his sentence, Sterling filed a timely motion to reduce sentence on November 18, 1988. On December 19, 1988, the district court denied Sterling's motion in open court following a hearing on the issue. Sterling timely appeals.¹ 

ANALYSIS

We review a denial of a Rule 35(b) motion to reduce sentence for abuse of discretion. United States v. Thayer, 857 F.2d 1358, 1359-60 (9th Cir. 1988); United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). "In determining whether a decision-maker abused his discretion, the reviewing 'court must consider whether the decision [to deny the motion] was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Ruffen, 780 F.2d at 1495 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)).

Sterling first contends that the trial court abused its discretion by refusing to consider the onerous impact of administrative segregation upon his sentence.²  This contention is without merit.

It is clear that a district "court has no jurisdiction to select the place where the sentence will be served. Authority to determine place of confinement resides in the executive branch of government, 18 U.S.C. § 4082(a), and is delegated to the Bureau of Prisons." United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984), cert. denied 469 U.S. 1211 (1985). The only way a district court judge can guarantee that a defendant will be placed in a mental health care facility is pursuant to 18 U.S.C. § 4244, which requires the "court to find both that a defendant suffers from a mental disease or defect and that the defendant should be committed to a suitable facility in lieu of imprisonment." United States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990) (emphasis in original.) A mere recommendation by the sentencing judge that a defendant receive mental health care during his or her term of incarceration does not require that the defendant be placed in a facility which can provide such treatment. Id.

In this case, the district court judge stated during sentencing that "the Court recommends that the defendant be designated to an institution where he may receive mental health treatment." The sentencing judge did not make the specific findings required for incarceration pursuant to the terms of 18 U.S.C. § 4244. Without such findings, the court could not require the executive branch to place Sterling in a facility where he would receive mental health counseling and treatment. See Buker, 902 F.2d at 770. Because the executive branch has exclusive authority over the placement of those persons ordered confined within the federal system, the district court did not abuse or abdicate its authority by refusing to consider Sterling's confinement in an administrative segregation unit when denying his motion for reduction of sentence.

Sterling also contends that the district court abused or abdicated its discretion by refusing to consider his uncontroverted statements that his sentence was disproportionate to the sentence of his codefendant and the average sentences imposed on other defendants convicted of similar offenses in the District Court of Arizona and other jurisdictions. These arguments also are without merit.

a. Disparity Between Sterling's Sentence and That of His Codefendant

In Sterling's direct appeal, we upheld his sentence in the face of his challenge that it was disproportionate to that of his codefendant. United States v. Sterling, Nos. 87-1035 through 87-1038, unpublished memorandum disposition at 7-8 (9th Cir. Mar. 24, 1988). We stated that the district court had properly exercised its discretion in imposing the disparate sentences as " [t]here are more than ample reasons in the record for the disparity [in sentences]. The most important of these is the number and seriousness of Sterling's prior convictions." Id. Sterling's present argument that his sentence is impermissibly disproportionate to that of his codefendant is foreclosed by our decision in his previous appeal.

b. Disproportionality in Sterling's Sentence When Compared to Sentences Imposed on Other Defendants in This and Other Jurisdictions

In his Rule 35(b) motion for reduction in sentence, Sterling presented uncontroverted evidence that the sentence imposed, while clearly within the bounds of the legally allowable term, is greater than that normally imposed on defendants convicted of these offenses in the District of Arizona and is also greater than the sentence that would have been imposed under the guidelines suggested by the Sentencing Reform Act of 1984 and the Sentencing Act of 1987.

Proportionality of a criminal sentence to the crime for which the person is convicted is a basic principle of criminal law.

[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem v. Helm, 463 U.S. 277, 292 (1983). The record discloses that the district court did in fact consider these factors carefully in the course of denying the defendant's motion to reduce sentence. The district court stated that it "had a substantial awareness of this particular defendant, [and] had concluded in the imposition of sentence that he should not be treated the way as any other defendant would be by averages." The sentence imposed was "simply a statement by [the] ... court that [Sterling] was a dangerous individual who should be incarcerated for a long period of time. And that's ... what the court intended to do and did."

Given these explicit findings, the district court did not abuse its discretion by refusing to grant the defendant's motion to reduce sentence. The district court clearly considered the relevant factors and committed no clear error in judgment.

AFFIRMED.