Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Joseph Michael CURTIS, Defendant-Appellant.

No. 90-50150.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 4, 1990* .Decided Dec. 12, 1990.

Before WALLACE, O'SCANNLAIN and RYMER, Circuit Judges.


We must determine whether the district court erred by prescribing a sentence to run consecutive to, rather than concurrent with, any pre-existing state or federal sentences.

* Curtis contends that the district court abused its discretion in prescribing that his sentence for assaulting a federal officer run consecutive to pre-existing sentences, asserting that the reasons expressed for consecutive sentencing had already been captured in Curtis' Bureau of Prisons' administrative penalties and in the sheer length of the sentence, even without its consecutive character.

We disagree. Although the determination of whether to impose a consecutive or a concurrent sentence is within the discretion of the district court, see United States v. Wills, 881 F.2d 823, 826 (1989), there is a presumption favoring consecutive sentencing. See 18 U.S.C. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."). We are not unaware of the circumstances purportedly mitigating against a harsh sentence in this case. Nonetheless, given the prolonged duration of Curtis' holding Mr. Ramos hostage, the acute need of prison authorities to maintain order within prison walls, and Curtis' demonstrated proclivity towards violence, there can be no doubt that the district court did not abuse its discretion in imposing a consecutive sentence.


Curtis also maintains that the cumulative effect of his state sentence for sexual assault and the consecutive sentence for assaulting a federal officer violates the eighth amendment's prohibition against cruel and unusual punishment.

The eighth amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). Ordinarily, a disproportionality claim requires the weighing of three factors: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the same crime in other jurisdictions. See United States v. Yarbrough, 852 F.2d 1522, 1546 (9th Cir.), cert. denied, 488 U.S. 866 (1988). However, in appropriate cases, we need not consider more than the first factor. See id. ("Application of the first factor alone in the present case demonstrates the error of the appellants' [disproportionality] claim."). Here, both offenses are marked by excessive and prolonged terror and violence. "There is a difference in kind and not just degree between this kind of crime and the crime of the defendant in Solem." Id. Accordingly, we reject Curtis' eighth amendment claim.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3