United States v. Ghaffar ( 1994 )

USCA1 Opinion

          April 7, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 93-1711

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    AMIR GHAFFAR,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ___________________

               Loletta L. Darden on brief for appellant.
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               Edwin J.  Gale, United  States Attorney, Gerard  B. Sullivan
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          and  Margaret E.  Curran, Assistant  United States  Attorneys, on
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          brief for appellee.



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                      Per Curiam.    Appellant, Amir Ghaffar, pled guilty
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            to the following  three counts: I) possession with  intent to

            distribute  heroin (21  U.S.C.    841(a)(1));  II)  use of  a

            firearm during a drug trafficking crime (18 U.S.C.   924(c));

            and III)  possession of  a firearm by  a felon (18  U.S.C.   

            922(g)).   The United States District  Court for the District

            of  Rhode  Island sentenced  him to  70  months in  prison on

            counts I and III,  to run concurrently, and  to 60 months  in

            prison on  count II, to  run consecutively with  the sentence

            imposed for counts I and III.  

                 Ghaffar  appeals the  sentence on  the grounds  that the

            five-year  consecutive  sentence  mandated  by  18  U.S.C.   

            924(c)(1)  violates  his  due process  and  Eighth  Amendment

            rights  and that the district court erred in failing to merge

            counts II and III for sentencing purposes.  We affirm.

            1.   Due Process and Eighth Amendment Claims
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                 Ghaffar argues on appeal, for  the first time, that  the

            imposition of a five-year consecutive sentence mandated by 18

            U.S.C.     924(c)(1)  violates  his due  process  rights  and

            constitutes cruel  and unusual  punishment.  Ghaffar  did not

            raise  these  constitutional   issues  below,  despite  ample

            opportunity  to  do  so.     "We  have  repeatedly ruled,  in

            connection  with  sentencing  as  in  other   contexts,  that

            arguments not seasonably addressed to the trial court may not

            be raised for the first time  in an appellate venue."  United
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            States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991).  Therefore,
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            we deem these constitutional claims to have been waived.

                 Even had the claims not been waived, however, they would

            not  entitle Ghaffar  to  relief.      In  United  States  v.
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            Campusano,  947  F.2d  1  (1st  Cir.  1991),  we  upheld  the
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            mandatory sentencing provision of  18 U.S.C.   924(c) against

            claims that  it precluded discretion by  the sentencing court

            in violation of appellant's  due process and Eighth Amendment

            rights. Id. at 3-4.  
                    ___

                 Here, Ghaffar's  argument is that  the statute  violates

            due  process because it  is not the  "least restrictive means

            for accomplishing  Congress' purpose."   There is  no support

            for  the application  of such  a standard  to the  statute in

            question.  Ghaffar also  argues that the consecutive sentence

            requirement   of  section   924(c)(1)  violates   the  Eighth

            Amendment because it  imposes a penalty that is "harsher than

            necessary."    Even  if  we  liberally  interpret this  as  a

            proportionality argument, the mandatory  consecutive sentence

            imposed under section 924(c) does not come close to the level

            of disproportionality that would constitute cruel and unusual

            punishment.  In United  States v. Gilliard, 847 F.2d  21 (1st
                            ______________    ________

            Cir.  1988), cert. denied, 488 U.S. 1033 (1989), we held that
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            a minimum  fifteen-year sentence for possession  of a firearm

            by an  habitual criminal, imposed  under 18 U.S.C.    924(e),

            did  not  constitute  cruel  and  unusual  punishment.    The



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            reasoning of that  opinion has equal,  if not greater,  force

            here.

            2.   Merger of Counts II and III
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                 Ghaffar's second argument on appeal is that the district

            court  erred in sentencing him  under count II  (for using or

            carrying   a  firearm  during  or  in   relation  to  a  drug

            trafficking  offense)  and count  III  (for  possession of  a

            firearm by a convicted felon) because both  counts involved a

            single  act: possession  of a  firearm.  Ghaffar  relies upon

            Ball  v.  United States,  470 U.S.  856 (1985)  (holding that
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            Congress  did not intend  punishments to be  imposed for both

            receipt of a firearm in violation of 18 U.S.C.  922(h)(1) and

            possession  of a  firearm  in  violation  of 18  U.S.C.  App.

             1202(a)(1)).  Ghaffar  raised  this  argument  below.    The

            district court, after briefing by the parties, rejected it in

            a  Memorandum and  Order dated  May 14,  1993.   The district

            court fully  articulated the reasons  that Ghaffar's reliance

            upon Ball v. United States is misplaced.  We reject Ghaffar's
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            argument  for  the  reasons  stated  in  the  district  court

            opinion.

                 The sentence imposed by  the district court is summarily

            affirmed pursuant to Loc. R. 27.1.









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