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April 7, 1994 [NOT FOR PUBLICATION]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]
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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.
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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
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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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