USCA1 Opinion
September 19, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2192
UNITED STATES,
Appellee,
v.
RICHARD FERGUSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Torruella, Chief Judge.
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Selya and Boudin, Circuit Judges.
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Richard Ferguson on brief pro se.
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Paul M. Gagnon, United States Attorney, and Peter E. Papps, First
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Assistant United States Attorney, On Motion For Summary Disposition
for appellee.
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Per Curiam. In June 1994, appellant Richard Ferguson,
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filed a document in the district court (hereinafter Document
#508) which the court properly treated as a motion, filed
pursuant to 28 U.S.C. 2255, to vacate, set aside or correct
his sentence. In Document #508, Ferguson complained that (1)
there was disparity among the sentences imposed on himself
and his co-defendants, (2) there were miscalculations [not
further specified] by the probation office in calculating his
"volnerability [sic] under the sentencing guidelines, an
error his newly appointed counsel failed to point out or
object to at sentencing," (3) he had received ineffective
assistance of counsel [not further described] from indictment
to sentencing and (4) contrary to a prior district court
conclusion, he had given substantial assistance to the
government since his sentencing. The district court denied
the 2255 motion and Ferguson has appealed.
Ferguson' initial brief on appeal essentially is a
compilation of documents that Ferguson filed in the district
court after that court's ruling on Document #508. To the
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extent that he argues matters not raised in Document #508,
those arguments are not properly before us for review.
We turn to the issues that are raised by Document #508.
On appeal, Ferguson makes no argument regarding his claim of
miscalculation by the probation office in calculating his
"volnerability" under the sentencing guidelines.1
Similarly, Ferguson makes no appellate argument about his
complaint that the district court erred in concluding that he
had not given substantial assistance to the government since
his sentencing. These claims are therefore waived.2 See
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Lareau v. Page, 39 F.3d 384, 390 n.3 (1st Cir. 1994) (noting
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that claims raised below but not addressed in appellate brief
are deemed abandoned).
Ferguson complains that co-defendants who, like himself,
testified against the remainder who went to trial, received
lesser sentences than he received. "[I]n the ordinary case,
'[t]he guidelines do not require the sentencing court to
consider related cases or to justify a sentence in terms of
the punishment meted out to co-defendants.'" United States
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v. Munoz, 36 F.3d 1229, 1239 (1st Cir. 1994), cert. denied,
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115 S. Ct. 1164 (1995) (quoting United States v. Font-
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1. We interpret this claim to relate to Ferguson's assertion
of mental and emotional problems.
2. In any event, Ferguson's claim that his counsel at
sentencing failed to point out his mental or emotional
problems or object to the probation office's characterization
of his mental and emotional health claims is directly refuted
by the written objections filed by Ferguson's counsel to the
presentence report and by the transcript of the sentencing
hearing.
And, the district court's authority to reduce a sentence
due to substantial assistance in the investigation or
prosecution of another person is initiated upon motion by the
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government, see, e.g., 18 U.S.C. 3553(e); Fed. R. Crim. P.
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35(b), - an initiating event that did not occur in this
case.
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Ramirez, 944 F.2d 42, 50 (1st Cir. 1991), cert. denied, 502
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U.S. 1065 (1992)). Moreover, Ferguson has only pointed to
the apparent disparity without suggesting that the testifying
co-defendants were similarly situated as to criminal history
and culpability and ignores the fact that mandatory sentences
forfirearms violationsplayeda rolein determininghis sentence.
Finally, although Ferguson's briefs argue the issue of
ineffective assistance of counsel - a claim that Ferguson did
raise in Document #508 - he has fleshed out this claim with
allegations, for example, an alleged conflict of interest
possessed by counsel Grossberg, that Ferguson did not present
to the district court in Document #508. Thus, we decline to
consider this particular claim.3 See, e.g., United States
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v. Pierce, 60 F.3d 886, 890-91 (1st Cir. 1995) (declining to
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address, in the first instance, a claim that was not
presented to the district court).
Affirmed.
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3. We note, however, that Ferguson's claim that (a) counsel
knowingly misled him into believing that his sentence for
firearms violations would run concurrent with, rather than
consecutive to, his sentence on the other charges and (b) if
he had known that a consecutive sentence was mandatory, he
would not have pled guilty, but would have gone to trial, is
belied by the transcript of the guilty plea in which
Ferguson, himself, recites that the penalties for Count 16
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and Count 20 each are five years in addition to the sentence
imposed on the underlying crimes. Transcript of Oct. 2, 1992
at p. 8.
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