United States v. Cardoza

United States Court of Appeals
For the First Circuit

No. 96-1470

UNITED STATES OF AMERICA,

Appellee,

v.

FREDERICK CARDOZA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge, and

Coffin and Bownes, Senior Circuit Judges.

Jeffrey M. Smith, with whom John M. Moscardelli and Peters, Smith

& Moscardelli were on brief for appellant.

Ralph F. Boyd, Jr., Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Dina Michael Chaitowitz,

Assistant United States Attorney, were on brief for appellee.

October 27, 1997

BOWNES, Senior Circuit Judge. Defendant-Appellant
BOWNES, Senior Circuit Judge.

Frederick Cardoza appeals his convictions and sentence under

the felon-in-possession statute, 18 U.S.C. 922(g)(1) and

the Youth Handgun Safety Act, 18 U.S.C 922(x). His appeal

is primarily based on multiple constitutional arguments,

which shall be addressed in turn. We affirm.

Facts
Facts

We review the facts in the light most favorable to

the verdict. United States v. Wihbey, 75 F.3d 761, 764 (1st

Cir. 1996). In July of 1995, a sixteen-year-old acquaintance

of Cardoza, Myron Ragsdale, asked Cardoza to secure a handgun

for him to purchase. Cardoza found a dealer willing to sell

a nine-millimeter semiautomatic handgun to Ragsdale for

$200.00. On the night of July 14, 1995, Cardoza and Ragsdale

went to Walnut Park in Roxbury, Massachusetts, to make the

gun purchase. Ragsdale paid $200.00 for the handgun and nine

rounds of ammunition. Ragsdale loaded the gun with eight

rounds of ammunition, and Cardoza took possession of the

ninth round.

Sometime after the transaction was completed,

Cardoza and Ragsdale began walking along Humboldt Avenue. As

they walked, Ragsdale had the handgun in his waistband and

Cardoza carried the single round of ammunition in his hand.

By this time it was approximately 2:00 a.m. on the morning of

July 15. They were spotted walking along Humboldt Avenue by

-2-
2

four officers of the Boston Police's Youth Violence Strike

Force who were patrolling the area in an unmarked police car.

One of the officers in the car, Gregory Brown, noticed that

Cardoza and Ragsdale were acting indecisively about whether

to continue walking up Humboldt, or instead cross the street

in front of the police car. Moving slowly, the police car

approached Cardoza and Ragsdale from behind. As the patrol

car approached, Cardoza and Ragsdale crossed Humboldt Avenue

in order to walk up the sidewalk of Ruthven Street, a one-way

thoroughfare that emptied onto Humboldt Avenue. As they

crossed in front of the car, Officer Brown, who was sitting

in the back seat on the driver's side, recognized Cardoza and

directed the driver to make a left turn off Humboldt, and

proceed the wrong way up Ruthven for a short distance.

Officer Brown testified that he wanted to ask Cardoza some

questions concerning a shooting incident that had occurred

some days earlier. The driver took the left turn, and pulled

over to the curb just off Humboldt, facing the wrong way on

Ruthven Street.

Officer Brown, whose window was rolled down, called

out to Cardoza, asking "What's up Freddie? What are you

doing out this time of night?" Cardoza stopped, turned, and

approached the patrol car. Ragsdale continued walking a

short distance. Officer Brown remained in the car conversing

with Cardoza through the open car window. As he talked with

-3-
3

Officer Brown, Cardoza began to gesture with his hand,

exposing the round of ammunition. Seeing the round of

ammunition, Brown exited the patrol car, and began to pat-

frisk Cardoza. At the same time, two other officers exited

the car and approached and pat-frisked Ragsdale, discovering

the handgun loaded with eight rounds of ammunition.

Cardoza was indicted on four counts. Count I

charged Cardoza with being a felon-in-possession of one round

of ammunition, in violation of 18 U.S.C. 922(g)(1). Count

II charged Cardoza under the same statutory provision with

being a felon-in-possession of the semi-automatic firearm,

based on his alleged possession of the weapon for a short

period of time after the transaction. Count III charged

Cardoza with causing the sale, delivery, and transfer of a

handgun to a juvenile in violation of the Youth Handgun

Safety Act, codified at 18 U.S.C. 922(x). Count IV charged

Cardoza with aiding and abetting a juvenile in the possession

of a handgun in violation of the same. A jury returned a

guilty verdict on Counts I, III, and IV, and acquitted on

Count II. Following the jury verdict, but prior to

sentencing, the district court issued a memorandum detailing

its refusal to grant both Cardoza's motion to dismiss and his

motion for judgment of acquittal. United States v. Cardoza,

914 F. Supp. 683 (D. Mass. 1996). The district court

sentenced Cardoza under the Guidelines to 235 months of

-4-
4

imprisonment and five years of supervised release. This

appeal followed.

I.
I.

The Meaning of "Ammunition"
The Meaning of "Ammunition"

Cardoza launches his appeal by arguing that the

single nine millimeter bullet which he was convicted of

possessing is not "ammunition" within the meaning of 18

U.S.C. 922(g). We disagree.

Cardoza was convicted of violating the felon-in-

possession statute, which makes it illegal for a convicted

felon "to possess in or affecting commerce, any firearm or

ammunition . . . ." 18 U.S.C 922(g)(1)(West Supp. 1997).

"Ammunition" is defined as "ammunition or cartridge cases,

primers, bullets, or propellent powder designed for use in

any firearm." 18 U.S.C. 921(a)(17)(A)(West Supp. 1997).

Cardoza suggests first that the statutory definition, by

including the plural words "cases, primers, [and] bullets"

bans only the possession of more than one piece of

ammunition. Second, he suggests that the word "ammunition"

itself always means multiple rounds. Finally, Cardoza argues

that the definition of "ammunition" is sufficiently ambiguous

to require application of the "rule of lenity," United States

v. Lanier, 117 S. Ct. 1219, 1225 (1997), in his favor. The

court below determined that "[n]o amount of wordplay will

contradict the plain meaning of the statute, an honest

-5-
5

reading of which leads to the inexorable conclusion that a

single nine millimeter bullet . . . constitutes ammunition

for the purposes of [ 922 (g)(1)]." Cardoza, 914 F. Supp. at

686-87.

This question is one of statutory construction

which we review de novo. Strickland v. Commissioner, Maine

Dep't of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996). In

this instance, we need not venture far beyond the words of

the statute.

We think the common sense, everyday understanding

of the word "ammunition" encompasses a single bullet or

cartridge. See O'Connell v. Shalala, 79 F.3d 170, 176 (1st

Cir. 1996) ("courts are bound to afford statutes a practical,

commonsense reading"). Thus courts, and the public

generally, refer to ammunition in terms of "rounds." See

United States v. Brimage, 115 F.3d 73, 76 (1st Cir. 1997),

cert. denied, No. 97-5971, 1997 WL 592723 (U.S. Oct. 14,

1997)("loaded with six rounds of ammunition"); United States

v. Balanga, 109 F.3d 1299, 1300 (8th Cir. 1997)("a single

round of .22 caliber ammunition"). If the word "ammunition"

was incapable of meaning one bullet, one would not refer to a

"single round of ammunition."1

1. We note that even the Supreme Court has assumed, albeit
in dicta, that the term "ammunition" means a single bullet.
See United States v. Batchelder, 442 U.S. 114, 121 n.7

(1979)("[B]ecause 922(h) alone proscribes receipt of
ammunition, a felon who obtained a single bullet could

-6-
6

To hold otherwise would result in an absurdity.

Marques v. Fitzgerald, 99 F.3d 1, 5 (1st Cir. 1996)("[A]

statute may not be construed in a manner that results in

absurdities or defeats its underlying purpose."). Congress

enacted the Omnibus Crime Control and Safe Streets Act of

1968 (of which 922(g)'s predecessor was a part), inter

alia, to keep certain weaponry "out of the hands of those not

legally entitled to possess them because of . . . criminal

background . . . ." S. Rep. No. 90-1097, at 28 (1968),

reprinted in 1968 U.S.C.C.A.N. 2112, 2113. It would

therefore make little sense to interpret 922(g) to

criminalize possession of two bullets, but not one, when

Congress' purpose was to deprive certain persons of any

firepower.

II.
II.

The Interstate Commerce Nexus
The Interstate Commerce Nexus

Cardoza next assigns error to the district court's

failure to dismiss the indictment, arguing that the Supreme

Court's decision in United States v. Lopez, 514 U.S. 549

(1995), compels a finding that both 18 U.S.C. 922(g) and

922(x) as applied to him exceed congressional power under

the Commerce Clause. Our review of constitutional challenges

to federal statutes is de novo. United States v. Bongiorno,

106 F.3d 1027, 1030 (1st Cir. 1997).

receive a 5-year sentence . . . .").

-7-
7

In Lopez the Court struck down the Gun-Free School

Zones Act of 1990 ("GFSZA"), which criminalized the

possession of a handgun within a school zone, as being beyond

the reach of Congress' affirmative powers under the Commerce

Clause. 514 U.S. at 567-68. Identifying the GFSZA as an

attempted regulation of purely intrastate activity

(possession alone) that has an effect on interstate commerce,

the Court clarified existing precedent to hold that where

Congress attempts to control such activity, the "proper test

[of the statute's constitutionality] requires an analysis of

whether the regulated activity 'substantially affects'

interstate commerce." Id. at 559. Because the "possession

of a gun in a local school zone is in no sense an economic

activity that might, through repetition elsewhere,

substantially affect any sort of interstate commerce," id.

at 567, enactment of the GFSZA exceeded congressional power

under the Commerce Clause.

Cardoza urges us to extend the Court's Lopez

reasoning to the statutes under which he was convicted. We

address each statute in turn.

A.
A.

18 U.S.C. 922(g)(1)
18 U.S.C. 922(g)(1)

As an initial matter, it is now well-settled in

this circuit that "a facial challenge to the

constitutionality of the statute at issue, [ 922(g)], is

-8-
8

'hopeless on . . . the law.'" United States v. Blais, 98

F.3d 647, 649 (1st Cir. 1996), cert. denied, 117 S. Ct. 1000

(1997)(quoting United States v. Bennett, 75 F.3d 40, 49 (1st

Cir.), cert. denied, 117 S. Ct. 130 (1996)). Cardoza instead

argues that 922(g) exceeds congressional commerce clause

authority because it fails to require proof that possession

of a single ammunition cartridge "substantially affects"

interstate commerce as purportedly mandated by Lopez.

Cardoza would therefore have us hold that Lopez impliedly

changes the meaning of the jurisdictional element present in

922(g) such that the ammunition which he possessed must

have "substantially affected" interstate commerce before his

conviction passes Commerce Clause scrutiny. This application

of the Lopez decision to 922(g) has been rejected by this

court more than once. United States v. Smith, 101 F.3d 202,

215 (1st Cir. 1996), cert. denied, 117 S. Ct. 1345 (1997);

Blais, 98 F.3d at 649; see also United States v. Diaz-

Martinez, 71 F.3d 946, 953 (1st Cir. 1995) (rejecting

identical argument in appeal from 922(k) conviction).

To be perfectly clear, when the Court stated that

"the proper test requires an analysis of whether the

regulated activity 'substantially affects' interstate

commerce," Lopez, 514 U.S. at 559, it was not revising the

government's burden of proof on a jurisdictional element in

criminal proceedings, but instead identifying the extent to

-9-
9

which purely intrastate activities must impact interstate

commerce before Congress may legislate under the Commerce

Clause. See United States v. Robertson, 514 U.S. 669, 671

(1995)(per curiam)("The 'affecting commerce' test was

developed in our jurisprudence to define the extent of

Congress's power over purely intrastate commercial activities

that nonetheless have substantial interstate effects.").

Therefore, because the Court had no occasion in Lopez to

reach the question, 514 U.S. at 561-62, it remains the law

that where a federal criminal statute contains a

jurisdictional element requiring proof that an object was "in

or affecting" commerce, the government need only meet the

"minimal nexus" test enunciated in Scarborough v. United

States, 431 U.S. 563, 577 (1977). Blais, 98 F.3d at 649

("Scarborough is still good law after Lopez."). Because the

government proved below that the ammunition cartridge had

moved in interstate commerce, the district court correctly

denied Cardoza's motion to dismiss Count I.

B.
B.

18 U.S.C. 922(x)
18 U.S.C. 922(x)

Raising a question of first impression in this

circuit, Cardoza next urges us to extend the Lopez reasoning

to his conviction under the Youth Handgun Safety Act

("YHSA"), codified at 18 U.S.C. 922(x). Because we find

that the YHSA regulates the national juvenile market in

-10-
10

handguns by prohibiting certain intrastate activities, it is

a proper exercise of Congress' authority. See United States

v. Michael R., 90 F.3d 340, 343-45 (9th Cir. 1996)(upholding

YHSA against Lopez-based Commerce Clause challenge).

The Commerce Clause gives Congress the power to

"regulate Commerce . . . among the several States." U.S.

Const., art. I, 8, cl. 3. The Supreme Court has recognized

three categories of activities which Congress may reach under

this provision. Lopez, 514 U.S. at 558-59.

First, Congress may regulate the use of
the channels of interstate commerce.
Second, Congress is empowered to regulate
and protect the instrumentalities of
interstate commerce, or persons or things
in interstate commerce, even though the
threat may come only from intrastate
activities. Finally, Congress' commerce
authority includes the power to regulate
those activities having a substantial
relation to interstate commerce, those
activities that substantially affect
interstate commerce.

Id. Our review of a statute's constitutionality under the

Commerce Clause is decidedly limited. First, we must "defer

to a congressional finding that a regulated activity

[substantially]2 affects interstate commerce, if there is any

rational basis for such a finding." Hodel v. Virginia

Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276

2. As explained supra, the Lopez majority modified the Hodel

standard to require a finding that the activity
"substantially affects" interstate commerce. Lopez, 514 U.S.

at 559.

-11-
11

(1981). Second, "the only remaining question for judicial

inquiry is whether 'the means chosen by [Congress][are]

reasonably adapted to the end permitted by the

Constitution.'" Id. (first alteration in original)(quoting

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,

262 (1964)).

By invoking Lopez as the sole controlling

authority, Cardoza is arguing that the YHSA can only be

upheld as an example of the third permitted category.3

Although we think the YHSA "is likely supportable under more

than one of these rubrics," Bongiorno, 106 F.3d at 1031, we

meet Cardoza's contention, and find that the intrastate sale,

transfer, delivery, and possession of handguns to and by

juveniles sufficiently impact interstate commerce to pass

constitutional muster.

To begin with, we note that the Commerce power has

long been exercised to regulate the national market in

firearms. See Huddleston v. United States, 415 U.S. 814,

824-29 (1974)(assuming congressional power to enact federal

gun control legislation); United States v. Rybar, 103 F.3d

273, 279-82 (3d Cir. 1996)(compiling history of federal gun

control legislation in rejecting Lopez-based challenge to

922(o)), cert. denied, No. 96-1738, 1997 WL 250325 (U.S. Oct.

3. This is so because Lopez expressly avoided analysis of

the first two categories. 514 U.S. at 559.

-12-
12

6, 1997). Thus in Rybar, the Third Circuit upheld the

constitutionality of a federal criminal statute making it

illegal to "transfer or possess a machinegun," 18 U.S.C.

922(o)(1) (West Supp. 1997), stating that

[t]here was no reason for Congress to
believe that traffic in machine guns had
any less connection with
interstate commerce than did the
possession of a firearm by a felon, and
Congress' intent to regulate possession
and transfer of machine guns as a means
of stemming interstate gun trafficking is
manifest.

Id. at 282.

Under the third permitted category, "[w]here

economic activity substantially affects interstate commerce,

legislation regulating that activity will be sustained."

Lopez, 514 U.S. at 560. As an initial matter we find that

the YHSA is a regulation of economic activity. This is so

because it prohibits expressly commercial activity, namely,

the sale, transfer, or delivery of handguns to juveniles. It

therefore stands in direct opposition to the statute

invalidated in Lopez, which "by its terms ha[d] nothing to do

with 'commerce' or any sort of economic enterprise . . . ."

Id. at 561.

Similarly, we think the possessory prong of the

YHSA, under which Cardoza was convicted of aiding and

abetting, is "an essential part of a larger regulation of

economic activity, in which the regulatory scheme could be

-13-
13

undercut unless the intrastate activity were regulated." Id.

This is so because the YHSA was designed expressly to "stop[]

the commerce in handguns with juveniles nationwide . . . ."

H.R. Conf. Rep. No. 103-711, at 391 (1994), reprinted in 1994

U.S.C.C.A.N. 1858, 1859. Part of this regulatory approach

involves the suppression of the demand for such handguns.

The YHSA can be thus seen as criminalization of the two

points where the prohibited commerce finds its nexus; the

demand for the firearms (possession), and the sale or

transfer designed to meet that demand. The two prohibitions

go hand in hand with one another. Invalidation of one half

of the equation would likely have deleterious effects on the

efficacy of the legislation. In this regard, we think it

clear that given Congress' express purpose, its decision to

punish both the supply (sale or transfer) and demand

(possession) sides of the market is a means reasonably

calculated to achieve its end. Hodel, 452 U.S. at 276.

So far, we have determined that the YHSA regulates

economic activity, and that the possessory prong of the YHSA

is integral to the regulation. Assuming, then, for purposes

of this appeal, that the regulated activity occurs solely

intrastate, we must now pass on whether this activity

"substantially affects" interstate commerce. We turn first

to the legislative findings on the matter. Lopez, 514 U.S.

at 562 ("we of course consider legislative findings . . .

-14-
14

regarding effect on interstate commerce . . . ."). Concerned

that "[c]rime, particularly crime involving drugs and guns,

is a pervasive, nationwide problem; problems with crime at

the local level are exacerbated by the interstate movement of

drugs, guns and criminal gangs; firearms and ammunition, and

handguns in particular, move easily in interstate commerce,"

H.R. Conf. Rep. No. 103-711, at 390 (1994), reprinted in 1994

U.S.C.C.A.N. 1858, Congress found that "it is necessary and

appropriate to assist the States in controlling crime by

stopping the commerce in handguns with juveniles nationwide .

. . ." Id. at 391, 1994 U.S.C.C.A.N. at 1859. This

indicates that Congress determined that the market for

handguns among juveniles was national. We do not think this

observation can be seriously disputed. As the court in Rybar

concluded, "[c]ongressional findings generated throughout

Congress' history of firearms regulation link both the flow

of firearms across state lines and their consequential

indiscriminate availability with the resulting violent

criminal acts that are beyond the effective control of the

state." 103 F.3d at 279.

The answer, therefore, to whether an intrastate

market in handguns for juveniles "substantially affects" the

interstate market in such commodities is obvious. Simply

put, the handgun must come from somewhere, often out of

state. Indeed, it is worth noting here that even though the

-15-
15

YHSA does not require it, the government introduced evidence

at trial that the handgun transferred to Ragsdale had, in

fact, been manufactured outside Massachusetts. Therefore,

the supply and demand for handguns in any given state will

"substantially affect" interstate commerce in handguns by

causing the weapons to move across state lines.

In Lopez, the Court examined its decision in

Wickard v. Filburn, 317 U.S. 111 (1942), stating that the

decision was "perhaps the most far reaching example of

Commerce Clause authority over intrastate activity . . . ."

Lopez, 514 U.S. at 560-61. Still, Chief Justice Rehnquist

quoted with approval the Wickard analysis that "a factor of

such volume and variability as home-consumed wheat would have

a substantial influence on price and market conditions." Id.

at 560 (quoting Wickard, 317 U.S. at 128). We think the

intrastate commerce in handguns goes well beyond the

"substantial influence" present in Wickard. As such, the

YHSA is proper under the Commerce Clause.

III.
III.

The Fourth Amendment Claim
The Fourth Amendment Claim

Cardoza next challenges the district court's denial

of his motion to suppress the bullet, arguing that the

evidence was the result of an unconstitutional search and

seizure. Cardoza suggests that because the police admitted

that they did not have reasonable and articulable suspicion

-16-
16

to "Terry-stop" Cardoza, discovery of the bullet flowed from

an unreasonable seizure, and thus must be excluded. See

generally United States v. Zapata, 18 F.3d 971, 975-77 (1st

Cir. 1994). Because we agree that there was no "seizure"

within the meaning of the Fourth Amendment at the time the

police officer saw the bullet in Cardoza's hand, we uphold

the lower court's denial of Cardoza's suppression motion.

Our review of a lower court's denial of a

suppression motion is bifurcated. We review the district

court's findings of fact for clear error, United States v.

Young, 105 F.3d 1, 5 (1st Cir. 1997), which "exists only if,

after considering all of the evidence, we are left with a

definite and firm conviction that a mistake has been made,"

id. (quoting United States v. McCarthy, 77 F.3d 522, 529 (1st

Cir.), cert. denied, 117 S. Ct. 479 (1996)). As we stated

in Young, this deference to the lower court's fact finding

"reflects our awareness that the trial judge . . . sits in

the best position to determine what actually happened." Id.

Conversely, we review conclusions of law de novo, subjecting

constitutional interpretations to plenary review. Id.;

Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

Finally, as a general matter, we uphold a district court's

denial of a suppression motion "provided that any reasonable

view of the evidence supports the decision." McCarthy, 77

F.3d at 529.

-17-
17

We begin with the factual findings of the district

court, which do not differ in substance from our recitation

of the facts supra. The record demonstrates that portions of

the police officer's as well as Cardoza's and Ragsdale's

testimony were credited in making the findings. The court's

findings of fact are supported by the evidence, United States

v. Sealey, 30 F.3d 7, 8 (1st Cir. 1994), and we detect no

error.

Turning to the court's rulings of law, Cardoza

argues that because the court stated at the hearing that in

the absence of a response from Cardoza, "the police officers

would have run them down," the court was in essence finding

that Cardoza was seized by the time the bullet was seen.

Although the lower court's legal conclusions on the Fourth

Amendment issue lack the precision and clarity desirable for

appellate review, we think Cardoza's argument ignores the

entirety of the court's reasoning in favor of an irrelevant

aside. Reading the findings in total, it is apparent that

the court determined that there was no "stop" within the

meaning of Terry v. Ohio, 392 U.S. 1 (1968). Our reasoning

is as follows. The court found that prior to seeing the

bullet in his hand, the police had no basis upon which to

constitutionally detain Mr. Cardoza. Yet it went on to hold

that the interaction between Officer Brown and Cardoza was

"lawful," and provided no grounds upon which to exclude the

-18-
18

evidence. Under current Fourth Amendment jurisprudence, the

only way the district court could have determined that the

interaction was lawful (here meaning constitutional) and also

hold that there was no reasonable and articulable suspicion

upon which to detain Cardoza, was for it to decide that the

police were not detaining, or seizing, Cardoza within the

meaning of the Fourth Amendment.4 We conclude therefore that

the court below determined that there was no seizure of

Cardoza prior to Officer Brown's sighting of the bullet in

Cardoza's hand. See McCarthy, 77 F.3d at 525 ("Where

specific findings are lacking, we view the record in the

light most favorable to the ruling, making all reasonably

supported inferences.").

We now turn to the gravamen of Cardoza's Fourth

Amendment argument, namely, whether the district court's

determination that there was no seizure was correct. To be

sure, "not all personal intercourse between policemen and

citizens involves 'seizures' of persons." Terry, 392 U.S. at

4. The government also suggests that because the district
court inferred that Cardoza deliberately approached the
cruiser in order to throw the police off Ragsdale, there was
no "submission to" a police show of authority within the
meaning of California v. Hodari D., 499 U.S. 621, 626 (1991),

because of the fact that Cardoza's actions were motivated not
by acquiescence to a police request, but rather his own
strategic decision. We note only that, given the generally
objective standards employed in Fourth Amendment seizure
analysis, we would see little reason to inquire into the
subjective intent of the detainee in making the determination
whether or not he or she has "submitted to" a show of
authority.

-19-
19

19 n.16. Instead, "[i]nteraction between law enforcement

officials and citizens generally falls within three tiers of

Fourth Amendment analysis, depending on the level of police

intrusion into a person's privacy." Young, 105 F.3d at 5.

The first tier "encompasses interaction of such minimally

intrusive nature that it does not trigger the protections of

the Fourth Amendment." Id. It has therefore been recognized

that police officers may approach citizens in public and ask

questions without the need for articulable suspicion of

criminal activity. Florida v. Bostick, 501 U.S. 429, 434-35

(1991); Young, 105 F.3d at 6.

Undoubtedly, Fourth Amendment analysis does not

easily lend itself to bright line distinctions. See Zapata,

18 F.3d at 975. It is therefore the case that,

in order to determine whether a
particular encounter constitutes a
seizure, a court must consider all the
circumstances surrounding the encounter
to determine whether the police conduct
would have communicated to a reasonable
person that the person was not free to
decline the officers' requests or
otherwise terminate the encounter.

Bostick, 501 U.S. at 439. The test employed in this area is

highly fact specific. As a result, the Court in Bostick

rejected a per se rule that police drug interdiction efforts

on bus lines were always unconstitutional because it

determined that any analysis that hinged on a single

dispositive factor foreclosed consideration of "all the

-20-
20

circumstances . . . ." Id. See also Michigan v. Chesternut,

486 U.S. 567, 572 (1988) ("[A]ny assessment as to whether

police conduct amounts to a seizure implicating the Fourth

Amendment must take into account all of the circumstances

surrounding the incident in each individual case.")(internal

quotation omitted).

Our decisions have adhered to an analysis that

considers the totality of the circumstances particular to

each encounter. Young, 105 F.3d at 6. In doing so we have

had the recent opportunity to examine the existence of Fourth

Amendment seizures under facts remarkably similar to the case

at hand. Thus, in Young we found no seizure where a police

cruiser "pulled alongside [defendant], the officers

identified themselves as Boston Police officers, and asked

'got a minute' to which [defendant] replied 'sure.'" Id.

Similarly, in Sealey, there was no Fourth Amendment violation

where police officers in a cruiser approached the defendant

and yelled "Hey Stephen, what's up?" before the defendant

took flight. 30 F.3d at 8, 10. In each instance, our

determination was informed by the observation that "in the

absence of an officer's exertion of physical force or an

individual's submission to a show of authority, no seizure

occurs." Young, 105 F.3d at 6; Sealey, 30 F.3d at 10.

Cardoza focuses our attention on several facts

particular to his situation that ostensibly compel a holding

-21-
21

contrary to Young and Sealey. First, the question posed to

him, "Why are you out at this time of night?" is more

demanding and pointed an inquiry than the generalized queries

at issue in Young and Sealey. Second, the police cruiser

turned the wrong way up a one-way street, albeit for a very

short distance, making clear the officer's intention to come

into contact with Cardoza. Finally, Cardoza adds that his

past interactions with the same officer led him to believe

that he was not free to leave at the time he was called over.

Although each of these facts distinguishes his case from

Young and Sealey, our job in identifying whether a Fourth

Amendment seizure has occurred is not absolutely controlled

by the traditional operation of factually similar precedent.

This is so because no two police-citizen encounters will ever

be completely identical. We therefore reject the

government's assertion that Young dispositively controls the

outcome of this appeal. Instead, "we adhere to our

traditional contextual approach, and determine only that, in

this particular case, the police conduct in question did not

amount to a seizure." Chesternut, 486 U.S. at 573. We make

this determination in the instant case because the police

conduct at issue was not a "show of authority" within the

meaning of Fourth Amendment jurisprudence. Hodari D., 499

U.S. at 625-29.

-22-
22

As the Court observed in Hodari D., "the test for

existence of a 'show of authority' is an objective one: not

whether the citizen perceived that he was being ordered to

restrict his movement, but whether the officer's words and

actions would have conveyed that to a reasonable person."

Id. at 628. Similarly, it was noted in Chesternut that

[t]he test is necessarily imprecise,
because it is designed to assess the
coercive effect of police conduct, taken
as a whole, rather than to focus on
particular details of that conduct in
isolation. Moreover, what constitutes a
restraint on liberty prompting a person
to conclude that he is not free to
"leave" will vary, not only with the
particular police conduct at issue, but
also with the setting in which the
conduct occurs.

486 U.S. at 573.

Our inquiry is not directed at whether the police

conduct objectively communicated police desire to speak to

Cardoza, or ask him a question.5 Rather, we must determine

whether their conduct indicated that they were interfering

with his liberty to such an extent that he was not free to

leave. We think the distinction important, and are left,

therefore, with the conclusion that the police officers'

conduct on the night in question would not have communicated

5. Indeed, it would appear that this is exactly what the
district court was referring to when it stated at the
suppression hearing that the police "intended to exercise
their authority at least to bring themselves into a position
to confront Mr. Cardoza."

-23-
23

to a reasonable person that the police were attempting to

"intrude upon [Cardoza's] freedom of movement." Id. at 575.

To begin with, no sirens or flashing lights were

used by the officers to indicate to Cardoza that he should

stop in his tracks. Similarly, the police cruiser pulled

over and stopped at the curb before Officer Brown called out

to Cardoza. Compare Chesternut, 486 U.S. at 576 (short drive

alongside defendant not "so intimidating" as to constitute

seizure). And Officer Brown remained in the car when he

called out to Cardoza. In total, the encounter does not

objectively communicate a "restrain[t against] his freedom to

walk away . . . ." Terry, 392 U.S. at 16. Officer Brown did

not ask Cardoza to stop, or even to approach the car. He

simply called out through an open car window with the

question "what are you doing out at this time of night?"

Those words do not objectively communicate an attempt to

restrain Cardoza's liberty. We are therefore unpersuaded

that the police officers' actions transformed "mere police

questioning," Bostick, 501 U.S. at 434, into a seizure.

We recognize, of course, the import of Cardoza's

observation that few people, including himself, would ever

feel free to walk away from any police question. Under this

reasoning, however, the standard reiterated in Bostick

transforms every police-citizen encounter into a seizure. See

United States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir.

-24-
24

1990)(recognizing criticism of test as "based on a false

assumption that ordinary citizens believe they are normally

free to cut police inquiries short."). The "free to walk

away" test, however, must be read in conjunction with the

Court's frequent admonitions that "a seizure does not occur

simply because a police officer approaches an individual and

asks a few questions." Bostick, 501 U.S. at 434; Terry, 392

U.S. at 19 n.16. What emerges between the two imperatives,

therefore, is the directive that police conduct, viewed from

the totality of the circumstances, must objectively

communicate that the officer is exercising his or her

official authority to restrain the individual's liberty of

movement before we can find that a seizure occurred.6

Because there was no such objective communication in the

instant case, we affirm the district court's denial of

Cardoza's motion to suppress.

IV.
IV.

The Sentence
The Sentence

Cardoza's final argument posits that his 235-month

sentence under the Armed Career Criminal Act ("ACCA") and the

6. As for Cardoza's contention that the court's observation
that the police officers would have "run them down" compels a
contrary holding, he is mistaken. In determining whether a
seizure occurred, "the subjective intent of the officers is
relevant to an assessment of the Fourth Amendment
implications of police conduct only to the extent that that
intent has been conveyed to the person confronted."
Chesternut, 486 U.S. at 575 n.7.

-25-
25

United States Sentencing Guidelines ("U.S.S.G.") offends both

the Eighth Amendment's proscriptions against cruel and

unusual punishments and the Fifth Amendment's guarantees of

due process.

Cardoza was sentenced under the Armed Career

Criminal enhancement, 18 U.S.C. 924(e), and the

corresponding Guideline section, U.S.S.G 4B1.4, because he

violated the felon-in-possession statute, 18 U.S.C. 922(g),

and had at least three prior convictions for violent felonies

which had been committed on occasions different from one

another. Cardoza's Pre-Sentence Report ("PSR") contains a

record of four violent felonies of which he had been

convicted, which are described below, the facts being drawn

from the unobjected-to portions of the PSR. United States v.

Voccola, 99 F.3d 37, 43 (1st Cir. 1996).7

On June 27, 1988, Cardoza was arrested and

arraigned for attempting to steal an automobile, assault and

battery of a police officer, receipt of stolen property, and

possession of burglarious tools. On February 13, 1989, he

was arrested and arraigned for stealing a woman's wallet at a

7. We briefly elaborate on the facts underlying Cardoza's
four violent felonies not because the facts of each
conviction are relevant to the sentencing process itself.
They are not. See United States v. Damon, No. 97-1032, 1997

WL 605196, at *7 (1st Cir. Oct. 6, 1997)("Congress intended
that the Guidelines take a categorical approach to
sentencing."). Instead, we provide a short explication in
order to refute Cardoza's contention that he is being
sentenced solely for possession of a bullet.

-26-
26

local mall, possession of burglarious tools, and receipt of a

stolen car which he had attempted to use in his getaway. On

March 15, 1989, Cardoza and another individual were arrested

for armed robbery, and assault and battery with a dangerous

weapon, having held up an individual by restraining the

victim from behind and holding a screwdriver against the

victim's throat. He was convicted of this latter offense and

sentenced on July 28, 1989, in Suffolk County Superior Court

to twenty years for the armed robbery count, two years to

serve, and ten years on the assault and battery with a

dangerous weapon count, one year to serve. He was convicted

and sentenced on August 18, 1989, for the former two offenses

in Roxbury District Court to two and one-half years

incarceration for each, sentences to run concurrent with the

sentence imposed in Suffolk Superior Court for the armed

robbery charge. Cardoza was released from prison on June 10,

1991.

Less than four months after his release, on

October 2, 1991, he was arrested with four other men after

the car in which they were riding pulled up beside another

vehicle, a passenger in the car containing Cardoza pointed a

semi-automatic weapon out the window, and proceeded to fire

four rounds into the adjacent automobile. He was convicted

and sentenced in Suffolk County Superior Court for assault

with a dangerous weapon, knowingly receiving stolen property,

-27-
27

and possession of a firearm. He received three to five years

incarceration. Cardoza was released on September 30, 1994.

The offenses for which he was convicted in the instant appeal

occurred just over nine months later.

At sentencing, the government and Cardoza's counsel

agreed that the proper sentence calculation under the ACCA

and U.S.S.G. was 235 to 293 months. No argument was made by

Cardoza's counsel to depart downward.8 Cardoza did, however,

press his constitutional arguments both in his objections to

the PSR and at the disposition hearing. Cardoza was

sentenced to 235 months incarceration on Count I, one year

each on Counts III and IV to run concurrent with Count I and

each other, and supervised release of five years. The court

concluded sentencing with the following statement:

I've given you the most lenient sentence
that I am authorized to give under the
law. And yet that lenient sentence, at
least given what discretion I have,
sentences you to prison for nearly 20
years of your life. And the fact is
that, . . . as you were building up this
conviction after conviction after
conviction after conviction in the state
courts, with these short sentences or no
sentences, you were laying the groundwork
for this sentence which is imposed upon

8. Cardoza notes in his brief his contention that several of
his convictions below were unconstitutionally obtained. His
counsel conceded at the disposition hearing, however, that he
cannot collaterally attack these convictions at sentencing.
Custis v. United States, 511 U.S. 485, 497 (1994). The

district court was correct that Cardoza may return to it
should a subsequent constitutional attack prove successful.
United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996).

-28-
28

you exactly as [your attorney] explained
it, because you are a felon in possession
of ammunition, one bullet; and because,
given your prior history, you are
considered by the Court and by society to
be an armed career criminal.

Now, these are the laws that I must
follow. Society has decided through the
Congress that it simply will not tolerate
this violence, will not tolerate people
who have such a record from committing
other crimes. I am required to impose
this sentence given the legal framework
under which we operate. It is a just
sentence.

A.
A.

The Eighth Amendment
The Eighth Amendment

Cardoza supports his Eighth Amendment challenge on

the basis of the Supreme Court's decision in Solem v. Helm,

463 U.S. 277 (1983), arguing that his sentence, like the life

sentence imposed in Helm under a recidivist statute for

writing a $100 "no-account" check, is "significantly

disproportionate to his crime, and is therefore prohibited by

the Eighth Amendment," id. at 303. He acknowledges that we

have rejected a facial challenge to the constitutionality of

the ACCA, United States v. Gilliard, 847 F.2d 21, 27 (1st

Cir. 1988), and instead questions only the constitutionality

of the ACCA provisions as applied to him, given that his

possessory offense involved only one bullet.

Although the Court in Helm stated that "[t]he

constitutional principle of proportionality has been

recognized explicitly in the Court for almost a century,"

-29-
29

Helm, 463 U.S. at 286, it also recognized that "prior

convictions are relevant to the sentencing decision", id. at

296 n.21. Similarly, the Court's most recent examination of

proportionality has, at the very least, cast doubt on the

exact method by which a reviewing court should approach such

challenges in non-capital cases. In the plurality opinion of

Harmelin v. Michigan, 501 U.S. 957 (1991), two justices

sought to limit proportionality review to capital cases only,

id. at 994 (opinion of Scalia, J., joined by Rehnquist,

C.J.), three justices recognized a "narrow proportionality

principle," id. at 997 (opinion of Kennedy, J., joined by

O'Connor and Souter, JJ.), and three justices dissented on

the grounds that Helm's three-factor proportionality review

controlled, id. at 1021 (White, J., dissenting, joined by

Blackmun and Stevens, JJ.). We have interpreted Harmelin to

require a defendant seeking proportionality review to

demonstrate, at the threshold, an "initial inference of gross

disproportionality," Tart v. Commonwealth of Massachusetts,

949 F.2d 490, 503 n.16 (1st Cir. 1991), between the "gravity

of [the] criminal conduct and the severity of the . . .

penalty" imposed, United States v. Bucuvalas, 970 F.2d 937,

946 (1st Cir. 1992). See Harmelin, 501 U.S. at 1005 (opinion

of Kennedy, J.) ("[I]ntrajuris-dictional and

interjurisdictional analyses are appropriate only in the rare

case in which a threshold comparison of the crime committed

-30-
30

and the sentence imposed leads to an inference of gross

disproportionality."); United States v. Graciani, 61 F.3d 70,

76 (1st Cir. 1995); United States v. Saccoccia, 58 F.3d 754,

788-89 (1st Cir. 1995), cert. denied, 116 S. Ct. 1322 (1996).

Thus, in Graciani, we upheld a 280-month sentence

for the distribution of 85.3 grams of crack cocaine against a

proportionality attack. 61 F.3d at 73, 77. Similarly, in

Saccoccia we upheld a mandatory life sentence in a drug-money

laundering scheme, stating that

Congress -- not the judiciary -- is
vested with the authority to define, and
attempt to solve, the societal problems
created by drug trafficking across
national and state borders. The Supreme
Court has made it plain that the use of
severe penalties as part of the
legislative armamentarium does not
constitute cruel and unusual punishment.

58 F.3d at 789.

Against this backdrop, we cannot say that Cardoza's

sentence supports the necessary "inference of gross

disproportionality." Bucuvalas, 970 F.2d at 946. Cardoza

has not been sentenced to a 235-month incarceration solely

because he was in possession of a single bullet, as his brief

strenuously argues. Rather, he has been sentenced to such a

term because (1) he was a convicted felon in possession of

the bullet, and (2) he had previously been convicted of at

least three violent felonies. Further, despite counsel for

appellant's position at oral argument, a bullet is not a

-31-
31

"souvenir." It is a live round of ammunition capable of

doing considerable harm when fired from a gun. With those

clarifications in mind, the sentence imposed upon him under

the ACCA recidivist statute does not give rise to an

inference of constitutional infirmity. As we stated in

Gilliard,

The purpose of a recidivist statute
. . . is not to simplify the task of
prosecutors, judges or juries. Its
primary goals are to deter repeat
offenders and, at some point in the life
of one who repeatedly commits criminal
offenses serious enough to be punished as
felonies, to segregate that person from
the rest of society for an extended
period of time. . . . Like the line
dividing felony theft from petty larceny,
the point at which a recidivist will be
deemed to have demonstrated the necessary
propensities and the amount of time that
the recidivist will be isolated from
society are matters largely within the
discretion of the punishing jurisdiction.

847 F.2d at 26 (quoting Rummel v. Estelle, 445 U.S. 263, 284-

85 (1980)). While it may be the case that reasonable persons

will disagree as to the wisdom of the policy choice inherent

in the imposition of a sentence such as this, such

disagreements do not, in the instant case, give rise to

constitutional concerns. In the years preceding his

conviction below, Cardoza had racked up at least three

convictions for violent felonies in the state courts.

Responding to the very problem presented by Cardoza's

conduct, Congress decided to "infuse federal law enforcement

-32-
32

into efforts at curbing and 'incapacitating''armed, habitual

(career) criminals.'" Id. (alteration in original) (quoting

H.R. Rep. No. 1073, at 2 (1984), reprinted in 1984

U.S.C.C.A.N. 3661, 3662). Viewing, therefore, the total

conduct for which Cardoza has been sentenced, we cannot find

a supportable inference of gross disproportionality, and thus

reject his Eighth Amendment challenge.

B.
B.

Due Process
Due Process

We note at the outset that Cardoza's due process

challenge was not raised below. The only mention made of

this challenge in the district court is by incantation of the

term "Due Process" in Cardoza's objections to the PSR. It is

well-settled that "issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed

argumentation, are deemed waived. . . . It is not enough

merely to mention a possible argument in the most skeletal

way, leaving the court to do counsel's work . . . ." United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We

therefore review Cardoza's claim for plain error. United

States v. Olano, 507 U.S. 725, 732 (1993). It does not

occupy our attention for long.

Cardoza bases his due process challenge on our

decision in United States v. Lombard, 72 F.3d 170 (1st Cir.

1995)(Lombard I). There, we vacated a sentence and remanded

-33-
33

because the district court erroneously believed that it had

no authority to depart downward, despite the substantial

effect that consideration of previously acquitted conduct had

on Lombard's sentence. Id. at 187. We were concerned that

"the sentencing phase of the defendant's trial produced the

conclusion he had committed murder and mandated imposition of

a life sentence, but without the protections which normally

attend the criminal process, such as the requirement of proof

beyond a reasonable doubt." Id. at 179-80. Our decision was

compelled by both the extreme facts and the determination

that the "district court did not recognize its authority to

consider whether a downward departure would have been

appropriate . . . ." Id. at 187. We were, however, clear

that Lombard I is "an unusual and perhaps a singular case, at

the boundaries of constitutional sentencing law, and does not

provide an open door." Id. Indeed, following remand, we

upheld the imposition of the same life sentence, after the

district court recognized its authority to depart, and chose

not to exercise it. United States v. Lombard, 102 F.3d 1, 2,

5 (1st Cir. 1996), cert. denied, 117 S. Ct. 2437

(1997)(Lombard II).

None of the concerns animating our decision in

Lombard I are present here. Most importantly, the

enhancement below was predicated on convictions that were

obtained in state court, as opposed to the uncharged, indeed

-34-
34

acquitted, conduct enhancements at play in Lombard I. And

Cardoza does not suggest that he was denied any of the

procedural protections found lacking in Lombard I. In short,

we do not think this case lies, like Lombard I, "at the

boundaries of constitutional sentencing law . . . ." Lombard

I, 72 F.3d at 187.9

Finally, Cardoza makes three brief arguments

concerning the calculation of his criminal history. As

Cardoza himself recognizes, however, resolution of any errors

would not affect his sentence. We therefore need not reach

them. We note only that should Cardoza return to the

district court for resentencing, see supra note 8, this

opinion does not preclude him from raising, at that time, his

criminal history arguments.

Conclusion
Conclusion

For the foregoing reasons, the convictions and

sentence below are affirmed.
affirmed

9. Cardoza also makes vague allusions in his brief to double
jeopardy and federalism concerns attendant in his sentence.
These arguments are completely undeveloped, and are deemed
waived. See Zannino, 895 F.2d at 17.

-35-
35