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
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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
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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
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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
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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
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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 . . . .").
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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
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'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
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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
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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.
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(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.
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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
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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 . . .
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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."
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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.
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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.
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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.
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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,
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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).
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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,"
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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
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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
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"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
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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
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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
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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.
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