
USCA1 Opinion

	




                            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
