
USCA1 Opinion

	




          April 7, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1711                                                UNITED STATES,                                      Appellee,                                          v.                                    AMIR GHAFFAR,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Loletta L. Darden on brief for appellant.               _________________               Edwin J.  Gale, United  States Attorney, Gerard  B. Sullivan               ______________                           ___________________          and  Margaret E.  Curran, Assistant  United States  Attorneys, on               ___________________          brief for appellee.                                  __________________                                  __________________                      Per Curiam.    Appellant, Amir Ghaffar, pled guilty                      __________            to the following  three counts: I) possession with  intent to            distribute  heroin (21  U.S.C.    841(a)(1));  II)  use of  a            firearm during a drug trafficking crime (18 U.S.C.   924(c));            and III)  possession of  a firearm by  a felon (18  U.S.C.               922(g)).   The United States District  Court for the District            of  Rhode  Island sentenced  him to  70  months in  prison on            counts I and III,  to run concurrently, and  to 60 months  in            prison on  count II, to  run consecutively with  the sentence            imposed for counts I and III.                   Ghaffar  appeals the  sentence on  the grounds  that the            five-year  consecutive  sentence  mandated  by  18  U.S.C.               924(c)(1)  violates  his  due process  and  Eighth  Amendment            rights  and that the district court erred in failing to merge            counts II and III for sentencing purposes.  We affirm.            1.   Due Process and Eighth Amendment Claims                 _______________________________________                 Ghaffar argues on appeal, for  the first time, that  the            imposition of a five-year consecutive sentence mandated by 18            U.S.C.     924(c)(1)  violates  his due  process  rights  and            constitutes cruel  and unusual  punishment.  Ghaffar  did not            raise  these  constitutional   issues  below,  despite  ample            opportunity  to  do  so.     "We  have  repeatedly ruled,  in            connection  with  sentencing  as  in  other   contexts,  that            arguments not seasonably addressed to the trial court may not            be raised for the first time  in an appellate venue."  United                                                                   ______                                         -2-            States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991).  Therefore,            ______    _____            we deem these constitutional claims to have been waived.                 Even had the claims not been waived, however, they would            not  entitle Ghaffar  to  relief.      In  United  States  v.                                                       ______________            Campusano,  947  F.2d  1  (1st  Cir.  1991),  we  upheld  the            _________            mandatory sentencing provision of  18 U.S.C.   924(c) against            claims that  it precluded discretion by  the sentencing court            in violation of appellant's  due process and Eighth Amendment            rights. Id. at 3-4.                      ___                 Here, Ghaffar's  argument is that  the statute  violates            due  process because it  is not the  "least restrictive means            for accomplishing  Congress' purpose."   There is  no support            for  the application  of such  a standard  to the  statute in            question.  Ghaffar also  argues that the consecutive sentence            requirement   of  section   924(c)(1)  violates   the  Eighth            Amendment because it  imposes a penalty that is "harsher than            necessary."    Even  if  we  liberally  interpret this  as  a            proportionality argument, the mandatory  consecutive sentence            imposed under section 924(c) does not come close to the level            of disproportionality that would constitute cruel and unusual            punishment.  In United  States v. Gilliard, 847 F.2d  21 (1st                            ______________    ________            Cir.  1988), cert. denied, 488 U.S. 1033 (1989), we held that                         ____  ______            a minimum  fifteen-year sentence for possession  of a firearm            by an  habitual criminal, imposed  under 18 U.S.C.    924(e),            did  not  constitute  cruel  and  unusual  punishment.    The                                         -3-            reasoning of that  opinion has equal,  if not greater,  force            here.            2.   Merger of Counts II and III                 ___________________________                 Ghaffar's second argument on appeal is that the district            court  erred in sentencing him  under count II  (for using or            carrying   a  firearm  during  or  in   relation  to  a  drug            trafficking  offense)  and count  III  (for  possession of  a            firearm by a convicted felon) because both  counts involved a            single  act: possession  of a  firearm.  Ghaffar  relies upon            Ball  v.  United States,  470 U.S.  856 (1985)  (holding that            ____      _____________            Congress  did not intend  punishments to be  imposed for both            receipt of a firearm in violation of 18 U.S.C.  922(h)(1) and            possession  of a  firearm  in  violation  of 18  U.S.C.  App.             1202(a)(1)).  Ghaffar  raised  this  argument  below.    The            district court, after briefing by the parties, rejected it in            a  Memorandum and  Order dated  May 14,  1993.   The district            court fully  articulated the reasons  that Ghaffar's reliance            upon Ball v. United States is misplaced.  We reject Ghaffar's                 ____    _____________            argument  for  the  reasons  stated  in  the  district  court            opinion.                 The sentence imposed by  the district court is summarily            affirmed pursuant to Loc. R. 27.1.                                         -4-
