
USCA1 Opinion

	




          September 19, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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