Cite as United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997)

                  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 Frederick
Cardoza appeals his convictions and sentence under the
felon-in-possession statute, 18 U.S.C. section 922(g)(1) and the
Youth Handgun Safety Act, 18 U.S.C section 922(x).  His appeal is
primarily based on multiple constitutional arguments, which shall
be addressed in turn.  We affirm.

                           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 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 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. section 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. section 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
imprisonment and five years of supervised release.  This appeal
followed.

                           I.

                  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. section 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 section 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. section
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 reading of
which leads to the inexorable conclusion that a single nine
millimeter bullet . . . constitutes ammunition for the purposes of
[section 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." [footnote 1] 

    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 section 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 section 922(g) to criminalize
possession of two bullets, but not one, when Congress' purpose was
to deprive certain persons of any firepower. 

                           II.

                  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. section 922(g) and section 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).  

    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.

                  18 U.S.C. section 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, [section 922(g)], is '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 section 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 section 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 section 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 section 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 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.

                           18 U.S.C. section 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.
section 922(x).  Because we find that the YHSA regulates the
national juvenile market in 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,
section 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]<a
[footnote 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 (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. [footnote 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 section 922(o)), cert. denied,
No. 96-1738, 1997 WL 250325 (U.S. Oct. 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. section 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 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
. . . 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 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.

                  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 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.

    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 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. [footnote 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 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 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 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.

    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. [footnote 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 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. 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. [footnote 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.

                           The Sentence

    Cardoza's final argument posits that his 235-month sentence under
the Armed Career Criminal Act ("ACCA") and the 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. section 924(e), and the corresponding
Guideline section, U.S.S.G section 4B1.4, because he violated the
felon-in-possession statute, 18 U.S.C. section 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). [footnote
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 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, 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. [footnote 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 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.

                           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," 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 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 "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 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.

                           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 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 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. [footnote 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

    For the foregoing reasons, the convictions and sentence below are
affirmed.

                           FOOTNOTES

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
section 922(h) alone proscribes receipt of ammunition, a felon who
obtained a single bullet could receive a 5-year sentence . . . .").

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.

3. This is so because Lopez expressly avoided analysis of the first
two categories.  514 U.S. at 559. 

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.

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."

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.

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.

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).

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.