                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 06-30288
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-05-00141-FVS
ALAN GOMEZ,
                                                  OPINION
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Eastern District of Washington
         Fred L. Van Sickle, District Judge, Presiding

                 Submitted December 8, 2006*
                     Seattle, Washington

                    Filed December 28, 2006

       Before: Betty B. Fletcher, Susan P. Graber, and
          M. Margaret McKeown, Circuit Judges.

                    Opinion by Judge Graber




  *The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).

                               20041
                   UNITED STATES v. GOMEZ                20043


                         COUNSEL

George P. Trejo, Jr., The Trejo Law Firm, Yakima, Washing-
ton, for the defendant-appellant.

Russell E. Smoot, Assistant U.S. Attorney, Spokane, Wash-
ington, for the plaintiff-appellee.


                         OPINION

GRABER, Circuit Judge:

   Defendant Alan Gomez appeals his 60-month sentence for
conspiracy to distribute 500 grams or more of a mixture con-
taining a detectable amount of cocaine. The mandatory mini-
mum sentence for that offense is 60 months’ imprisonment.
Defendant did not qualify for the statutory “safety valve” that
would have lifted the mandatory-minimum sentence—he had
three criminal history points, but the statute disqualifies
defendants who have more than one point. On appeal, Defen-
dant argues that his disqualification from the safety valve is
cruel and unusual punishment under the Eighth Amendment.
On de novo review, United States v. Jensen, 425 F.3d 698,
706 (9th Cir. 2005), cert. denied, 126 S. Ct. 1664 (2006), we
affirm.

  Defendant pleaded guilty to conspiracy to distribute 691.2
grams of a mixture containing detectable amounts of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)(II),
and 846. The statutory mandatory minimum sentence for that
20044               UNITED STATES v. GOMEZ
offense is 60 months’ imprisonment. 21 U.S.C. § 841(b)(1)
(B)(ii)(II). At the sentencing hearing, Defendant requested a
departure from the mandatory minimum sentence under the
18 U.S.C. § 3553(f) “safety valve.” He argued that a denial of
the safety valve would violate the Eighth Amendment.

   Under § 3553(f), a district court must sentence a defendant
for violations under 21 U.S.C. §§ 841 and 846 “without
regard to any statutory minimum sentence” if, among other
things, “the defendant does not have more than 1 criminal his-
tory point.” 18 U.S.C. § 3553(f)(1). Defendant had three crim-
inal history points. One criminal history point was given for
a 2004 conviction for refusal to give information to a police
officer. Part of Defendant’s sentence for that conviction was
24 months’ probation. Because he committed the instant
offense during his term of probation, another two points were
added to his criminal history computation. Thus, the district
court found that Defendant was disqualified from receiving
the benefit of the safety valve. The district court then held that
his disqualification was not unconstitutional and sentenced
him to the mandatory minimum of 60 months’ imprisonment.
Defendant timely appealed.

  Defendant argues that the safety valve provision of 18
U.S.C. § 3553(f)—the statutory criteria for which he concedes
he does not meet—violates the Eighth Amendment. Specifi-
cally, he argues that his disqualification from the safety valve
violates the Eighth Amendment’s prohibition against cruel
and unusual punishment because the statute does not allow for
individualized consideration of his past and present crimes.
We disagree.

  [1] “[T]he fixing of prison terms for specific crimes
involves a substantive penological judgment that, as a general
matter, is ‘properly within the province of legislatures, not
courts.’ ” Harmelin v. Michigan, 501 U.S. 957, 998 (1991)
(Kennedy, J., concurring) (quoting Rummel v. Estelle, 445
U.S. 263, 275—76 (1980)). We have held that, “[o]utside of
                    UNITED STATES v. GOMEZ                 20045
the death penalty context, the Eighth Amendment is offended
only by sentences that are ‘grossly disproportionate’ to the
crime.” United States v. Aguilar-Muniz, 156 F.3d 974, 978
(9th Cir. 1998). “ ‘Generally, as long as the sentence imposed
on a defendant does not exceed statutory limits, this court will
not overturn it on Eighth Amendment grounds.’ ” United
States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per
curiam) (quoting United States v. Parker, 241 F.3d 1114,
1117 (9th Cir. 2001)).

   [2] Here, Defendant does not challenge the validity of the
mandatory minimum 60-month sentence itself. Indeed, we
have consistently upheld mandatory minimum sentencing
schemes against constitutional challenge. United States v.
Labrada-Bustamante, 428 F.3d 1252, 1265 (9th Cir. 2005)
(citing United States v. Wilkins, 911 F.2d 337, 339 (9th Cir.
1990)). Even before Harmelin, we upheld similar sentences
for offenses similar to Defendant’s. See, e.g., United States v.
Kidder, 869 F.2d 1328, 1333-34 (9th Cir. 1989) (upholding a
sentence of 5 years’ imprisonment, the mandatory minimum,
for possession with intent to distribute 500 grams or more of
cocaine); see also Hutto v. Davis, 454 U.S. 370, 370-75
(1982) (per curiam) (upholding a sentence of 40 years’
imprisonment for possession with intent to distribute 9 ounces
of marijuana). Moreover, Defendant does not argue that he
had only one criminal history point or that the district court
misapplied the safety valve or sentencing statutes in any other
way.

   [3] Rather, Defendant argues that denying him the safety
valve exception is disproportionate punishment because his
sentence allegedly would have been 23 months less if he were
eligible for the safety valve. We grant “ ‘substantial defer-
ence’ ” to legislatures’ determination of “ ‘the types and limits
of punishments for crimes.’ ” Albino, 432 F.3d at 938 (quot-
ing Solem v. Helm, 463 U.S. 277, 290 (1983)). Thus, we hold
that Congress’s decision in 18 U.S.C. § 3553(f) to grant a
reprieve from certain statutory minimums only to defendants
20046              UNITED STATES v. GOMEZ
who have no more than one criminal history point does not
violate the Eighth Amendment’s guarantee against cruel and
unusual punishment.

   [4] Defendant also argues that § 3553(f)(1) unconstitution-
ally precludes consideration of the fact that his 2004 convic-
tion for refusing to give information to a police officer was a
minor offense. His citations to Solem and Sumner v. Shuman,
483 U.S. 66 (1987), for the principle that the Eighth Amend-
ment guarantees him a proportional sentence based on his
individual circumstances are unavailing. The Supreme Court
has rejected Defendant’s argument for individualized consid-
eration, holding, “[w]e have drawn the line of required indi-
vidualized sentencing at capital cases, and see no basis for
extending it further,” Harmelin, 501 U.S. at 996. Sumner was
a death penalty case that involved the individualized capital-
sentencing doctrine, which is inapplicable here. See 483 U.S.
at 76 (“[T]he Eighth and Fourteenth Amendments require that
the sentencing authority be permitted to consider any relevant
mitigating evidence before imposing a death sentence.”
(emphasis added)).

  In summary, the safety valve in 18 U.S.C. § 3553(f) does
not violate the Eighth Amendment by limiting its benefit to
defendants who have no more than one criminal history point.

  AFFIRMED.
