                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 18, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,
               Plaintiff-Appellee,                       No. 10-4043
          v.                                    (D.C. No. 08-CR-00092-TS-1)
 GARY DUANE DALEY,                                         (D. Utah)
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


      After examining counsel’s Anders brief and the appellate record, this panel

has determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Following the filing of criminal charges against him, Appellant pled guilty

to possessing methamphetamine with the intent to distribute. Although the

district court calculated the applicable Sentencing Guidelines range to be seventy

to eighty-seven months of imprisonment, the court varied below the Guidelines



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and imposed a sentence of sixty months, the statutory mandatory minimum for

Appellant’s offense. See 21 U.S.C. § 841(b)(1)(B). On appeal, Appellant’s

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

explaining why counsel believes there to be no reasonable grounds for appeal.

Appellant and the government were both given the opportunity to file a response

to the Anders brief, but neither did so.

      When defense counsel files an Anders brief, we are required to conduct “a

full examination of all the proceedings, to decide whether the case is wholly

frivolous.” Id. at 744. Thus, “defense counsel who file an Anders brief generally

should ensure that copies of all possibly relevant transcripts are included in the

record on appeal” so the record will be “adequate . . . to satisfy both counsel’s

obligation to his or her client and our appellate review obligation under Anders.”

United States v. Delacruz-Soto, 414 F.3d 1158, 1161 (10th Cir. 2005).

      In this case, despite our repeated admonitions and reminders to counsel of

his obligations in connection with this appeal, counsel has failed to file an

adequate appendix that includes all relevant transcripts. Nevertheless, we have

obtained the record online and fully reviewed all of the district court proceedings,

including all transcripts. Having done so, we agree with counsel that Appellant

has no non-frivolous grounds he could raise on appeal.

      Nothing in the plea agreement or plea colloquy suggests a valid basis on

which Appellant could challenge the entry of his plea of guilty. As for

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Appellant’s sentence, we see no meritorious ground on which Appellant could

challenge the length or constitutionality of the mandatory minimum sentence 1 he

received. See United States v. Garcia-Fuentes, 250 F. App’x 886, 887 (10th Cir.

2007) (finding no meritorious basis for a defendant to appeal the imposition of a

sixty-month mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B));

United States v. Hatch, 925 F.2d 362, 363 (10th Cir. 1991) (rejecting the

argument that mandatory minimum sentences violate the Eighth and Fifth

Amendments); United States v. Angelos, 433 F.3d 738, 750-53 (10th Cir. 2006)

(rejecting an Eighth Amendment challenge to a mandatory sentence of fifty-five

years for drug and firearm offenses committed by a defendant with no prior adult

criminal history).

      Our thorough review of the record persuades us that Appellant can raise no

meritorious issue on appeal. We therefore GRANT counsel’s motion to withdraw

and DISMISS the appeal.

                                              Entered for the Court

                                              Monroe G. McKay
                                              Circuit Judge

      1
        Although there are two possible ways to receive a sentence below this
mandatory minimum, the record does not suggest that Appellant was qualified for
either. See 18 U.S.C. § 3553(e) (permitting a below-Guidelines sentence “[u]pon
motion of the Government” where a defendant has substantially assisted “in the
investigation or prosecution of another person who has committed an offense”);
id. § 3553(f) (permitting disregard of statutory minimums for certain offenses
where, inter alia, the defendant did not possess a firearm in connection with the
offense).

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