                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        February 13, 2006
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court

    UNITED STATES OF AMERICA,

         Plaintiff-Appellee,
    v.                                                    No. 05-4152
    LEON FERNANDO MARTINEZ-                     (D.C. No. 2:04-CR-255-01-DB)
    GARCIA,                                                (D. Utah)

         Defendant-Appellant.




                               ORDER AND JUDGMENT        *




Before BRISCOE, LUCERO,           and MURPHY , Circuit Judges.


         Defendant Leon Fernando Martinez-Garcia was charged in a five-count

Superceding Indictment with being an illegal alien in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(5) (“Count I”); possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) (“Count II”); possession of heroin

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (“Count III”);

possession of a firearm in furtherance of a drug trafficking crime, in violation of 21


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 924(c) (“Count IV”); and possession of five or more grams of a substance

containing cocaine base, in violation of 21 U.S.C. § 844(a) (“Count V”). Martinez-

Garcia pled guilty, with the benefit of a plea agreement, to Counts II, III, IV, and V.

In exchange for his guilty plea, the government agreed to dismiss Count I. The

district court accepted Martinez-Garcia’s pleas and sentenced him to ten years

imprisonment based on the five-year mandatory minimum sentence, to be served

consecutively with any other sentence, under Count IV, and the five-year mandatory

minimum sentence under Count V.            Martinez-Garcia appeals.      We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      Counsel for Martinez-Garcia has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and has moved to withdraw. In response, Martinez-Garcia has

filed a pro se brief identifying additional issues for appeal. Anders holds that “if

counsel finds his case to be wholly frivolous, after a conscientious examination of

it, he should so advise the court and request permission to withdraw.” Id. at 744.

Upon receiving an Anders brief and the defendant’s response thereto, we are required

to conduct “a full examination of all the proceedings” in order “to decide whether

the case is wholly frivolous.” Id.

      The Anders brief filed by Martinez-Garcia’s counsel identifies one potential

appellate issue: whether Martinez-Garcia’s sentence violates the Eighth Amendment.

After conducting an independent review of the record, we agree that this issue is


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without merit.

      We review de novo Eighth Amendment challenges to a criminal sentence.

United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005) (citation

omitted). “‘The Eighth Amendment . . . contains a ‘narrow proportionality

principle’ that ‘applies to noncapital sentences.’” Ewing v. California, 538 U.S.

11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)).

Under this narrow proportionality principle, the Eighth Amendment “does not

require strict proportionality between crime and sentence.” Id. at 23. “Rather, it

forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”

Id. (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and

concurring in the judgment)). Generally, “a sentence within the limits imposed by

statute is neither excessive nor cruel and unusual under the Eighth Amendment.”

Delacruz-Soto, 414 F.3d at 1168 (citing United States v. Hughes, 901 F.2d 830,

832 (10th Cir. 1990)). We easily conclude that Martinez-Garcia’s sentence does

not violate the Eighth Amendment because his sentence is required by statute and

is not grossly disproportionate to his crimes. See e.g., United States v. Angelos,

433 F.3d 738, 749-53 (10th Cir. 2006) (rejecting defendant’s argument that his

fifty-five year sentence, mandated under 18 U.S.C. § 924(c), violated the Eighth

Amendment).

      Martinez-Garcia identifies two additional issues: the district court applied


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the Sentencing Guidelines in a mandatory fashion, in violation of United States v.

Booker, 125 S.Ct. 738 (2005); and his plea was not voluntary because his counsel

failed to translate or otherwise explain his plea agreement. We also conclude that

these issues are without merit. First, the district court did not sentence Martinez-

Garcia under a guideline range; rather, the district court sentenced him under the

statutory mandatory minimum. 1 Booker has no applicability when a defendant

receives a mandatory minimum sentence. United States v. Payton, 405 F.3d 1168,

1173 (10th Cir. 2005). Second, at the plea hearing, the district court found that

Martinez-Garcia’s pleas were knowingly and voluntarily entered. The district

court asked whether the plea agreement was read to Martinez-Garcia, and

Martinez-Garcia’s attorney informed the court that the entire document was read

to Martinez-Garcia in Spanish. Further, the plea agreement, signed by Martinez-

Garcia on the date of the plea hearing, acknowledges that Martinez-Garcia had the

assistance of counsel in reviewing and explaining the document.

      AFFIRMED. Counsel’s motion to withdraw is GRANTED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge



1
     We note that Martinez-Garcia was sentenced on June 6, 2005, i.e., post-
Booker.

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