                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  August 15, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2288
          v.                                             (D. of N.M.)
 JORGE MUNOZ-CHAVEZ,                            (D.C. No. 07-CR-01292-BB-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Jorge Munoz-Chavez pleaded guilty in federal court to the following three

counts: (1) conspiracy to possess with intent to distribute 100 kilograms or more

of marijuana, (2) possession with intent to distribute 100 kilograms or more of

marijuana, and (3) reentry of a removed alien. He was sentenced to a total of 120

months in prison. After Munoz-Chavez filed a timely notice of appeal, his



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
counsel filed an Anders 1 brief and moved to withdraw his representation. Munoz-

Chavez did not file any materials on his own behalf. Because we agree that

Munoz-Chavez has no meritorious claims on appeal, we GRANT his counsel’s

request to withdraw, and AFFIRM the sentence imposed by the district court.

                                I. BACKGROUND

      Prior to sentencing, the probation office completed a presentence

investigation report (PSR) for Munoz-Chavez’s case. The PSR concluded Munoz-

Chavez had a total offense level of 23 and a criminal history category of IV.

Based on this offense level and criminal history, the PSR calculated a United

States Sentencing Guidelines (USSG) range of 70 to 87 months. The PSR

concluded, however, that 21 U.S.C. § 841(b)(1)(B) imposed a mandatory

minimum sentence of 120 months in prison. 2 The district court adopted the PSR

without change and sentenced Munoz-Chavez to 120 months in prison. 3

                                 II. DISCUSSION

      On appeal, Munoz-Chavez argues the district court should have imposed a

Guidelines sentence of between 70 and 87 months, rather than the mandatory


      1
          Anders v. California, 386 U.S. 738 (1967).
      2
        USSG § 5G1.1(b) (2006) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline sentence.”).
      3
         Specifically, the court sentenced him to a term of 120 months for counts 1
and 2, and a term of 70 months for count 3. These terms run concurrently, for a
total of 120 months in prison.

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minimum sentence of 120 months. We review a federal criminal sentence for

reasonableness, giving deference to the district court under “the familiar abuse-

of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 594 (2007). But

we review a court’s interpretation of statutes and the Guidelines de novo. United

States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).

      We agree with Munoz-Chavez’s counsel that there are no non-frivolous

grounds on which to challenge the sentence. First, the district court properly

concluded the provision of 21 U.S.C. § 841(b)(1)(B) requiring a minimum ten-

year sentence applies in this case. Section 841(b)(1)(B)(vii) prescribes a

sentencing range for defendants guilty of possessing with intent to distribute 100

kilograms or more of marijuana. Under this section, a defendant must be

sentenced to a minimum of 120 months in prison if the defendant committed the

offense after a prior conviction for a felony drug offense had become final.

      Here, Munoz-Chavez pleaded guilty to violating § 841(b)(1)(B)(vii).

Furthermore, he had previously pleaded guilty to possessing with intent to

distribute 50 kilograms or more of marijuana. And this previous felony

conviction became final before he committed the offense at issue in this appeal.

Therefore, the district court did not err in concluding the ten-year mandatory

minimum provision applies to Munoz-Chavez.

      Second, Munoz-Chavez does not have any non-frivolous grounds to

challenge the constitutionality of § 841(b)(1)(B). We have unequivocally held

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mandatory minimum sentences are constitutional. See, e.g., United States v.

Harris, 447 F.3d 1300, 1307 (10th Cir. 2006) (“Booker 4 does not preclude a court

from imposing a statutory minimum established by Congress based on a

defendant’s record of prior convictions.”); United States v. Hatch, 925 F.2d 362,

363 (10th Cir. 1991) (rejecting defendant’s argument that mandatory minimum

sentences violate the Eighth Amendment or the Due Process Clause of the Fifth

Amendment).

      Third, Munoz-Chavez is not eligible for statutorily-authorized relief from

his mandatory minimum sentence. Under certain limited circumstances, a district

court may impose a Guidelines-range sentence, rather than a mandatory minimum

sentence, for violations of 21 U.S.C. § 841. See 18 U.S.C. § 3553(f). To be

eligible for this exception, the defendant must not “have more than one criminal

history point, as determined under the sentencing guidelines.” Id. § 3553(f)(1).

Here, Munoz-Chavez has a total of seven criminal history points. Because

Munoz-Chavez is not eligible for this exception, the district court did not err in

imposing the ten-year mandatory minimum sentence.




      4
          United States v. Booker, 543 U.S. 220 (2005).

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                            III. CONCLUSION

      After a careful review of the record, we conclude Munoz-Chavez has no

meritorious claims on appeal. We therefore GRANT counsel’s request to

withdraw and AFFIRM the sentence imposed by the district court.

                              Entered for the Court,


                              Timothy M. Tymkovich
                              United States Circuit Judge




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