* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 13, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 05-4152LEON FERNANDO MARTINEZGARCIA, Defendant-Appellant. (D.C. No. 2:04-CR-255-01-DB) (D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Defendant Leon Fernando Martinez-Garcia was chargedin 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”); pos session 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 traffickin g crime, in violation of 21-2-

U.S.C. § 924(c) (“Count IV”); and possession of fiv e or more grams of a substance containing cocaine base, in violation of 21 U.S.C. § 84 4(a) (“Count V”). MartinezGarcia pled guilty, with the benefit of a plea agreemen t, to Counts II, III, IV, and V. In exchange for his guilty plea, the government agr eed 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 minim um sentence, to be served consecutively with any other sentence, under Count IV, and the five-year mandatory minimum sentence under Count V. Martinez-Garcia ap peals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Counsel for Martinez-Garcia has filed a brief pursu ant to Anders v. California , 386 U.S. 738 (1967), and has moved to withdraw. Inresponse, 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, afte r a conscientious examination of it, he should so advise the court and request permi ssion 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 proceedin gs” in order “to decide whether the case is wholly frivolous.” Id. The Anders brief filed by Martinez-Garcia’s counsel identifie s one potential appellate issue: whether Martinez-Garcia’s sentenc e violates the Eighth Amendment. After conducting an independent review of the recor d, we agree that this issue is-3-

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 Ei ghth Amendment “does not require strict proportionality between crime and se ntence.” Id. at 23. “Rather, it forbids only extreme sentences that are ‘grossly di sproportionate’ to the crime.” Id. (quoting Harmelin , 501 U.S. at 1001 (Kennedy, J., concurring in partand 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 senten ce 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 de fendant’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 applied1 We note that Martinez-Garcia was sentenced on June 6, 2005, i.e., postBooker

. -4- the Sentencing Guidelines in a mandatory fashion, i n violation of United States v. Booker , 125 S.Ct. 738 (2005); and his plea was not volunt ary because his counsel failed to translate or otherwise explain his plea a greement. We also conclude that these issues are without merit. First, the distric t court did not sentence MartinezGarcia under a guideline range; rather, the distric t court sentenced him under the statutory mandatory minimum. 1 Bookerhas no applicability when a defendant receives a mandatory minimum sentence. United Stat es 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 voluntar ily 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 a greement, signed by MartinezGarcia on the date of the plea hearing, acknowledge s that Martinez-Garcia had the assistance of counsel in reviewing and explaining t he document.
AFFIRMED. Counsel’s motion to withdraw is GRANTED.

Entered for the Court
Mary Beck Briscoe Circuit Judge