* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### June 21, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-8114

v. (D.C. No. 03-CR-165-D) CARLOS MENDOZA-VERDUZCO aka Miguel Mendoza Barajas aka Carlios, Defendant - Appellant. (D. Wyoming)

ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.

Defendant Carlos Mendoza-Verduzco was indicted, alo ng with several other individuals, on a single count of conspiring to possess with intent to distribute and distribution of more than 500 grams of methamphetamine, in-2-

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He entered a guilty plea after negotiating a plea agreement. The agreement includ ed the following statement:

RELEVANT CONDUCT : 8. Defendant has been advised of § 1B1.3 of the Sentencing Guidelines regarding use of relevant con duct in establishing sentence and has read the advisement r egarding supervised release as stated in this Plea Agreement . The United States and the Defendant hereby stipulate an d agree that the Defendant’s relevant conduct in this conspiracy inv olved at least 1.5 kilograms but no more than 5 kilograms of methamphe tamine. R. Vol. I Doc. 252 at 5. The stipulated amount of methamphetamine requires a 10-year mandatory minimum sentence. 21 U.S.C. § 84 1(b)(1)(A)(viii). At the hearing on Defendant’s guilty plea the courtengaged in the following colloquy regarding the stipulated amount:

THE COURT: The quantity of drugs that you’re stipulating to, again, is sufficient to establish the ten-year mandatory minimum? [Government Counsel]: Yes, sir. THE COURT: Are you satisfied, counsel, as to the quantity of drugs involved in this matter? [Defense Counsel]: Yes. THE COURT: And what is your estimate of that drug quantity? [Defense Counsel]: Somewhere in the neighborhood of between 11⁄2 to 5 kilograms. THE COURT: Do you agree with that, Mr. Mendoza?-3- THE DEFENDANT: Yes. R. Vol. II at 33. The presentence report (PSR) agr eed with the stipulated amount and, based on two prior firearms convictions, award ed Defendant three criminal history points, placing him in criminal history cat egory II. Defendant’s final base offense level of 31—his total offense level of 34, see United States Sentencing Guidelines (USSG) § 2D1.1 (c)(3), minus three levels for acce ptance of responsibility, see USSG § 3E1.1 (a)-(b)—and his criminal history cate gory yielded a guidelines sentencing range of 121-151 mo nths. Defendant raised no objection to the PSR. At the September 30, 2004, sentencing hearing, the government moved the court to sentence Defendant to the 120-month statut ory minimum because it was only one month less than the guidelines minimum andthe minimum sentence “would eliminate any prospective issue with respectto Blakely[ v. Washington , 124 S. Ct. 2531 (2004)].” R. Vol. III at 5-6. The court granted the motion because it was a small departure, did not go below the mandatory minimum, and eliminated potential Blakelyissues. Defendant’s only objection was that application to him of § 841(b)(1)(A)’s mandatory mi nimum was unconstitutional because it amounted to cruel and unusual punishmentin violation of the Eighth Amendment. The district court declined to declare the statute unconstitutional and sentenced Defendant to 120 months’ imprisonment

.-4-

On appeal, Defendant’s counsel filed an Anders brief, see Anders v. California , 386 U.S. 738 (1967). Appellate counsel who belie ves an appeal to be “wholly frivolous, after a conscientious examinatio n,” may file a brief with the court requesting permission to withdraw, but must i nform the court of “anything in the record that might arguably support the appea l.” Id. at 744. The defendant is then given a chance to “raise any points that he chooses”; and the court, “after a full examination of all the proceedings, . . . de cide[s] whether the case is wholly frivolous.” Id. In compliance with Anders , counsel provided Defendant with a copy of his appellate brief and Defendant filed a p ro se reply and a motion for appointment of new counsel. The Anders brief and Defendant’s reply raise the following ar guments: (1) the district court erred in imposing the 10-year mandatory minimum; (2) Defendant’s criminal history was calculated incorre ctly; (3) Defendant was entitled to a “safety valve” departure under 18 U.S .C. § 3553(f); (4) the 120- month sentence is cruel and unusual; (5) the senten ce violated United States v. Booker , 125 S. Ct. 738 (2005); and (6) he was provided in effective assistance of counsel. The first argument is frivolous because Defendant s tipulated to facts requiring the district court to impose the 10-year mandatory minimum sentence. As for the second argument, Defendant objects to hi s criminal history calculation-5-

on two grounds. First, he claims that his prior co nvictions for operating a motor vehicle without a license overrepresent his crimina l history. But no criminal history points were awarded for any of those convic tions. Second, he claims that an evidentiary hearing was necessary because the on ly evidence of the convictions was the PSR’s statement of their existence. But he neither requested such a hearing nor objected at sentencing, so the PSR’s as sertions are deemed admitted. United States v. Shinault , 147 F.3d 1266, 1277, 1278 (10th Cir. 1998). Defendant’s third argument is also without merit. “Safety valve” departures are limited to defendants who have no mo re than one criminal history point and who proffered information to the governme nt. 18 U.S.C. § 3553(f)(1) and (5). Defendant meets neither requirement. Defendant’s cruel-and-unusual-punishment argument f ails because the sentence is required by statute and not grossly dis proportionate. See United States v. Youngpeter , 986 F.2d 349, 355 (10th Cir. 1993). And his ineffective-assistance-of-counsel claim cannot be r aised on this appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995)(en banc) (ineffective-assistance-of-counsel claims must be b rought on collateral review, not direct appeal). Finally, Bookeris irrelevant because Defendant was sentenced unde r § 841’s mandatory minimum, not the Sentencing Guide lines. See United States v.-6-

Williams , 403 F.3d 1188, 1202 (10th Cir. 2005) (Murphy, J, concurring and dissenting) (noting that mandatory minimums are una ffected by Booker ); United States v. Childs , 403 F.3d 970, 972 (8th Cir. 2005) (noting Bookeris “wholly inapposite” when reviewing mandatory minimu m sentences). For the foregoing reasons, Defendant’s sentence is AFFIRMED. Furthermore, we have conducted our own review of th e record and agree that the appeal in this case is wholly frivolous and GRANT c ounsel’s Anders motion to withdraw. Defendant’s motion for appointment of ne w counsel is DENIED. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge