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United States v. Mendoza-Verduzco, 10th Cir. (2005)
United States v. Mendoza-Verduzco, 10th Cir. (2005)
TENTH CIRCUIT
PATRICK FISHER
Clerk
No. 04-8114
(D.C. No. 03-CR-165-D)
CARLOS MENDOZA-VERDUZCO
aka Miguel Mendoza Barajas aka
Carlios,
(D. Wyoming)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Defendant Carlos Mendoza-Verduzco was indicted, along 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
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
*
on two grounds. First, he claims that his prior convictions for operating a motor
vehicle without a license overrepresent his criminal history. But no criminal
history points were awarded for any of those convictions. Second, he claims that
an evidentiary hearing was necessary because the only evidence of the convictions
was the PSRs statement of their existence. But he neither requested such a
hearing nor objected at sentencing, so the PSRs assertions are deemed admitted.
United States v. Shinault, 147 F.3d 1266, 1277, 1278 (10th Cir. 1998).
Defendants third argument is also without merit. Safety valve
departures are limited to defendants who have no more than one criminal history
point and who proffered information to the government. 18 U.S.C. 3553(f)(1)
and (5). Defendant meets neither requirement.
Defendants cruel-and-unusual-punishment argument fails because the
sentence is required by statute and not grossly disproportionate. See
United States v. Youngpeter, 986 F.2d 349, 355 (10th Cir. 1993). And his
ineffective-assistance-of-counsel claim cannot be raised 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 brought on collateral review,
not direct appeal).
Finally, Booker is irrelevant because Defendant was sentenced under
841s mandatory minimum, not the Sentencing Guidelines. See United States v.
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Williams, 403 F.3d 1188, 1202 (10th Cir. 2005) (Murphy, J, concurring and
dissenting) (noting that mandatory minimums are unaffected by Booker);
United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005) (noting Booker is
wholly inapposite when reviewing mandatory minimum sentences).
For the foregoing reasons, Defendants sentence is AFFIRMED.
Furthermore, we have conducted our own review of the record and agree that the
appeal in this case is wholly frivolous and GRANT counsels Anders motion to
withdraw. Defendants motion for appointment of new counsel is DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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