                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-30320
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RONNIE MERRILL, also known as Manny, also
known as Mannie,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 02-CR-277-5-L
                       --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Ronnie Merrill challenges the sentence he received following

his guilty-plea conviction for distributing less than 100 grams

of heroin and less than 50 grams of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1).   He first argues that the waiver-of-

appeal provision in his plea agreement is unenforceable.       Because

the record reveals that the district court did not specifically

advise Merrill that he had waived the right to appeal his

sentence as part of his plea, Merrill is correct that the waiver-

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-30320
                                 -2-

of-appeal provision in his plea agreement does not bar the

instant appeal.    See FED. R. CRIM. P. 11(b)(1)(N); United States

v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).

     Merrill next argues, for the first time on appeal, that the

adjustments he received for being a career offender and for

possessing a firearm under the Sentencing Guidelines violated his

constitutional rights following United States v. Booker, 125

S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531

(2004).    The argument is reviewed for plain error.    United States

v. Mares, ___ F.3d ___, 2005 WL 503715 at *7 (5th Cir. Mar. 4,

2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,

2005).

     In light of Booker, the district court erred in computing

Merrill’s sentence based on judicially determined facts under a

mandatory guidelines system, and that error was both plain and

obvious.    Mares, 2005 WL 503715 at *7-*8.   Nevertheless, because

Merrill has not demonstrated that the district court would have

reached a different conclusion had it known that the Guidelines

were advisory only, he has failed to demonstrate that the error

affected his substantial rights.**   Id. at **8-9.     Accordingly,

Merrill has failed to carry his burden of demonstrating plain

error, and the district court’s judgment is AFFIRMED.


     **
       Merrill’s argument that Mares was wrongly decided is
unavailing. Absent en banc reconsideration or a superseding
contrary decision of the Supreme Court, one panel may not
overrule the decision of a prior panel. United States v. Ruff,
984 F.2d 635, 640 (5th Cir. 1993).
