                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3663
                                   ___________

United States of America,             *
                                      *
            Appellee,                 * Appeal from the United States
                                      * District Court for the
      v.                              * District of Nebraska.
                                      *
Fabian Aguilar-Martinez, also known * [UNPUBLISHED]
as Flaco,                             *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: May 15, 2006
                                Filed: May 22, 2006
                                 ___________

Before BYE, HANSEN, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Fabian Aguilar-Martinez appeals his sentence under United States v. Booker,
543 U.S. 220 (2005). A jury convicted Aguilar-Martinez of conspiracy to distribute
and possession with intent to distribute 500 grams or more of a mixture containing a
detectable amount of methamphetamine and carrying a firearm during a drug
trafficking offense. The district court1 imposed consecutive sentences of 262 months
and sixty months, respectively.

      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
       Aguilar-Martinez argues the district court erred by applying the United States
Sentencing Guidelines as mandatory in violation of Booker.2 However, Aguilar-
Martinez fails to point to any portion of the sentencing transcript which demonstrates
the district court applied the guidelines as mandatory, based its sentence upon an
irrelevant factor, failed to consider a relevant factor, or made a clear error of
judgment. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). The
sentencing transcript reveals the district court specifically considered the factors under
18 U.S.C. § 3553(a) and considered the guidelines to be advisory pursuant to our
remand in United States v. Fabian A. Martinez, No. 04-4034 (June 8, 2005). Aguilar-
Martinez argues the district court erred by imposing an enhancement based upon facts
not found by a jury. However, this argument is untenable under Booker’s remedial
scheme because the district court recognized the guidelines as advisory. See United
States v. Idriss, 436 F.3d 946, 950-51 (8th Cir. 2006). The sentence, within the
properly calculated guideline range, is presumed to be reasonable. See United States
v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005). Aguilar-Martinez has failed to rebut
this presumption. We therefore affirm the sentence imposed by the district court.
                         ______________________________




      2
         This argument only applies to the sentence on the conspiracy conviction, as
the firearm conviction carries a statutory minimum sentence of sixty months. Booker
only applies to sentences based upon an application of the guidelines; it does not apply
to mandatory minimum sentences imposed pursuant to statute. See United States v.
Rojas-Coria, 401 F.3d 871, 874 n.4 (8th Cir. 2005).

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