                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 28, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 06-40117
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAMES BOYD HAMILTON, also known as Bubba,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 4:04-CR-185-3
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     James Boyd Hamilton pleaded guilty to conspiracy to

manufacture, distribute, or possess with intent to manufacture,

distribute, or dispense methamphetamine.    He was sentenced to 71

months of imprisonment, four years of supervised release, and a

$100 special assessment.    Because the Government does not seek to

invoke Hamilton’s appeal waiver, it is not binding.     See United

States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).




     *
       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this opinion should not be published and is not precedent except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. 06-40117
                                  -2-

     Hamilton argues on appeal that his post-Booker** sentence

was unconstitutional under Booker because it was increased based

on facts that were not admitted by him or found by a jury.   He

contends that the district court’s use of the Guidelines violated

the Sixth Amendment, even if the district court labeled them as

advisory only, because “[t]he district court continues to use the

guidelines in a mandatory fashion.”

     By rendering the Guidelines advisory only, Booker eliminated

the Sixth Amendment concerns that prohibited a sentencing judge

from finding all facts relevant to sentencing.    United States v.

Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).    Hamilton was sentenced under a post-Booker advisory

guidelines system, and there is no indication in the record that

the district court erroneously treated the Guidelines as

mandatory.    Therefore, Hamilton’s argument lacks merit.

     AFFIRMED.




     **
          United States v. Booker, 543 U.S. 220 (2005).
