                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 March 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-21007
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

KYLE MERCHANT

                      Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:02-CR-368-3
                      --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Kyle Merchant appeals his guilty-plea conviction of aiding

and abetting in the possession with intent to distribute 50 or

more grams of cocaine base.    He seeks to challenge his sentence

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

     Merchant asserts that the merits of his appeal should be

addressed despite an appeal waiver in his plea agreement.         He

argues that the appeal waiver, which was entered before the

Supreme Court issued its decision in Booker, was not informed and


     *
       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this opinion should not be published and is not precedent except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. 03-21007
                                -2-

voluntary because the waiver was based on the erroneous advice

that the Sentencing Guidelines were mandatory and that the

district court was required to issue a sentence in conformity

with those Guidelines.   This argument is unavailing.    See United

States v. Burns, 433 F.3d 442, 450-51 (5th Cir. 2005).

Merchant’s appeal waiver is enforceable.

     As part of his plea agreement, Merchant waived his right to

appeal on any ground set forth in 18 U.S.C. § 3742, with the

exception of an upward departure.    Merchant’s sentence did not

constitute an upward departure.     See United States v. McKinney,

406 F.3d 744, 746-47 (5th Cir. 2005).     Accordingly, we dismiss

Merchant’s appeal because it is barred by the waiver contained in

the plea agreement.

     APPEAL DISMISSED.
