                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 05-11438                    ELEVENTH CIRCUIT
                                                                          MAY 16, 2006
                                Non-Argument Calendar
                        -------------------------------------------- THOMAS K. KAHN
                                                                            CLERK

                    D.C. Docket No. 04-00081-CR-T-17-MAP

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                        versus

JOSE BERNARDO BARRAGAN,

                                                     Defendant-Appellant.


                        ---------------------------------------
                   Appeal from the United States District Court
                      for the Middle District of Florida
                       ----------------------------------------

                                   (May 16, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      Jose Bernardo Barragan appeals his 262-month sentence, imposed pursuant

to his guilty plea, for possession with intent to distribute five kilograms or more of
cocaine, in violation of 46 U.S.C. App. § 1903(a) & (g), 21 U.S.C.

§ 960(b)(1)(B)(ii), and 18 U.S.C. § 2. No reversible error has been shown; we

affirm.

      We are aware that Barragan’s written plea agreement contains a sentence

appeal waiver. The government suggests that Barragan waived the right to appeal

his sentence based on the plea agreement and on his “obvious close familiarity

with” the agreement. But, at the guilty plea hearing, the magistrate judge did not

indicate expressly that Barragan was waiving the right to appeal his sentence

under most circumstances: the appeal waiver, indeed, was not mentioned at all.

See United States v. Bushert, 997 F.2d 1343, 1351-53 (11th Cir. 1993) (declining

to determine that defendant knowingly and voluntarily waived right to appeal

sentence where it was “not manifestly clear that [defendant] understood he was

waiving his appeal rights”). We cannot say, on this record, that the government

could carry its burden of showing that Barragan knowingly and voluntarily waived

the right to appeal his sentence. We, thus, consider the merits of Barragan’s

appeal.

      Barragan argues that, under United States v. Booker, 125 S.Ct. 738 (2005),

the district court violated his Fifth and Sixth Amendment rights by applying the

Sentencing Guideline range in a mandatory fashion and by failing to consider its

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authority to “depart downward” from the prescribed sentencing range. We review

constitutional challenges to a sentence de novo. United States v. Chau, 426

F.3d 1318, 1321 (11th Cir. 2005). Barragan was sentenced after Booker was

decided: nothing in the record indicates that the district court misunderstood its

authority to apply the Sentencing Guidelines in an advisory, rather than a

mandatory, fashion. See Booker, 125 S.Ct. at 767 (instructing that, although

district courts are not bound to apply the guidelines, district courts must consult

the guidelines and take them into account). And Barragan presented several

possible mitigating factors during sentencing: his age, health, family situation, and

economic situation. The district court simply rejected these factors in favor of the

guideline sentence. No constitutional error occurred.

      AFFIRMED.




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