                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit


No. 05-2075

                               UNITED STATES,

                                  Appellee,

                                       v.

                              HIAWATHA BURKS,

                          Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                                    Before

                         Boudin, Chief Judge,
                  Selya and Lipez, Circuit Judges.




     Marie E. Hansen and Willey Law Offices on brief for appellant.
     Robert Clark Corrente, United States Attorney, Donald C.
Lockhart, and Adi Goldstein, Assistant United States Attorneys, on
brief for appellee.



                               August 1, 2006
           Per Curiam. Defendant-appellant Hiawatha Burks appeals

from the sentence imposed after this court granted the parties'

joint motion for remand pursuant to United States v. Booker, 543

U.S. 220 (2005).     On re-sentencing, the district court imposed a

sentence of 120 months, below the originally-imposed sentence of

168 months, the bottom of the applicable guidelines range.                 On

appeal,    Burks    maintains    that      the   120-month    sentence      is

unreasonable, notwithstanding that it is the sentence that defense

counsel requested at the re-sentencing hearing.1

           Under Booker, sentences are reviewed for reasonableness,

regardless of whether they fall within or outside of the advisory

guidelines range.     See United States v. Smith, 445 F.3d 1, 3 (1st

Cir. 2006).     The emphasis in reviewing post-Booker claims that a

sentence   is   unreasonable    is   "on   the   provision   of   a   reasoned

explanation, a plausible outcome and - where these criteria are met

- some deference to different judgments by the district judges on

the scene." United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st

Cir. 2006) (en banc).

           I. Mitigating Factors

           Appellant faults the district court for failing to give

adequate consideration to certain mitigating factors, including:

age of the defendant (25 years old at the time of the offense),


     1
       It is unnecessary for us to decide whether, given defense
counsel's request, Burks has waived the right to challenge the
length of the sentence on reasonableness grounds.

                                     -2-
education and vocational skills, past substance abuse and recent

rehabilitation, and family ties and responsibilities (as father of

a four-year-old son).        "That a factor is discouraged or forbidden

under the guidelines does not automatically make it irrelevant when

a   court   is   weighing     the    statutory      factors     apart    from    the

guidelines.      The guidelines - being advisory - are no longer

decisive as to factors any more than as to results." Smith, 445

F.3d at 5.

            At   the    re-sentencing           hearing,    defendant     did    not

specifically ask the court to consider most of the mitigating

factors that he focuses on in the present appeal.                  Therefore, he

may have waived his claims based on those factors.                      See United

States v. Mayes, 332 F.3d 34, 37 n.4 (1st Cir. 2003).                  Nonetheless,

the sentencing transcripts indicate that the court considered the

mitigating factors that Burks relies upon on appeal.                   In imposing

a sentence well below the applicable guidelines range, the court

took into consideration Burks' participation in education and other

programs during his incarceration.               With respect to Burks' youth

and his family ties, the court reasonably determined that those

were not grounds for imposing a more lenient sentence in this case.

See Smith, 445 F.3d at 6 - 7 (reversing as unreasonable a sentence

less than half the minimum range where district court had relied

upon   defendant's     age   but    the    defendant       "although    young,   has

accumulated a significant criminal history").


                                          -3-
          II. Career Offender Status

          Appellant further argues that the sentence imposed is

unreasonable because of the unjustified extent of the disparity

between the sentences imposed on a defendant designated as a

"career offender" and a defendant not so designated.                We have held

that such disparity results "from the policy choices made by

Congress and implemented by the Sentencing Commission. See 28

U.S.C. § 994(h)," and that failure to reduce a sentence on that

basis is not unreasonable. United States v. Caraballo, 447 F.3d 26,

28 (1st Cir. 2006).       Moreover, in this case, the court at re-

sentencing    expressly   "looked   .     .   .   at   what   the   Defendant's

sentencing range would have been without the career offender

provision."

          Independent of the reasonableness of his sentence, Burks

challenges his career offender designation on Sixth Amendment

grounds, objecting that he did not admit to more than one prior

conviction to support his designation as a "career offender," and

that there had been no finding by a jury that his prior offenses

were "crimes of violence."     As an initial matter, it appears that

Burks waived this argument.     At the original sentencing hearing,

defense counsel stated that "there is not a dispute . . . that this

Defendant was appropriately placed in criminal history category

[VI] because he's a career offender within the meaning of the

guidelines."   And the "Joint Motion for Remand in Light of Booker"


                                    -4-
states   that   "Burks   does   not   challenge   .   .   .   the    sentencing

guidelines calculations of the district court."

           Even if the issue was not waived, however, we have held

that under Almendarez-Torres v. United States, 523 U.S. 224 (1998),

the Sixth Amendment does not require the fact and nature of prior

state convictions to be proved to a jury beyond a reasonable doubt.

Jimenez-Beltre,    440   F.3d   at    520.   "Whatever        the    continuing

viability of Almendarez-Torres, we have previously held that we are

bound to follow it until it is expressly overruled."                Id.

           III. Crack/Powder Disparity Under Guidelines

           Finally, appellant challenges his sentence on the ground

that the degree of disparity in the guidelines' treatment of crack

versus powder cocaine is unjustified and creates racial disparity

in sentencing.     He also argues that in his case, the disparity

resulted in a sentence that was longer than necessary to achieve

the goals of sentencing set forth in § 3553(a).                     As with the

disparity argument regarding the career offender provision, the

crack-to-powder ratio argument does not demonstrate that Burks'

sentence is unreasonable.         First, this court has held that a

sentencing court is without authority to make "a categorical,

policy-based rejection of the 100:1 ratio." United States v. Pho,

433 F.3d 53, 62 (1st Cir. 2006).        Second, in arriving at a below-

guidelines sentence, the district court here specifically took into




                                      -5-
account "what the range would have been had the crack cocaine in

this case been treated as powder."

            Independent of reasonableness, Burks also argues that the

government was required to charge and prove that the substance

involved in the charged offense was "crack."              However, Burks

specifically admitted in his written plea agreement, and confirmed

at the change-of-plea hearing, that "the substance involved . . .

is cocaine base, also known by the street name of crack cocaine."

"A defendant waives his right to challenge sentencing factors when

he stipulates to the facts supporting the sentencing factor."

United States v. Soto-Cruz, 449 F.3d 258, 262 (1st Cir. 2006).

            None   of   appellant's    arguments   provides   grounds   for

finding that the sentence imposed following remand was unreasonably

high.    The factors that Burks faults the court for not considering

were either considered by the court or not raised by Burks.2            The

court gave a "reasoned explanation" for the sentence it imposed,

and the 120-month sentence is "a plausible outcome." Jimenez-

Beltre, 440 F.3d at 519.      The sentence is affirmed.




     2
       In addition to the arguments mentioned above, Burks argued
that a lower sentence was warranted because he had been denied the
additional one-level reduction for acceptance of responsibility on
account of a change of counsel. However, the court specifically
took that fact into account at re-sentencing.

                                      -6-
