                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               JUNE 27, 2006
                                No. 05-15877                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                       D. C. Docket No. 03-00022-CR-HL-7

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

SHARON NETTLES,
a.k.a. Sharon Lewis,

                                                           Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                                (June 27, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     On January 20, 2004, appellant pled guilty to conspiracy to possess more
than 15 counterfeit access devices with intent to defraud, in violation of 18 U.S.C.

§ 1029(a)(3), and the district court, on June 24, 2004, sentenced her to prison for

125 months. She appealed, and we vacated her sentence, and remanded the case

for resentencing, because the court, prior to imposing sentence, failed to give her

notice of its intent to fashion a sentence above the sentence range prescribed by the

Guidelines, i.e., 18-24 months imprisonment. Uhited States v. Nettles, No. 04-

13669 (decided March 31, 2005).

       On remand, the court held a new sentencing hearing, and imposed the same

sentence without making reference to an “upward departure.” This appeal

challenges that sentence.

       Appellant asks that we vacate her sentence and remand the case for

resentencing on three grounds: (1) United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), barred the court from departing upward from

the Guidelines sentence range; (2) the court once again failed to give appellant

advance notice of its intent to depart upward; and (3) the court erred in ordering

restitution in an amount greater than that relating to the offense of conviction and

the parties’ oral stipulation.

       Appellant’s first point is meritless. Booker instructs that the district courts

treat the Guidelines as discretionary, rather than mandatory, and after consulting



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the Guidelines, consider the sentencing objectives set out in 18 U.S.C. § 3553(a).

In this case, the district court did precisely as Booker instructs.

      Appellant’s second point lacks merit because appellant well knew that the

court would depart upward from the Guidelines sentence range. If there was error,

it was clearly harmless.

      Appellant’s third point also lacks merit. In the plea agreement appellant

made with the Government, she waived the right to appeal her sentence “except in

the case of an upward departure from the guidelines pursuant to [U.S.S.G. §§]

5K2.0 and 4A1.3 and any claim of ineffective assistance of counsel,” which is not

implicated here. At the Fed. R. Crim. P. 11 hearing, the court determined that

appellant executed this waiver freely and voluntarily. It therefore bars her attack

on the court’s restitution order.

      AFFIRMED.




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