                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2006

                                                          Charles R. Fulbruge III
                           No. 05-11081                           Clerk
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

FABIAN MARTINEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:04-CR-205-16
                       --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Fabian Martinez

raises arguments that are foreclosed by United States v. Austin,

432 F.3d 598, 599-600 (5th Cir. 2005), which held that the

application of the remedial opinion of United States v. Booker,

543 U.S. 220 (2005), to a sentencing hearing where the underlying

offense was committed pre-Booker does not violate constitutional

due process or ex post facto requirements.    In light of the

foregoing, we assume, arguendo only, that the appeal waiver does

not bar the instant appeal.   The Government’s motion for summary



     *
       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this opinion should not be published and is not precedent except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. 05-11081
                               -2-

affirmance is GRANTED, and the judgment of the district court is AFFIRMED.
