United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 06-40117
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES BOYD HAMILTON, also known as Bubba,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-185-3
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
James Boyd Hamilton pleaded guilty to conspiracy to
manufacture, distribute, or possess with intent to manufacture,
distribute, or dispense methamphetamine. He was sentenced to 71
months of imprisonment, four years of supervised release, and a
$100 special assessment. Because the Government does not seek to
invoke Hamilton’s appeal waiver, it is not binding. See United
States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
*
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this opinion should not be published and is not precedent except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. 06-40117
-2-
Hamilton argues on appeal that his post-Booker** sentence
was unconstitutional under Booker because it was increased based
on facts that were not admitted by him or found by a jury. He
contends that the district court’s use of the Guidelines violated
the Sixth Amendment, even if the district court labeled them as
advisory only, because “[t]he district court continues to use the
guidelines in a mandatory fashion.”
By rendering the Guidelines advisory only, Booker eliminated
the Sixth Amendment concerns that prohibited a sentencing judge
from finding all facts relevant to sentencing. United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Hamilton was sentenced under a post-Booker advisory
guidelines system, and there is no indication in the record that
the district court erroneously treated the Guidelines as
mandatory. Therefore, Hamilton’s argument lacks merit.
AFFIRMED.
**
United States v. Booker, 543 U.S. 220 (2005).