
    UNITED STATES of America, Plaintiff-Appellee, v. James Boyd HAMILTON, also known as Bubba, Defendant-Appellant.
    No. 06-40117.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Aug. 28, 2006.
    Heather Harris Rattan, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Texas, Plano, TX, for PlaintiffAppellee.
    Donald Lee Bailey, Sherman, TX, for Defendant-Appellant.
    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).

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, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     
      
      
        United. States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
     