United States v. Samuel Alan Morton , 144 F. App'x 804 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 10, 2005
No. 02-16809
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-80042-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL ALAN MORTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 10, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BIRCH, KRAVITCH and FARRIS *, Circuit Judges.
PER CURIAM:
This case is before us for consideration in light of United States v. Booker,
543 U.S. , 125 S. Ct. 738 (2005). Morton v. United States, U.S. , 125 S. Ct.
1338 (2005). We previously affirmed Morton’s sentence. See United States v.
Morton, 364 F.3d 1300 (11th Cir. 2004) (per curiam). On appeal, Morton had
argued that the district court erred by finding that an undercover law enforcement
officer posing as a minor qualified as a “minor” and that Morton’s contact with that
officer constituted a pattern of activity involving sexual abuse or exploitation of a
minor. Id. at 1303-04. We held that the officer qualified as a minor under the
sentencing guidelines and upheld the district court’s enhancement of Morton’s
sentence. Id. at 1304. The Supreme Court vacated our prior judgment and
remanded for further consideration in light of Booker.
Morton did not assert any error based on Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000) or any other case extending or applying the Apprendi
principle during sentencing, in his initial brief on appeal, or in a petition for
rehearing to this court.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
2
In United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam),
we addressed a similar procedural situation: a remand from the Supreme Court
with instructions to consider our opinion in light of Booker in an appeal in which
the appellant did not raise either a constitutional or Apprendi challenge to his
sentence. Id. at 1262. We applied “our well-established rule that issues . . . not
timely raised in the briefs are deemed abandoned,” reinstated our previous opinion,
and affirmed Dockery’s sentence. Id. at 1262-63 (quoting United States v. Ardley,
242 F.3d 989, 990 (11th Cir. 2001) (per curiam)). Such is the procedure we will
follow in this case because Morton failed to raise an Apprendi challenge to his
sentence in his initial brief.1
We reinstate our previous opinion and, upon reconsideration in light of
Booker, pursuant to the Supreme Court’s remand, affirm Morton’s sentence.
OPINION REINSTATED; SENTENCE AFFIRMED.
1
Even if we assumed Morton had raised a constitutional challenge to his sentence in his
initial brief, his argument that the district court erred would not merit a reversal of his sentence
under the plain error standard. On remand, Morton mentions that the district court commented
during the plea hearing that it was “obligated to sentence” under the Sentencing Guidelines. R5
at 7-8. However, such a statement is insufficient to satisfy Morton’s burden to show that there is
a reasonable probability of a different result if the district court resentenced him under an
advisory version of the guidelines. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.),
cert. denied, U.S. , 125 S. Ct. 2935 (2005). The district court neither sentenced Morton on
the low end of the guideline range nor expressed any reservation about imposing such a
sentence. R6 at 6 at 160-61; see United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
3