                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4230


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

REGINALD DARWIN MORTON,     a/k/a   Jay,    a/k/a     Boogie,   a/k/a
Jason, a/k/a Novacaine,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:08-cr-00024-JPJ-PMS-14)


Submitted:   November 29, 2012             Decided:    December 17, 2012


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Helen Eckert Phillips, ALLEN, KOPET & ASSOCIATES, PLLC, Bristol,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney,   Jennifer  R.   Bockhorst,  Assistant  United  States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           A   federal     jury    convicted        Reginald    Darwin     Morton    of

conspiracy to possess with intent to distribute and distribute

more than fifty grams of cocaine base (“crack”) and less than

500 grams of cocaine, in violation of 21 U.S.C. § 846 (2006).

The district court initially sentenced Morton to 240 months of

imprisonment.      On    appeal    from       the   judgment,     we    affirmed    the

conviction,      but     vacated     the       sentence     and        remanded     for

resentencing in light of United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc).          On resentencing, the court sentenced

Morton to 210 months of imprisonment, and he again appeals.                         For

the reasons that follow, we affirm. *

           Morton first argues that the district court erred in

failing to apply the Fair Sentencing Act (“FSA”) to determine

the statutory penalties applicable to Morton.                     However, in his

opening brief, Morton fails to properly raise this issue and has

therefore forfeited appellate review.                 See Eriline Co. S.A. v.

Johnson,   440    F.3d    648,     653     n.7      (4th   Cir.    2006)    (finding

conclusory single sentence in brief “insufficient to raise on




     *
       In addition to the arguments raised by appellate counsel,
Morton filed a pro se supplemental brief raising additional
issues. We have considered the issues raised in Morton’s pro se
brief and conclude that they lack merit.



                                          2
appeal     any     merits-based        challenge     to    the     district    court’s

ruling”).

               Even were we to consider this issue, however, Morton

is not entitled to relief.                 When considering whether preserved

procedural sentencing errors require resentencing, we apply a

harmless error standard.                 See United States v. Boulware, 604

F.3d 832, 838 (4th Cir. 2010).                    Accordingly, we may affirm a

sentence despite such an error if the government demonstrates

that the error “did not have a substantial and injurious effect

or influence on the result and we can say with fair assurance

that”    the     district      court’s    judgment   was    not    affected     by   the

error.    Id. (internal quotation marks and alterations omitted).

               Prior to the enactment of the FSA, a defendant who was

held responsible for more than fifty grams of crack was subject

to a term of imprisonment between ten years and life.                           See 21

U.S.C. § 841(b)(1)(A) (2006).               Under the FSA, however, in order

to be subject to a statutory mandatory minimum of ten years of

imprisonment, a defendant must be found to have been responsible

for 280 grams or more of crack.                 See 21 U.S.C.A. § 841(b)(1)(A)

(West Supp. 2012).              If the defendant was responsible for less

than     280     but    more    than     twenty-eight      grams    of    crack,      the

applicable statutory penalties range from five to forty years of

imprisonment.          See 21 U.S.C.A. § 841(b)(1)(B) (West Supp. 2012).

In   Dorsey      v.    United    States,    567    U.S.   ___,     132   S.   Ct.    2321

                                            3
(2012), the Supreme Court determined that the FSA applies to

defendants who committed their offenses prior to the effective

date of the Act, August 3, 2010, but who were sentenced after

that date.

               Here, the jury determined that Morton was responsible

for more than fifty grams of crack under the statute, and he was

resentenced after August 3, 2010.                     Therefore, the applicable

statutory       penalties        were    between   five      and    forty    years     of

imprisonment.             At     the    resentencing       hearing,     however,      the

district court erroneously stated that the statutory mandatory

minimum was ten years of imprisonment.                     While this was error, we

conclude that the Government has established that the error was

harmless.

               Morton next argues on appeal that the district court

erred in failing to distinguish between crack/cocaine base and

powder cocaine in calculating the drug weight.                      As Morton failed

to raise this argument before the district court, we decline to

consider it on appeal.                 See Muth v. United States, 1 F.3d 246,

250 (4th Cir. 1993) (“[I]ssues raised for the first time on

appeal generally will not be considered . . . [unless] refusal

to consider the newly-raised issue would be plain error or would

result    in    a   fundamental         miscarriage    of     justice.”).        In   any

event, it is clear that the district court correctly applied the

mandate     rule     in        concluding   that      it    could     not   on   remand

                                            4
reconsider the drug weight for which Morton was responsible as

Morton    failed      to    challenge       the        drug   weight       in    his     initial

appeal.    See United States v. Susi, 674 F.3d 278, 283 (4th Cir.

2012) (mandate rule forecloses litigation of issues decided by

the district court but foregone on appeal or otherwise waived).

            Finally, Morton argues that the district court abused

its     discretion          by     failing        to     adequately         consider         his

post-sentencing rehabilitation on resentencing.                                 Again, Morton

has    failed    to   preserve       this    argument         by    failing       to    properly

raise it in his opening brief.                      See Johnson, 440 F.3d at 653

n.7.     Regardless, we conclude that the district court properly

considered       Morton’s        arguments    related         to    his    post-sentencing

conduct.              The        court       explicitly             discussed           Morton’s

rehabilitation,         along       with     other        factors      that        the    court

considered important, when sentencing Morton to the low end of

the advisory Guidelines range to which the district court had

already downwardly departed.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions        are    adequately          presented      in    the        materials

before    this    court      and    argument      would       not    aid    the    decisional

process.

                                                                                        AFFIRMED



                                              5
