                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         _________________________           FILED
                                                    U.S. COURT OF APPEALS
                                No. 03-12499          ELEVENTH CIRCUIT
                                                          JUNE 7, 2006
                            Non-Argument Calendar
                                                       THOMAS K. KAHN
                         __________________________
                                                            CLERK

                      D.C. Docket No. 02-14072-CR-DMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

ANTHONY LATERZA,

                                                   Defendant-Appellant.
                         __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                        __________________________

                                 (June 7, 2006)

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      This case is on remand from the Supreme Court for further consideration in

light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Laterza v.
United States, 543 U.S. 1106, 125 S.Ct. 1006 (Mem.) (2005). In our previous

decision, United States v. Laterza, No. 03-12499 (11th Cir. March 17, 2004)

(unpublished opinion), which the Supreme Court has vacated, we affirmed the 60

months prison sentence appellant received for manufacturing more than 100

marijuana plants, in violation of 21 U.S.C. § 841(a)(1). Appellant now contends

that Booker requires that we vacate his sentence and remand the case for

resentencing because the district court sentenced him pursuant to the mandatory

guidelines sentencing scheme based on facts neither admitted by him nor found by

the jury beyond a reasonable doubt.

       We reject appellant’s contention. First, appellant did not raise it in his

initial brief on appeal, and his failure is fatal. See, e.g., United States v. Ardley,

242 F.3d 989 (11th Cir. 2001). Second, and alternatively, the district court did not

commit a Booker error at all. The court sentenced appellant to the mandatory

minimum sentence required by law – 60 months imprisonment – because the jury

found beyond a reasonable doubt that appellant’s offense involved more than 100

marijuana plants. See 21 U.S.C. § 841(b)(1)(B).1

       We have considered this appeal in light of United States v. Booker, and find



       1
         Appellant did not qualify for the “safety-valve” provision of 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2. United States v. Laterza, No-03-12499, at 6-7.

                                                2
no basis for disturbing our previous decision. That decision is therefore

reinstated2.

      SO ORDERED.




      2
          All outstanding motions are denied as MOOT in light of the court’s ruling.

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