                                                    [DO NOT PUBLISH]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).

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