FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 13, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14412

Non-Argument Calendar

________________________

D. C. Docket No. 07-14024-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WESLEY J. EVANS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 13, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Wesley Evans appeals his lifetime term of supervised release for using the
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internet to entice a minor to engage in sexual activity, transporting a minor to

engage in sexual activity, and attempting to persuade a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction, in violation of 18

U.S.C. § 2422(a), (b),(e) and 18 U.S.C. § 2251(a). On appeal, Evans argues that

the district court imposed a substantively unreasonable sentence by ordering that:

(1) he be placed on supervised release for life; and (2) he be prohibited from

possessing adult sexual materials as a special condition. He argues that there was

no indication in the record that a lifetime term of supervised release was necessary,

and we have upheld sentences without lifetime terms of supervised release in child

pornography cases. He also argues that the restriction from the use of adult sexual

materials will prevent him from making a living upon his release from prison and

is unnecessary according to the record. 

As a preliminary matter, we do not address Evans’s contention that the

special condition of his supervised release, prohibiting him from possessing adult

sexual materials, is unreasonable because it will prevent him from working. Evans

has not offered any caselaw or legal argument supporting his contention, nor has

he provided any citations to the record pertaining to his future career and how it

might relate to adult pornography. When a party fails to provide arguments on the

merits of an issue, and makes only passing reference to it in the initial brief, the
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argument is deemed waived and we need not address it. United States v. Gupta,

463 F.3d 1182, 1195 (11th Cir. 2006), cert. denied, 127 S. Ct. 2446 (2007).

Evans characterizes his appeal as one based on the reasonableness of his

sentence, and, ordinarily, we review a sentence imposed by a district court for

reasonableness, see United States v. Talley, 431 F.3d 784, 785, 787 (11th

Cir.2005). However, if Evans did not object to the term of supervised release in

the district court, we should only reverse for plain error. See United States v. Zinn,

321 F.3d 1084, 1088 (11th Cir. 2003). We have not addressed in a published

opinion the interplay between the reasonableness standard of review and the plain

error review that we conduct when a party fails to raise an issue before the

sentencing court. Regardless, Evans cannot prevail under either standard. 

We have discretion to correct an error under the plain error standard where

(1) an error occurred, (2) the error was plain, (3) the error affected substantial

rights, and (4) the error seriously affects the fairness, integrity or public reputation

of judicial proceedings. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir.

2005). An error cannot be plain unless the error is “clear under current law.”

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000). 

The district court did not plainly err by imposing a lifetime term of

supervised release because such a term was within both the advisory guideline
 Evans’ request for oral argument is denied. 1

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range and the statutory range. In Rita v. United States, 127 S. Ct 2456 (2007), the

Court held that a sentence within the guidelines range is one endorsed by United

States Sentencing Commission and thus probably reasonable. Additionally, this

Court has upheld lifetime terms of supervised release in the case of defendants

involved in child pornography. See, e.g., United States v. Moriarty, 429 F.3d 1012

(11th Cir. 2005). Accordingly, we affirm.

AFFIRMED.1