[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11719 JAN 09 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00227-CR-WBH-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRAYLING BOLSTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 9, 2008)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Grayling Bolston appeals his 110-month sentence imposed at the low-end of
the applicable guideline range before the Supreme Court issued its decision in
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He
argues that the mandatory application of the Guidelines affected his substantial
rights under the plain error standard of review because there was a reasonable
probability that the court would have imposed a lesser sentence if it was not bound
to sentence him within the applicable guideline range.
Because Bolston did not object to his sentence based upon the principles set
out in Booker, we review the district court’s sentence under the plain error standard
of review. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “An
appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (quotation omitted). “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
The first two prongs of the four-prong plain error test are met in all
pre-Booker sentencing cases, regardless of whether the defendant alleges a
constitutional or statutory error. Id. at 1298-99 (constitutional error); United States
v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005) (statutory error). This is so
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even though the error was not plain at the time of sentencing. Rodriguez, 398 F.3d
at 1299.
In evaluating the third prong, we ask “whether there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge . . . .” Rodriguez, 398 F.3d at
1301. The burden is on the defendant to make this showing of prejudice. Id. at
1299. We have held, however, that a defendant satisfied this standard where the
district court “displayed frustration with its inability to impose a sentence lower
than the Guideline minimum,” asking “if there was any way we can make the
sentence shorter . . . .” United States v. Martinez, 407 F.3d 1170, 1173-74 (11th
Cir. 2005) (quotations and alteration omitted); see also United States v. Thompson,
422 F.3d 1285, 1301-02 (11th Cir. 2005) (holding that the defendant satisfied his
burden where the district court found that the sentence it was forced to impose was
“not a fair sentence”). However, where “uncertainty exists, the burden is the
decisive factor in the third prong of the plain error test, and the burden is on the
defendant.” Rodriguez, 398 F.3d at 1300. Applying this standard, we have held
that the defendant did not satisfy his burden under the third prong where the
“record indicate[d] no frustration on the part of the district court with the severity
of the Guidelines sentence” and the district court did not “indicate a desire to
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impose a lesser sentence . . . .” United States v. Underwood, 446 F.3d 1340, 1344
(11th Cir.), cert. denied, 127 S.Ct. 225 (2006). Similarly, we have held that a
sentence at the low-end of the applicable guideline range, by itself, is not enough
for a defendant to demonstrate a reasonable probability of a lesser sentence
because it is “too speculative, and more than speculation is required. ” United
States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005).
In the instant case, Bolston cannot satisfy his burden to demonstrate that
there was a reasonable probability that the court would have imposed a different
sentence if the Guidelines were advisory. Upon review of the record and the
parties’ briefs, we discern no reversible error.
AFFIRMED.
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