                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               September 7, 2005
                               No. 04-11132                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                 D. C. Docket No. 03-00198-CR-ORL-22-KRS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

YOSVANY JESUS CASTRO,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                             (September 7, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     This appeal of Yosvany Jesus Castro regarding the propriety of his
conviction and sentence for robbery and possession of a firearm during a crime of

violence is on remand from the Supreme Court of the United States for further

consideration in the light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738

(2005). See Castro v. United States, — U.S. —, 125 S. Ct. 1986 (2005). We

previously affirmed Castro’s conviction. United States v. Castro, No. 04-11132

(11th Cir. Dec. 8, 2004). After reconsideration, we affirm Castro’s sentence,

reinstate our previous opinion with the exception of Part III.D., and replace Part

III.D. with the following discussion.

      Castro did not object during his sentencing hearing to the mandatory

application by the district court of the Sentencing Guidlines. Our review,

therefore, is limited to plain error. United States v. Duncan, 400 F.3d 1297, 1301

(11th Cir. 2005). “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.” Id. The district court “applied the Guidelines

as if they were mandatory, and that constitutes error which is clearly contrary to

the law at the time of appeal after Booker.” Id. at 1304 (internal quotations

omitted). Castro, however, “cannot meet the third prong of plain error review

because he cannot show that this error affected his substantial rights.” Id.



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      Castro “bears the burden of persuasion with respect to prejudice.” Id. To

meet this burden, Castro must show “a reasonable probability of a different result if

the guidelines had been applied in an advisory instead of binding fashion.” Id.

The district court sentenced Castro at the low end of the Guideline range. Such a

sentence, however, “establishes only that the court felt that sentence was

appropriate under the mandatory guidelines system. It does not establish a

reasonable probability that the court would have imposed a lesser sentence under

an advisory regime.” United States v. Fields, 408 F.3d 1356, 1361 (11th Cir.

2005). Castro also quotes statements by the district court that it considered the

Guidelines binding. These statements show that the district court erred by

applying the Guidelines as mandatory, but they do not establish a reasonable

probability that the district court would have imposed a different sentence if it

applied the Guidelines as advisory. Castro, therefore, “cannot meet his burden.”

Duncan, 400 F.3d at 1304.

      After reconsideration, we again affirm.

      OPINION REINSTATED IN PART; AFFIRMED.




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