                                                          [DO NOT PUBLISH]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



                                             2
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



                                           3
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.




                                           4
