                                                               [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15465            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 22, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 2:10-cr-00153-LSC-HGD-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                              versus

GLENN EVAN WILLIAMS, JR.,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Alabama
                                  ________________________

                                           (August 22, 2011)

Before CARNES, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Glenn Evan Williams, Jr. appeals his conviction and sentence for being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams

contends that the government breached his plea agreement by failing to

recommend a sentence at the low end of the applicable guidelines range. Williams

requests that we vacate his sentence, remand his case for re-sentencing before a

different judge, and that we order the government to fulfill its obligations under

the plea agreement.

      We ordinarily review de novo whether the government has breached a plea

agreement. United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008).

However, because Williams failed to object at sentencing to the government’s

violation of his plea agreement, we review his claim only for plain error. Puckett

v. United States, 556 U.S. __, 129 S.Ct. 1423, 1428–29 (2009). “For this Court to

correct an error under plain error review, “(1) there must be error; (2) the error

must be plain; (3) the error must affect the appellant’s substantial rights; and (4)

the error must seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Pantle, 637 F.3d 1172, 1174 (11th Cir.

(quotation marks omitted). With respect to the third prong of plain error review,

we recently reiterated that:

      “[i]t is the defendant rather than the [g]overnment who bears the burden

                                           2
      of persuasion with respect to prejudice.” [United States v. Rodriguez,
      398 F.3d 1291, 1299 (11th Cir. 2005).] And in order to meet that
      burden, a defendant must show that the claimed error affected his
      substantial rights, which “almost always requires that the error must
      have affected the outcome of the district court proceedings.” Id.
      (quotation marks omitted). A defendant’s burden under the plain error
      standard to show prejudice is “anything but easy”—“the burden truly is
      on the defendant to show that the error actually did make a difference.”
      Id. at 1299–1300.

Pantle, 637 F.3d at 77.

      Williams argues that the government breached his plea agreement by failing

to recommend a sentence at the low end of the applicable guidelines range.

However, even though the government concedes that it breached the plea

agreement by arguing for a sentence “within” the applicable guidelines range,

Williams has conceded that it “it may be argued that the comments of [the

government] were equivocal and did not affect the sentencing court’s judgment”

in imposing his sentence. Furthermore, the district court explicitly stated that the

primary motivating factor behind the sentence was Williams’ criminal history and

the fact that he remained undeterred by his experiences in the criminal justice

system. The district court also repeatedly reminded Williams during sentencing

that it was not bound by the government’s sentencing recommendation.

      For those reasons, it is at best unclear whether the district court would have

sentenced Williams any differently had the government recommended a sentence

                                          3
at the low end of the guidelines range. Therefore, Williams has not carried his

burden of demonstrating that the government’s breach of the plea agreement

affected his substantial rights. Rodriguez, 398 F.3d at 1301 (“[W]here the effect

of an error on the result in the district court is uncertain or indeterminate ... [the

defendant] has not met his burden of showing prejudice . . . .”).

      AFFIRMED.




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