                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 23, 2005
                             No. 04-15232                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-20939-CR-UUB



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RALSTON GRANT,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                           (September 23, 2005)


Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Ralston Grant appeals his conviction, pursuant to a jury verdict, and 121-

month sentence for conspiracy to import 100 or more kilograms of marijuana, in

violation of 21 U.S.C. § 963; conspiracy to possess 100 or more kilograms of

marijuana, in violation of 21 U.S.C. § 846; and unlawful possession of 100 or more

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). On appeal, Grant

raises two arguments for the first time. He asserts the district court erred (1) by

denying his post-trial motion for a new trial based upon the prosecutor’s improper

closing argument; and (2) by enhancing his offense level, pursuant to U.S.S.G. §

2J1.7, for committing the instant offense while on release -- a fact Grant argues had

to be found by the jury or admitted by him -- in violation of Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United

States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). After

careful review, we affirm.

      Claims of prosecutorial misconduct involve mixed questions of law and fact

and, therefore, are reviewed de novo. United States v. Noriega, 117 F.3d 1206,

1218 (11th Cir. 1997). Prosecutorial misconduct is a basis for reversing an

appellant’s conviction only if, in the context of the entire trial and in light of any

curative instruction, the misconduct may have prejudiced the substantial rights of

the accused. United States v. Cordoba- Mosquera, 212 F.3d 1194, 1198 (11th Cir.



                                          2
2000).     We give “considerable weight to the district court’s assessment of the

prejudicial effect of the prosecutor’s remarks and conduct.” Id. (internal quotation

marks and citation omitted).

         Because, in the district court, Grant did not raise a Booker challenge to the §

2J1.7 enhancement, we review his sentencing claim for plain error only.             See

United States v. Dowling, 403 F.3d 1242, 1246-47 (11th Cir. 2005). Under plain

error analysis, a defendant must show (1) an error, (2) that is plain, and (3) that

affects substantial rights. Id. at 1247. If the defendant is able to make a showing

of all three, we then may exercise our discretion to notice the error if the error

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. We have held, in the context of Booker errors, that the plain

error test is satisfied only when a defendant can show that “‘there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of a binding fashion.”’ Id. (quoting United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir.), cert. denied, --- U.S. ----, 125 S. Ct. 2935 (2005)).

         First, Grant argues that the prosecutor misstated evidence or misled the jury

in her final summation in rebuttal to the points made in Grant’s closing argument.

The purpose of closing arguments is to assist the jury in analyzing the evidence.

United States v. Iglesias, 915 F.2d 1524, 1529 (11th Cir. 1990).             In closing



                                            3
argument, an attorney may state an opinion or belief, “if the attorney makes it clear

that the conclusions he is urging are conclusions to be drawn from the evidence.”

Johns, 734 F.2d 657, 663 (11th Cir. 1984).      “Prosecutorial misconduct requires a

new trial only if we find the remarks (1) were improper and (2) prejudiced the

defendant’s substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438

(11th Cir. 1998). “A defendant’s substantial rights are prejudicially affected when

a reasonable probability arises that, but for the remarks, the outcome of the trial

would be different.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir.

1998) (quotation omitted). In making this determination, we view the district court

as being in “the best position to control the overall tenor of the trial.” Id. at 1304.

      Here, Grant highlights two portions of the prosecutor’s rebuttal closing

argument. Grant states that the challenged argument was improper because the

prosecutor implied that the government did not know where Grant was during

October2003, and that Grant went to Jamaica to pay for the marijuana during that

time. According to Grant, the government knew where he was during the relevant

time and also knew that he had not traveled to Jamaica.

      Based on our review of the entire transcript, with particular attention to the

government’s rebuttal argument, we conclude that the prosecutor’s remarks were

not calculated to mislead the jury, but were a reasonable interpretation of the



                                            4
evidence and testimony presented at trial. On this record, we can find no plain

error resulting from the challenged argument.

      We are likewise unpersuaded by Grant’s Booker argument. There are two

types of Booker errors: (1) Sixth Amendment error based upon sentencing

enhancements, imposed in a mandatory system and neither admitted by the

defendant nor submitted to a jury and proven beyond a reasonable doubt

(constitutional error); and (2) error based upon sentencing under a mandatory

guidelines system (non-constitutional, or statutory, error). See United States v.

Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005).

      Here, there was no Booker constitutional error because the district court did

not enhance Grant’s sentence based on judicial factfinding. Section 2J1.7 allows

for a three level increase for a crime committed while on release. See U.S.S.G. §

2J1.7. At no point did Grant object to the fact, stated in the PSI, that he had been

released on bond when he committed the instant offense. Accordingly, the fact of

his release status was deemed admitted. See Shelton, 400 F.3d at 1329-30. As a

result, Grant failed to meet the first prong of the plain error doctrine -- establishing

that there was error -- as to Booker constitutional error resulting from the § 2J1.7

enhancement.

      Despite the absence of a Sixth Amendment violation, because Grant was



                                           5
sentenced   under    a   mandatory    sentencing    regime,    there   was   Booker

non-constitutional, or statutory, error. United States v. Gallegos-Aguero, 409 F.3d

1274, 1277 (11th Cir. 2005) (citing Rodriguez, 398 F.3d at 1300). We have

recognized that Booker errors satisfy prongs (1) and (2) of the plain error test. See

Rodriguez, 398 F.3d at 1298-99. To satisfy the third prong of the plain error test, a

defendant must show that

      the error actually did make a difference: if it is equally plausible that
      the error worked in favor of the defense, the defendant loses; if the
      effect of the error is so uncertain that we do not know which, if either,
      side it helped the defendant loses. Where the errors could have cut
      either way and uncertainty exists, the burden is the decisive factor in
      the third prong of the plain error test, and the burden is on the
      defendant.

Id. at 1300. A defendant does not satisfy his burden under the third prong of the

plain error test when “nothing in the record indicates that the judge might have

imposed a different sentence in the new advisory regime.” Dowling, 403 F.3d at

1247. That is the case here. Grant has not shown a reasonable probability of a

different result had the district court not applied the Guidelines in a mandatory

fashion. Accordingly, he cannot establish plain error based on Booker.

      AFFIRMED.




                                         6
