Case: 12-13162       Date Filed: 04/16/2014       Page: 1 of 5
                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ______________________

                                     No. 12-13162
                                ______________________

                         D. C. Docket No. 1:09-cr-20519-JLK-3

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                            versus

SPENCER SAINT-ELOIDE,

                                                                   Defendant-Appellant.

                                  ____________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                                ____________________

                                       (April 16, 2014)

Before MARCUS, Circuit Judge, and COOGLER * and BOWEN,** District Judges.


PER CURIAM:

*
   Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
**
  Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
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       A jury convicted Spencer Saint-Eloide of one count of conspiracy to possess

with intent to distribute cocaine and one count of possession with intent to

distribute cocaine, violations of 21 U.S.C. § 846(a) and § 841(a)(1), respectively.

Upon determining that Saint-Eloide’s advisory guideline range was 78 to 97

months imprisonment, the district court sentenced him to serve 78 months on each

count to run concurrently. On appeal, Saint-Eloide argues that the district court

denied his right of allocution at sentencing. 1

       Where a defendant does not object to the district court’s denial of the right

of allocution, we review for manifest injustice. United States v. Quintana, 

, 1231-32 (11th Cir. 2002). The manifest injustice standard is equivalent

to plain error review. 

Under the plain error standard, we will reverse

only if: (1) there is error (2) that is plain, (3) that affected the defendant’s

substantial rights, and (4) that seriously affected the fairness, integrity, or public

reputation of a judicial proceeding. United States v. Perez, 

, 583

(11th Cir. 2011).



1
 In denying Saint-Eloide’s appointed counsel’s motion to withdraw after filing an Anders brief,
see Anders v. California, 

, 

(1967), this Court directed counsel to
brief three issues. In brief and at oral argument, Saint-Eloide’s counsel abandoned two of the
three issues: (1) the reasonableness of his sentence given the district court’s failure to discuss the
18 U.S.C. § 3553(a) factors and failure to hear from Saint-Eloide’s personal witnesses; and (2)
the denial of a minor role reduction under the sentencing guidelines.




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      At sentencing, the district court must “address the defendant personally in

order to permit the defendant to speak or present any information to mitigate the

sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). For purposes of this appeal, assuming

arguendo that Saint-Eloide has established the first two prongs of the plain error

rule, Saint-Eloide nevertheless has the burden of demonstrating that the error

affected his substantial rights. See 

.

      We have held that the denial of the right of allocution presumptively affects

a defendant’s substantial rights only where the possibility of a lower guidelines

sentence exists. 

(cited sources omitted). Here, Saint-Eloide was

sentenced at the bottom end of the applicable guideline range. Therefore, no

presumption of prejudice arises. Saint-Eloide claims nonetheless that the Supreme

Court’s opinion in United States v. Booker, 

, 

(2005),

requires us to presume prejudice even in cases where a defendant receives the

lowest possible guidelines sentence. Saint-Eloide points out that his guideline

range is advisory, whereas the guideline range in pre-Booker cases was mandatory

for district courts. He further argues that in a post-Booker world, the bottom of a

guideline range is no longer the lowest term of imprisonment permissible. We do

not think this makes any difference.




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      Saint-Eloide’s request that we presume prejudice in his case fails for a few

reasons. For one thing, we have held in binding post-Booker precedent that, on

plain error review, “it is the defendant rather than the government who bears the

burden of persuasion with respect to prejudice.” United States v. Rodriguez, 

, 1299 (11th Cir. 2005) (alterations omitted). In the second place, even

before Booker, a defendant who received a bottom-end guidelines sentence could

demonstrate, under certain circumstances, that the denial of his right of allocution

affected his substantial rights. Pre-Booker, in cases where a defendant who was

not permitted to allocute nevertheless received the lowest possible guidelines

sentence, the burden was on the defendant to demonstrate manifest injustice.

(concluding that the defendant could not show

manifest injustice “because he was sentenced to the lowest term of imprisonment

permissible under the guidelines and he is unable to articulate anything that he

could have said that could have driven the sentence below the lowest end of the

guideline range” (emphasis added)). Post-Booker, the burden remains on the

defendant to show manifest injustice, that is, that the district court would have

sentenced below the advisory guideline range. Prejudice is only presumed when

the defendant is not sentenced at the bottom end of the applicable guideline range.

      In this case, Saint-Eloide has not presented evidence or argument to show

that the district court might have been inclined to sentence below the bottom of the




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advisory guideline range. Accordingly, he has failed to show that any error in

denying his right of allocution affected his substantial rights.

      Because Saint-Eloide has failed to demonstrate plain error, we affirm the

judgment of the district court.

      AFFIRMED.




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