UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7770
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LLOYD DRAPER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00799-HFF-2; 7:09-cv-70085-HFF)
Submitted: May 20, 2010 Decided: May 25, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lloyd Draper pled guilty to one count of uttering
counterfeit business checks, in violation of 18 U.S.C. § 513(a)
(2006). He was sentenced to thirty months’ imprisonment and a
three-year term of supervised release. Draper’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), identifying no meritorious grounds for appeal but
questioning whether the district court erred in calculating
Draper’s criminal history points and whether Draper’s sentence
is reasonable. Draper has filed a supplemental pro se brief.
The Government elected not to file a responsive brief. Finding
no reversible error, we affirm.
Counsel questions whether the district court erred in
calculating Draper’s criminal history points, stating that a
certain prior conviction did not note the presence of an
attorney for Draper. A defendant may challenge at sentencing
the validity of a prior conviction on the ground that he was
denied counsel. Custis v. United States, 511 U.S. 485, 495
(1994). However, he bears the burden of showing that the prior
conviction is invalid. United States v. Jones, 977 F.2d 105,
110-11 (4th Cir. 1992). Draper had to overcome the presumption
that the state court informed him of his right to counsel as it
was required by statute to do, and that, if he was not
represented, it was because he waived his right to counsel. See
2
Parke v. Raley, 506 U.S. 20, 28-34 (1992). Although counsel
stated at sentencing that Draper did not recall having counsel
or waiving his right to counsel for the challenged conviction,
Draper offered no affirmative evidence to rebut the presumption
that he had counsel or signed a waiver of counsel form. See
Jones, 977 F.2d at 110-11 (holding that uncorroborated,
inconclusive, self-serving testimony about distant events was
insufficient to carry burden of showing invalid prior
conviction). Thus, the district court did not err in overruling
Draper’s objection and considering the prior conviction in
calculating his criminal history.
We review Draper’s sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. In determining whether a
sentence is procedurally reasonable, this court must first
assess whether the district court properly calculated the
defendant’s advisory Guidelines range. Id. at 49-50. This
court then must consider whether the district court considered
the factors in 18 U.S.C. § 3553(a) (2006), analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. “Regardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
3
must place on the record an ‘individualized assessment’ based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (citation omitted).
Although the district court procedurally erred when it
imposed Draper’s sentence without explicitly making an
individualized assessment based on the particular facts of
Draper’s case, because Draper did not argue below for a sentence
outside of his Guidelines range, we review the error for plain
error. United States v. Lynn, 592 F.3d 572, 579-80 (4th Cir.
2010). Even if we assumed that the district court’s lack of
explanation of Draper’s sentence constituted an obvious error in
violation of Carter, Fed. R. Crim. P. 52(b) requires Draper to
also show that the district court’s lack of explanation had a
prejudicial effect on the sentence imposed. See Puckett v.
United States, 129 S. Ct. 1423, 1433 n.4 (2009). We find Draper
has failed to make such a showing. We further find Draper’s
sentence reasonable. See United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007) (recognizing this court applies an appellate
presumption of reasonableness to a within-Guidelines sentence).
In accordance with Anders, we have reviewed the record
in this case and Draper’s pro se supplemental brief and have
found no meritorious issues for appeal. We therefore affirm the
district court’s judgment. This court requires that counsel
inform Draper, in writing, of the right to petition the Supreme
4
Court of the United States for further review. If Draper
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Draper. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5