US v. Lloyd Draper

Filing 920100525

Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7770 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LLOYD DRAPER, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Draper's attorney has three-year term of supervised release. 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. Finding The Government elected not to file a responsive brief. no reversible error, we affirm. Counsel questions whether the district court erred in calculating certain Draper's criminal did history not points, the stating presence that of a an prior conviction note attorney for Draper. A defendant may challenge at sentencing the validity of a prior conviction on the ground that he was denied counsel. (1994). Custis v. United States, 511 U.S. 485, 495 However, he bears the burden of showing that the prior United States v. Jones, 977 F.2d 105, Draper had to overcome the presumption conviction is invalid. 110-11 (4th Cir. 1992). 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 See represented, it was because he waived his right to counsel. 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. Jones, 977 F.2d at 110-11 (holding that See uncorroborated, events was inconclusive, insufficient conviction). Draper's self-serving to carry testimony burden of about distant showing invalid prior Thus, the district court did not err in overruling and considering the prior conviction in objection calculating his criminal history. We review Draper's sentence for reasonableness under an abuse of discretion standard. U.S. 38, 51 (2007). of both This the Gall v. United States, 552 review procedural Id. requires and appellate substantive consideration reasonableness of a sentence. sentence assess is procedurally the In determining whether a this court must first the This reasonable, court whether district Guidelines properly Id. calculated at 49-50. defendant's advisory range. 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 on explicitly the particular making facts an of individualized assessment based Draper's case, because Draper did not argue below for a sentence outside of his Guidelines range, we review the error for plain error. 2010). United States v. Lynn, 592 F.3d 572, 579-80 (4th Cir. 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). has failed to make such a showing. sentence reasonable. We find Draper We further find Draper's 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. district court's judgment. We therefore affirm the 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 We motion must state that a copy thereof was served on Draper. 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?