US v. Lloyd Draper
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
May 20, 2010
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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).
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
Thus, the district court did not err in overruling and considering the prior conviction in
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
reasonableness of a sentence. sentence assess is procedurally the
In determining whether a this court must first the This
calculated at 49-50.
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
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
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
contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
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