UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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 
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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 
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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