United States v. Florwer Lizano, Jr. , 706 F. App'x 804 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLORWER CARLIN LIZANO, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. R. Bryan Harwell, District Judge. (4:16-cr-00649-RBH-1)
Submitted: December 19, 2017 Decided: December 21, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence, South Carolina, for
Appellant. Beth Drake, United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Florwer Carlin Lizano, Jr., pled guilty to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The district court imposed a 48-
month sentence, which was a downward variance from Lizano’s Sentencing Guidelines
range of 57 to 71 months’ imprisonment. Lizano timely appeals, challenging the district
court’s computation of his criminal history score. For the reasons that follow, we affirm.
Lizano asserts that his prior South Carolina convictions for driving under the
influence should not have been counted in the computation of his criminal history score
because the record does not show that, at the time of those convictions, he was afforded
his Sixth Amendment right to counsel. The presentence report indicated with respect to
those convictions that Lizano waived attorney representation and that no further
information was available.
While a defendant may challenge the validity of a prior conviction on the ground
that he was denied counsel, see Custis v. United States, 511 U.S. 485, 495-96 (1994),
Lizano bears the “heavy burden” of showing that the prior conviction is invalid on this
basis. United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992); see United States v.
Hondo, 366 F.3d 363, 365 (4th Cir. 2004) (“[E]ven when an arguable Custis challenge is
raised, the defendant bears an especially difficult burden of proving that the conviction
was invalid.”). The determination of whether counsel has been waived is reviewed de
novo. Hondo, 366 F.3d at 365.
Specifically, Lizano bore the burden of overcoming the presumption that the state
court informed him of his right to counsel, as it was required by statute to do, and that, if
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he was not represented, it was because he waived his right to counsel. * See Parke v.
Raley, 506 U.S. 20, 28-34 (1992) (holding “presumption of regularity that attaches to
final judgments makes it appropriate” for defendant to have burden of showing
irregularity of prior plea). Lizano clearly did not meet this burden in this case. He
submitted neither documentary evidence nor testimony at the sentencing hearing to
establish that he was convicted, in either instance, in a manner that violated his
constitutional right to counsel. Cf. Jones, 977 F.2d at 110-11 (explaining why defendant’s
“vague [and] inconclusive testimony” about distant events was insufficient to carry his
burden of showing invalidity of prior conviction). We conclude that, in the absence of
any contrary evidence, the district court properly rejected Lizano’s claim based on the
presumption that the relevant South Carolina law was followed in the challenged cases.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
*
A criminal defendant’s right to counsel is protected by the Sixth Amendment to
the United States Constitution. South Carolina law also has codified the specific
mandatory process that must be employed before a defendant is permitted to waive his
right to counsel. See S.C. Code Ann. § 17-3-10 (2014) (“Any person entitled to counsel
under the Constitution of the United States shall be so advised and if it is determined that
the person is financially unable to retain counsel then counsel shall be provided upon
order of the appropriate judge unless such person voluntarily and intelligently waives his
right thereto.”).
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