                                    UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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