United States v. Connor , 273 F. App'x 245 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE CONNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:04-cr-0225-CMH-4; 1:05-cv-1434-CMH)
Submitted: March 20, 2008 Decided: April 15, 2008
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gene Connor, Appellant Pro Se. Michael J. Lovelace, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gene Connor1 appeals from the district court’s order
denying his 28 U.S.C. § 2255 (2000) motion. We previously granted
a certificate of appealability on the following claims: (1) whether
the district court erred in failing to consider Connor’s reply
brief; (2) whether the district court erred in failing to consider
Connor’s motion to amend; and (3) whether Connor received
ineffective assistance when his attorney failed to move for a
downward departure based on his prior discharged state sentence.
After further briefing, we affirm the order of the district court.
All of Connor’s claims rested on his contentions that he
was convicted of reckless driving in Virginia and served a six
month sentence. Specifically, Connor claimed first that this state
conviction was improperly used at his federal sentencing both as
relevant conduct and to calculate his criminal history category.2
In addition, Connor asserted that his attorney should have moved
for a downward departure under U.S. Sentencing Guidelines Manual
(“USSG”) § 5G1.3, comment. (n.7) (2003)3 (discussing departures
1
Although Appellant spells his name “Conner” in his court
filings, the official docket sheet identifies him as “Connor.”
2
When Connor was arrested for drug possession, he attempted to
escape, and a car chase ensued. This arrest allegedly formed the
basis for his state prosecution for reckless driving and the
instant federal prosecution for drug offenses.
3
In 2004, this commentary section was deleted, and the
Commission instead included USSG § 5K2.23, a policy statement
containing similar language.
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based on “discharged term[s] of imprisonment”), because the prior
conviction was used to enhance his sentence based upon reckless
endangerment during flight. See USSG § 3C1.2.
Following our issuance of a certificate of appealability,
the Government filed a brief and attached evidence that Connor had
not, in fact, been convicted of reckless driving. Instead, that
charge was nolle prossed by the state court. As such, the
Government asserts that all of Connor’s claims on appeal, which
were each dependent on this conviction, are without merit.
Connor responded, conceding that he was not convicted of
reckless driving. Thus, he has withdrawn his claim that his
attorney rendered ineffective assistance by failing to object to
the inclusion of the conviction in his criminal history. However,
he asserts that he was, in fact, convicted in Virginia for “driving
recklessly after having been found to be a habitual offender” for
actions during the incident giving rise to his federal prosecution
and that he was sentenced to six months in prison. Thus, he still
claims that his attorney was ineffective for failing to move for a
downward departure, given that Connor’s sentence was enhanced based
upon the same conduct underlying his state conviction. However,
the document submitted by Connor in support of his contentions
shows that his state charge was reduced to a misdemeanor charge of
operation of a motor vehicle by a habitual offender.
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The district court did not explicitly address the issues
raised in either Connor’s reply brief or his motion to amend his
§ 2255 motion. The reply brief detailed Connor’s claim that his
attorney should have moved for a downward departure under USSG
§ 5G1.3 due to his previous prison term for reckless driving. In
his motion to amend, Connor sought to add the claim that his
attorney failed to object when the conduct underlying his reckless
driving conviction was used to enhance his sentence, while the
conviction itself was also counted in the calculation of Connor’s
criminal history category. Given Connor’s current admission that
he was not convicted of reckless driving, any error by the district
court was merely harmless. Both the reply brief and the motion to
amend rested on incorrect factual allegations, and this conclusion
is conceded by Connor.
Thus, the only remaining issue on which a certificate of
appealability was granted is Connor’s substantive claim that his
attorney was ineffective for failing to move for a USSG § 5G1.3
departure. For the first time in his reply brief on appeal, Connor
states that his attorney should have moved for such a departure
based upon his conviction and prison sentence for operating a motor
vehicle after being declared a habitual offender. This Class 1
misdemeanor does not require proof of reckless or dangerous
driving. Instead, it only requires evidence that the defendant
operated a motor vehicle after being declared a habitual offender
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and having his driving privileges revoked. See Va. Code Ann.
§ 46.2-357 (Michie 2005).
This factual allegation is untimely raised for the first
time in a reply brief on appeal. See Yousefi v. INS, 260 F.3d 318,
326 (4th Cir. 2001) (declining to consider claim raised for the
first time in reply brief). Moreover, even examining the issue on
the merits, the relevant conduct that increased Connor’s sentence
was different conduct that happened to occur at the same time as
the conduct underlying his state conviction. Thus, his prior
offense was not the basis for an increase in his offense level.
See USSG § 5G1.3(b) (providing for adjustment only where the
conduct underlying the prior conviction was “the basis for an
increase in the offense level of the instant offense”), comment.
(n.7) (discussing discharged terms of imprisonment). Driving by a
habitual offender would not come close to satisfying the
requirements of USSG § 3C1.2, and the reckless endangerment
enhancement does not require any evidence that the defendant was
not driving with a proper license. Thus, any motion for a downward
departure by counsel would have been without merit. Accordingly,
Connor is unable to show that he received ineffective assistance of
counsel.
Therefore, we affirm the district court’s order. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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