                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                  - 2 -
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.




                               - 3 -
           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


                                  - 4 -
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




                                   - 5 -
are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




                              - 6 -
