UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4444

DWAYNE CLARK, a/k/a Bill,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-96-192-S, CA-99-1233)

Submitted: December 30, 1999

Decided: January 20, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Fred Warren Bennet, Jason D. Tulley, BENNETT & NATHANS,
L.L.P., Greenbelt, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Christine Manuelian, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Dwayne Ivin Clark appeals from the district court's orders granting
in part and denying in part his motion filed pursuant to 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1999), along with the resulting sentence,
and denying his motion for reconsideration. Finding no reversible
error, we affirm.

Clark pled guilty to being part of a drug conspiracy from 1986 until
May 1996. At sentencing, Clark was assessed criminal history points
for various prior offenses, including a 1989 state conviction for pos-
session with intent to distribute heroin and a 1991 state conviction for
failure to file a state tax return. Trial counsel did not raise any objec-
tions to Clark's criminal history score.

Clark filed a direct appeal, raising an unrelated issue, and we
affirmed his sentence.1 He filed a timely § 2255 motion, alleging that
trial counsel rendered ineffective assistance by failing to argue that
the 1989 drug conviction and the 1991 tax evasion conviction were
related offenses to the conspiracy offense and therefore should not
have counted toward his criminal history score pursuant to USSG
§ 4A1.2.2 The district court granted relief as to the drug conviction,
but denied relief as to the tax evasion conviction.

We find no error in the district court's decision. Neither party cites
to any cases, nor could we find any, which address Clark's substan-
tive claim that a prior state conviction for tax evasion should be con-
sidered a related offense under USSG § 4A1.2 in a federal drug
conspiracy prosecution. To succeed on a claim of ineffective assis-
_________________________________________________________________
1 See United States v. Clark, No. 97-4502 (4th Cir. May 1, 1998)
(unpublished).
2 U.S. Sentencing Guidelines Manual (1995).

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tance of counsel, a defendant must show: (1) that his counsel's perfor-
mance fell below an objective standard of reasonableness; and (2) that
counsel's deficient performance was prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).

Under the first prong of Strickland, a defendant must demonstrate
that counsel's performance fell below an objective standard of reason-
ableness under "prevailing professional norms." Id. at 688. In evaluat-
ing counsel's performance, there is "a strong presumption that
counsel's conduct falls within the wide range of reasonable profes-
sional assistance." Id. at 689. In addition, we do not engage in hind-
sight; rather, we evaluate the reasonableness of counsel's
performance within the context of the circumstances at the time of the
alleged errors. Id. at 690.

To satisfy the second prong of Strickland, a defendant must dem-
onstrate that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694. "A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." Id. However, it is
inappropriate to grant relief solely because the outcome would have
been different absent counsel's deficient performance. See Lockhart
v. Fretwell, 506 U.S. 364, 369-70 (1993). Instead, we will only grant
relief under the second prong of Strickland if the "result of the pro-
ceeding was fundamentally unfair or unreliable." Lockhart, 506 U.S.
at 369.

Because there is no settled law on the subject, counsel did not act
unreasonably by failing to recognize the issue posed by Clark or by
not developing an innovative argument in his favor. The Constitution
does not require that a defendant be represented by the most creative
counsel; only an effective one. Moreover, we find nothing in the
record suggesting that the result of the underlying proceeding was
"fundamentally unfair or unreliable." Even if counsel had objected to
the assessment of criminal history points based on the conviction for
tax evasion, there is no guarantee that the challenge would have been
successful.

We therefore affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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