UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 94-6922

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GAIL FULLER, Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-92-13-A, CA-94-834-AM)

Submitted: March 22, 1996 Decided: August 30, 1996

Before WIDENER and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gail Fuller, Appellant Pro Se. Mark Joseph Hulkower, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Mrs. Fuller raised several points in her motion, filed pursuant to 28 U.S.C. § 2255, to vacate, correct, or set aside her sentences. In general, Mrs. Fuller alleged ineffective assistance of counsel, improper application of the sentencing guidelines, use of evidence seized in violation of the Fourth Amendment, denial of a fair trial because certain evidence was not presented, conflict of interest, and denial of a fair trial because the court denied her a continuance. We affirm the denial of these aspects of Mrs. Fuller's petition on the opinion of the district court.

Another question has come to our attention, however. The district court charged the jury in accordance with circuit precedent that the element of materiality in 18 U.S.C. § 1001 was a question for the court. United States v. Gaudin, 63 U.S.L.W.

4611 (U.S. June 19, 1995) decided that materiality was a matter for the jury, not the court. Mrs. Fuller did not raise this question on direct appeal or on habeas review. Had this been a direct appeal, it might have been reversible subject to a plain and harmless error analysis. Teague v. Lane, 489 U.S. 288 (1989), however, and its progeny prevent us from addressing this issue because it is a new constitutional rule of criminal procedure.

Accordingly, the judgment of the district court is AFFIRMED.*

* Appellant's motion for appointment of counsel is denied.