Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Gail Fuller, Defendant-appellant, 95 F.3d 42 (4th Cir. 1996)

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.^*