Opinion
C/A No.: 1:20-2346-HMH-SVH
01-22-2021
Donald Sylvester, #24064-265, Petitioner, v. Warden of Federal Correctional Institution—Williamsburg, Respondent.
REPORT AND RECOMMENDATION
Donald Sylvester ("Petitioner"), proceeding pro se, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 22]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 24]. Petitioner filed a response on December 28, 2020. [ECF No. 29]. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment as moot.
I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution ("FCI") in Williamsburg, South Carolina. [See ECF No. 1-1].
In April 2004, a federal grand jury in the Eastern District of Louisiana indicted Petitioner for the murder of a federal witness connected to a large-scale drug conspiracy. See United States v. Sylvester, 583 F.3d 285, 287 (5th Cir. 2009), see also United States v. Sylvester, No. 2:04-094-MLCF-SS-1 (E.D. La. 2004), ECF No. 1. In September 2006, the grand jury returned a superseding indictment, adding multiple felony counts relating to the same nexus of narcotics trafficking and murder alleged in the original indictment. Sylvester, ECF No. 91. As pertinent here, the superseding indictment charged Petitioner in Count 11 with being a felon in possession of a firearm on or about June 4, 2003, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. Id. at 6-7. The superseding indictment alleged that Petitioner had "previously been convicted of crimes punishable by imprisonment for a term exceeding one year," including two state convictions for possessing crack cocaine in 1994 and 1995, and one state conviction for attempted possession with intent to distribute crack cocaine in 2000. Id. In July 2007, the Government filed a bill of information to establish prior convictions, listing these three prior Louisiana felony convictions. Sylvester, ECF No. 170.
The court takes judicial notice of the records in Petitioner's criminal cases. Courts "may properly take judicial notice of matters of public record." Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). "We note that the most frequent use of judicial notice . . . is in noticing the content of court records." Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
At a pretrial hearing in September 2004, Petitioner testified he had two drug convictions, one by jury verdict and the other by guilty plea. Sylvester, ECF No. 256 at 21-22. Petitioner proceeded to a jury trial in August and September 2007. During trial, the following stipulation, among others, was read to the jury:
It is hereby stipulated by and between the Government and Defendant, Donald Sylvester, that the following facts are true and need not be proven beyond a reasonable doubt by the government at trial:
As to Count 11 of the indictment, the Defendant, Donald Sylvester, by June 4, 2003, had been convicted of crimes in the state of Louisiana punishable by imprisonment for terms exceeding one year, to include:
"(a) A conviction on or about March 18, 1994, in Orleans Parish under case number 367-582, "E," for possession of crack cocaine;
"(b) A conviction on or about September 12, 1995, in Orleans Parish under case number 374-103, "H," for possession of crack cocaine;
"(c) A conviction on or about November 1, 2000, in Orleans Parish under case number 411-722, "F," for attempted possession with the intent to distribute crack cocaine.
"Each of these are felony offenses and, therefore, Donald Sylvester was prohibited under both Louisiana and federal law from possessing a firearm."Sylvester, ECF No. 286 at 16-17. During trial, Petitioner also acknowledged his three prior felony convictions and the time he spent in prison, informing the jury he had three felony drug convictions by June 4, 2003. See Sylvester, ECF No. 288 at 205, 255; Sylvester, ECF No. 292 at 11-13, 65. He testified he "was sentenced to three years [in the] Department of Corrections" and was in prison from approximately June 1995 until March 1998 following one of his convictions. Sylvester, ECF No. 288 at 205. He also admitted that, due to his multiple drug convictions, he knew he could have received a life sentence after his third conviction because he was a "three-time loser." Sylvester, ECF No. 292 at 65.
The defendant has signed the stipulation, as well as counsel for the defense and counsel for the prosecution. This is Government Exhibit 91.
Petitioner's former counsel, who had represented him in state court, testified that resolving one of Petitioner's drug charges was further complicated because of his two other convictions. Sylvester, ECF No. 287 at 137-38. Petitioner testified he initially hired his counsel for the federal prosecution because he had effectively represented him in state court where Petitioner was exposed to a possible life sentence because of his third conviction in 2000. Sylvester, ECF No. 288 at 255-57, ECF No. 292 at 65.
The district court charged the jury that to find Petitioner guilty of being a felon in possession of a firearm, it must find beyond a reasonable doubt:
First, that Donald Sylvester knowingly possessed a firearm on or about June 4, 2003 . . . . Second, that before Donald Sylvester possessed the firearm, he had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, a felony; [and] Third, that the possession of the firearm was in or affecting interstate commerce; in other words, that before the defendant possessed the firearm, the gun had traveled at some time from one state to another.Sylvester, ECF No. 289 at 51.
The jury found Petitioner guilty on ten counts, including Count 11. Sylvester, ECF No. 222-1. In June 2008, the district court sentenced Petitioner to concurrent life sentences on seven of the counts and concurrent terms of years on the three others, including 120 months on Count 11. Sylvester, ECF No. 277.
Petitioner appealed his conviction and sentence to the Fifth Circuit Court of Appeals. Sylvester, ECF No. 278. On appeal, he challenged the Government's use at trial of statements he made during failed plea negotiations and also argued the evidence was insufficient to sustain his conviction on the cocaine conspiracy count. Sylvester, 583 F.3d 285. In September 2009, the Fifth Circuit affirmed the district court. Id. The United States Supreme Court denied Petitioner's requests for writ of certiorari. Sylvester, ECF No. 302.
In 2011, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Sylvester, ECF Nos. 308, 313. In his § 2255 motion, he raised nine grounds, all related to the ineffectiveness of counsel. Id. In September 2012, the district court denied the § 2255 motion. Sylvester, ECF No. 317. Sylvester appealed to the Fifth Circuit, which denied a certificate of appealability. Sylvester, ECF Nos. 320, 328.
In June 2020, Petitioner filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2241. [ECF Nos. 1, 6]. Although Petitioner requests "a new trial/de novo resentencing on all counts," [ECF No. 6 at 7], he challenges only his Count 11 conviction for being a felon in possession of a firearm. [See ECF Nos. 1, 6]. He contends that his felon-in-possession conviction should be vacated in light of Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that, to prove an offense under 18 U.S.C. §§ 924(a)(2) and 922(g), the government must prove the defendant knew he possessed a firearm and knew he belonged to a category of persons barred from possessing a firearm at the time of possession. Specifically, Petitioner argues his felon-in-possession conviction should be vacated in light of Rehaif because the superseding indictment and the jury instructions were defective. See id. II. Discussion
In the Eastern District of Louisiana, Petitioner recently filed motions for compassionate release and to reduce his sentence pursuant to Section 404 of the First Step Act of 2018 and 18 U.S.C. § 3582(c)(1)(a) and has included an argument based on Rehaif. Sylvester, ECF Nos. 332, 340. These motions remain pending. Additionally, the Fifth Circuit recently denied Petitioner's request to file a successive 28 U.S.C. § 2255 motion based on United States v. Davis, 139 S. Ct. 2319 (2019), and a claim of new evidence. See In re: Donald Sylvester, No. 20-30383 (5th Cir. Sept. 23, 2020).
A. Standard of Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
B. Habeas Corpus Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
C. Analysis
A petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2255 is filed in the sentencing court and a petition brought pursuant to 28 U.S.C. § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). "[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). Challenges to the execution of a sentence are properly raised in a § 2241 petition. Vial, 115 F.3d 1194 n.5.
Section 2255 contains a savings clause that "provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is 'inadequate or ineffective to test the legality of his detention.'" United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."). The Fourth Circuit has joined the Second, Sixth, Eighth, Ninth, and Eleventh Circuits in finding the savings clause requirements are jurisdictional. Id. at 424 n.5, 425. If the savings clause requirements are not met, the court cannot consider the petition.
The Fourth Circuit has found § 2255 inadequate and ineffective to test the legality of a conviction when:
(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;Jones, 226 F.3d at 333-34; see also Wheeler, 886 F. 3d at 429 (providing a four-part test to determine whether section 2255 is inadequate and ineffective to test the legality of a sentence, including requiring that "settled substantive law changed and was deemed to apply retroactively on collateral review"). "In evaluating substantive claims under the savings clause . . . we look to the substantive law of the circuit where a defendant was convicted." Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (citing In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011)).
(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
Because Petitioner was convicted in the Eastern District of Louisiana, the undersigned has considered the substantive law of the Fifth Circuit. Application of the Jones test in light of the Fifth Circuit's decisions indicates Petitioner can satisfy the first and third prongs as to his conviction because he can show (1) settled law established the legality of his conviction at the time of conviction and (2) the Supreme Court did not announce a new rule of constitutional law in Rehaif. See United States v. Staggers, 961 F.3d 745, 754 (5th Cir. 2020) ("Before Rehaif, we—along with every other circuit court to have considered the issue—required the United States to prove that a defendant knowingly possessed a firearm but not that the defendant knew he or she was a felon. . . . . We now know, however, that knowledge of felon status is an element of a § 922(g)(1) offense."); see also, e.g., Nixon v. United States, C/A No. 4:19-747-A, 2019 WL 6498088, at *3 (N.D. Tex. Dec. 3, 2019) (citing In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) ("the Supreme Court did not announce a new rule made retroactive in Rehaif; rather, Rehaif merely interpreted the statute, § 922(g) . . .")); United States v. Benton, C/A No. 3:12-118, 2020 WL 132276, at *2 (W.D. La. Jan. 9, 2020) ("The Court agrees with the Eleventh Circuit. While Benton filed his § 2255 motion within one year of the issuance of Rehaif, the Supreme Court did not announce a new rule of law and make that rule retroactive.").
Respondent argues that the second Jones prong is also met in that "Rehaif changed the Fifth Circuit law, such that in a prosecution under 18 U.S.C. § 922(g), the Government must now prove the defendant knew of the status which prohibited his possession of firearms." [ECF No. 23 at 8]. In support, Respondent only cites Staggers, referenced above. See id. However, in Staggers, the Fifth Circuit did not hold that Rehaif changed the substantive law in the Fifth Circuit such that the conduct of which the prisoner was convicted is deemed not to be criminal. See Staggers, 961 F.3d at 754.
The Fifth Circuit utilizes a limited application of the savings clause in petitions brought pursuant to § 2241. See, e.g., Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001) ("the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion."). The few courts in the Fifth Circuit that have addressed this issue, i.e., whether the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal, have held that Rehaif "does not establish that petitioner may have been convicted of a nonexistent offense; it only establishes the Government's burden of proof." See e.g, Byrd v. Warden, FCC Beaumont Low, C/A No. 1:19-574, 2020 WL 5797706, at *2 (E.D. Tex. July 21, 2020), report and recommendation adopted, C/A No. 1:19-574, 2020 WL 5764350 (E.D. Tex. Sept. 28, 2020); Williams v. Underwood, C/A No. 3:19-2043-M (BT), 2020 WL 1866895, at *2 (N.D. Tex. Mar. 17, 2020) (same), report and recommendation adopted, C/A No. 3:19-2043-M (BT), 2020 WL 1862576 (N.D. Tex. Apr. 14, 2020).
More commonly, courts in the Fifth Circuit have held that the Supreme Court's decision in Rehaif is not retroactively applicable on collateral review, see, e.g., United States v. Harvey, C/A No. 09-0300, 2020 WL 2516840, at *2 (W.D. La. May 15, 2020) (collecting cases), consistently dismissing Rehaif claims, like the one currently presented, for failure to meet the savings clause requirements as articulated by the Fifth Circuit. See, e.g., Hyles v. Carr, C/A No. 4:19-330-Y, 2021 WL 90118, at *2 (N.D. Tex. Jan. 8, 2021); Palacios v. Warden, F.C.C. Yazoo City, C/A No. 3:19-580-DCB-JCG, 2020 WL 7409066, at *1 (S.D. Miss. Dec. 17, 2020); McCaa v. United States, C/A No. 1:20-991-P, 2020 WL 7093912, at *3 (W.D. La. Nov. 5, 2020), report and recommendation adopted, C/A No. 1:20-991-P, 2020 WL 7083424 (W.D. La. Dec. 3, 2020); Griffin v. Warden, C/A No. 1:20-1068-P, 2020 WL 6811890, at *3-4 (W.D. La. Nov. 5, 2020) ("Because Rehaif is not retroactively applicable to cases on collateral review, Griffin cannot meet the first requirement of the savings clause. Even if Rehaif applied retroactively, Griffin's claim would still fail because Rehaif would not establish that Griffin was 'actually innocent' of the § 922(g) charge."), report and recommendation adopted, C/A No. 1:20-1068-P, 2020 WL 6811405 (W.D. La. Nov. 19, 2020); but see Jordan v. Rivers, C/A No. 3:19-685-CWR-FKB, 2020 WL 3564476, at *2 (S.D. Miss. June 3, 2020) (holding savings clause met but Rehaif claim procedurally defaulted), report and recommendation adopted, C/A No. 3:19-685-CWR-FKB, 2020 WL 3549671 (S.D. Miss. June 30, 2020). The undersigned notes that, based on this case law, to the extent Petitioner challenges the validity of his sentence rather than the validity of his conviction, he cannot meet the savings clause under the Fourth Circuit's analysis set forth in Wheeler, 886 F.3d 415, because Rehaif has not been held to be retroactive on collateral review.
Additionally, and as noted by Respondent, [ECF No. 23 at 8 n.8], this court has numerous times held that § 2241 petitions raising Rehaif claims do not meet the second prong of the Jones test in that "Rehaif did not create a substantive change in the law but simply clarified the elements that the Government would have had to prove at trial had Petitioner exercised his right to a trial." Sadler v. Bragg, C/A No. 0:20-0665-JFA-PJG, 2020 WL 6110989, at *3-4 (D.S.C. Oct. 16, 2020) (citing Gary, 954 F.3d 194) (applying Fourth Circuit law and collecting cases); see also, e.g., Midkiff v. Warden, C/A No. 8:19-2656-TMC, 2020 WL 3651591, at * 4-5 (D.S.C. July 6, 2020) (applying Fifth Circuit law); Capalbo v. Antonelli, C/A No. 1:19-1946-TMC, 2020 WL 3496641, at *1 (D.S.C. June 29, 2020) (applying Eleventh Circuit law and dismissing for lack of jurisdiction § 2241 petition challenging plea based on Rehaif), aff'd, No. 20-7063, 2020 WL 7861190 (4th Cir. Dec. 31, 2020).
Additionally, even if the Jones test could be met, here, Petitioner has failed to establish he is entitled to habeas relief under Fifth Circuit substantive law. Petitioner does not allege, argue, or present evidence that he was unaware of his status as a convicted felon. As stated by the Fifth Circuit in Lavalais:
Under Fifth Circuit precedent, the government must only establish a defendant knew of his prohibited status, not a defendant knew that he was specifically prohibited from possessing a firearm. See Rehaif, 139 S. Ct. at 2194; United States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020). Thus, the court rejects Petitioner's assertion that "[n]othing in the record suggest[s] that Petitioner knew of his status being barred from possessing a firearm." [ECF No. 29 at 2].
Demonstrating prejudice under Rehaif will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons. And they know the Government would have little trouble proving that they knew. So it is hard to imagine how their conviction or guilty plea was prejudiced by any error under Rehaif. As Justice Alito put it: "Juries will rarely doubt
that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants." Rehaif, 139 S. Ct. at 2209 (Alito, J., dissenting).960 F.3d at 184; see also Staggers, 961 F.3d at 755-56 (holding, on plain error review, that "[o]mitting the knowledge-of-felon-status element did not affect Stagger's substantial rights," where "the jury was told that Staggers was convicted in state court for possession of cocaine with intent to distribute and that he was convicted in federal court for conspiracy to distribute cocaine," and "the jury saw minutes from the state-court proceeding, which indicated that Staggers received a fifteen-year sentence"); see also id. at 756 ("Morrison does not argue that he actually lacked knowledge of his status as a felon. The record before us—but not the jury—shows that Morrison must have known that he was a convicted felon.").
The Fifth Circuit in Lavalais also noted as follows:
The circuits are already split over how Rehaif claims should be analyzed for plain error. The Fourth Circuit has held that Rehaif error is structural error, warranting reversal even in the absence of evidence of prejudice. See United States v. Gary, 954 F.3d 194, 203 (4th Cir. 2020). But we have held the opposite—that defendants must show that any error under Rehaif actually prejudiced the outcome. See United States v. Hicks, 958 F.3d 399 (5th Cir. 2020).960 F.3d at 184.
Like Lavalais and Staggers, Petitioner's substantial history of felony convictions and imprisonment indicates that when he possessed the firearm in 2003, he was aware that he had "been convicted" of at least one "crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1).
In sum, because Petitioner has not met the savings clause requirements set forth in Jones, the court does not have jurisdiction pursuant to 28 U.S.C. § 2241 to entertain his challenge to the validity of his conviction and sentence. Therefore, the undersigned recommends the court dismiss the petition without prejudice. In the alternative, if the district judge finds the court has jurisdiction, Petitioner has failed to show habeas relief is warranted on the merits of the petition. III. Conclusion and Recommendation
"A dismissal for . . . [a] defect in subject matter jurisdiction [] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits." Platts v. O'Brien, 691 F. App'x 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)).
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment [ECF No. 22] as moot.
IT IS SO RECOMMENDED. January 22, 2021
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).