Arsenio C. Brundidge v. Warden Jason C. Streeval

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6364
ARSENIO C. BRUNDIDGE,
Petitioner - Appellant,
v.
WARDEN JASON C. STREEVAL,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Norman K. Moon, Senior District Judge. (7:20-cv-00553-NKM-JCH)
Submitted: June 7, 2023 Decided: June 22, 2023
Before AGEE and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Arsenio C. Brundidge, Appellant Pro Se. Laura Taylor, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arsenio C. Brundidge, a federal prisoner, appeals the district court’s order denying
relief on his 28 U.S.C. § 2241 petition, in which he sought to challenge his conviction by
way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may
challenge his conviction in a traditional writ of habeas corpus pursuant to § 2241 if a § 2255
motion would be inadequate or ineffective to test the legality of his detention.
[Section] 2255 is inadequate and ineffective to test the legality of a
conviction when: (1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction; (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.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
We have reviewed the record and find no reversible error. Brundidge contends that
his conviction is invalid following Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019)
(holding that conviction under 18 U.S.C. §§ 922(g), 924(a) requires proof that defendant
knew of his prohibited status). However, because Brundidge was convicted under the
penalty provision found in § 924(e)(1), rather than § 924(a), Rehaif has no effect on his
conviction. Cf. In re McNeill, __ F.4th __, No. 20-159, 2023 WL 3573557, at *5-6
(4th Cir. May 22, 2023). Thus, Brundidge has not established a substantive change in the
law after which the conduct for which he was convicted—possessing a firearm after having
previously been convicted of three violent felonies or serious drug offenses—is no longer
criminal.

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We therefore affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED

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