NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                        No. 16-2210
                                       _____________

                           UNITED STATES OF AMERICA

                                             v.

                                 ENRIQUE SALDANA,
                                               Appellant
                                   ______________

                            On Appeal from the District Court
                                    of the Virgin Islands
                            (D.C. Criminal No. 3-09-cr-00032)
                        District Judge: Honorable Curtis V. Gomez
                                     ______________

                                     Argued: May 2, 2017
                                      ______________

       Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.

                           (Opinion Filed: December 20, 2017)

Omodare B. Jupiter [ARGUED]
Office of Federal Public Defender
4094 Diamond Ruby
Suite 5
Christiansted, St. Croix, VI 00820

Counsel for Appellant
Nelson L. Jones
David W. White [ARGUED]
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802

Counsel for Appellee
                                      ______________

                                         OPINION*
                                      ______________
GREENAWAY, JR., Circuit Judge.

       Appellant Enrique Saldana challenges a judgment revoking his supervised release

and resentencing him to eighteen months’ imprisonment. On appeal, he challenges: (1)

the sufficiency of evidence supporting a supervised release revocation; (2) the

classification of one of his supervised release violations; (3) the District Court’s denial of

his motion to continue the supervised release revocation hearing; (4) the District Court’s

decision to reopen the revocation hearing after closing arguments; and (5) the District

Court’s decision to order the government to produce additional witnesses for

examination. For the reasons that follow, we will affirm.

I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       A.     Saldana on Supervised Release

       In January 2010, a federal jury convicted Saldana of extortion and conspiracy to




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                              2
commit extortion, and, in March 2011, sentenced him to forty-one months’ imprisonment

and three years of supervised release. He began to serve his term of supervised release in

February 2014.

       In the early morning of May 2, 2014, Saldana rushed his incapacitated, estranged

wife, Jeanette Magras Saldana, to the hospital.1 Hospital staff pronounced her dead

shortly after her arrival. Police arrested Saldana for murder later that day. Territorial

prosecutors charged Saldana with first degree murder, second degree murder, second

degree assault, and third degree assault. Saldana’s probation officer soon filed a petition

to revoke supervised release, alleging that Saldana violated three conditions of supervised

release: (1) committing another federal, state or local crime; (2) disobeying the

instructions of the probation officer; and (3) failing to notify the probation officer at least

10 days prior to any change in residence.

       B.     The Supervised Release Revocation Hearing

       The supervised release revocation hearing, originally scheduled for February 25,

2015, began on April 21, 2016 and ended on April 22, 2016.

              1.      Saldana’s Final Motion for a Continuance

       On April 18, 2016, three days before the revocation hearing, the government

provided an additional 118 pages of discovery to the defense. This, in part, prompted




       To avoid confusion, we refer to Enrique Saldana as “Saldana” and Jeannette
       1

Magras Saldana as “Magras Saldana.”

                                               3
Saldana to move for a continuance.2 But the District Court did not rule on the motion

before the morning of the revocation hearing, so the defense counsel renewed his motion

at the beginning of the revocation hearing. The defense counsel raised three grounds for

a continuance: (1) the defense’s expert witness was running late due to a flight delay; (2)

the timing of the government’s discovery disclosure was egregious; and (3) the discovery

disclosure contained a police report that the defense claimed the government’s expert

witness relied on in forming his opinion. After hearing the parties’ arguments on each

ground, the District Court denied the motion, ordered the government to put its expert on

last to account for the delayed arrival of the defense’s expert, and then moved along to

witness testimony.

              2.     Initial Witness Testimony

       According to the testimony, Magras Saldana hosted a gathering at her house the

night before she died.3 Her cousin, Odette Magras; Odette’s boyfriend, Corey Isaac; and

Saldana attended. Magras and Isaac left around midnight. Three people remained in the

house: Magras Saldana, Saldana, and their daughter, who was sound asleep.




       2
        The District Court granted multiple motions from Saldana and the government to
continue the revocation hearing.
       3
        Detective Dwight Griffith testified to the details of the gathering at Magras
Saldana’s residence. In May 2014, Griffith was assigned to the Major Crimes Unit of the
Virgin Islands Police Department and took part in the investigation of her death.

                                             4
       The testimony established that prior to a window of time of about six hours, the

last person seen with Magras Saldana was Saldana. During this window of time, she

suffered abrasions and contusions about her body and ingested a near-lethal dosage of

diphenhydramine (commonly known by the brand name Benadryl). At the end of this

window of time, Saldana drove her to the hospital, where she was pronounced dead

shortly after arrival.4 The government’s theory was that Saldana was responsible, based

on the autopsy evidence and that he was the last person seen with her. The defense’s

theory was that she died accidentally.

       The government supported its theory with the expert testimony of Dr. Francisco

Landron, the medical examiner that performed Magras Saldana’s autopsy. He testified

that the cause of death was acute Benadryl intoxication. The manner of death: homicide.5

The toxicology report that Dr. Landron relied on indicated, in his opinion, that Magras

Saldana ingested a lethal concentration of diphenhydramine. Magras Saldana’s body

temperature suggested the actual time of death was “about two hours prior to arriving at

the hospital.” App. 272. But the “most significant finding[s],” according to Dr. Landron,

were the “multiple injuries, multiple contusions and . . . abrasions that were distributed all



       4
         Officer Bernard Burke testified to providing Saldana a police escort to the
hospital. Nurse Robin McGonigle testified to the details of the scene at the hospital.
       5
        Dr. Landron reached this conclusion “based on the circumstances surrounding
the death, . . . the autopsy findings[,] and . . . the toxicology report.” App. 273. In
addition to Dr. Landron’s testimony, the toxicology report, autopsy report, and other
documents were admitted into evidence.

                                              5
over [her] body.” App. 267. He explained that, generally, contusions are “the result of

blunt force trauma,” caused by a punch, kick, being struck by an object, or a fall, and,

specifically, Magras Saldana’s contusions “can be considered defense-type” injuries.

App. 268, 319. However, Dr. Landron said that these injuries were not the cause of

death.

         The defense supported its theory with the testimony of Dr. Joseph Pestaner, a

forensic pathologist.6 He agreed that Magras Saldana died of a drug overdose, but

concluded that alcohol and alprazolam contributed to the cause of death. Dr. Pestaner

said that the blunt force trauma injuries Magras Saldana sustained were consistent with

falling. On cross-examination, however, he agreed with the common-sense proposition

that if one falls forward, there would be no injuries on their back (Magras Saldana had

blunt force injuries on her back).

                  3.     Closing Arguments and Initial Findings

         Closing arguments occurred the same day. After closing arguments, the District

Court announced its findings on two of the three alleged violations. First, the District

Court found there was insufficient evidence that Saldana changed his residence without

notifying his probation officer. Then, the District Court found sufficient evidence that

Saldana violated his probation officer’s specific instruction to not stay the night at

Magras Saldana’s residence.


         6
             Dr. Pestaner was the defense’s only witness at the revocation hearing.

                                                 6
       As for the third alleged violation, the District Court stated that it would “review

the record further” and “reconvene at 2:30” the next day, at which point the Court would

“allow the parties to be heard, to the extent they can find any other evidence, in the

record, one, as to when the contusions occurred; and two, the effect, if any, if there is no

record evidence as to when the contusions occurred.” App. 440–41.

                4.     Additional Witness Testimony, the District Court’s Final
                       Finding, and Sentencing

       That night, the District Court ordered the government to produce Magras and Isaac

for testimony the next day because it needed to “clarify testimony, and . . . matters in

issue in th[e] case.” App. 462.7 The District Court questioned Magras and Isaac about

Magras Saldana’s attire and whether there were any bruises visible on her person; they

said no bruises were present. The District Court also asked who was present at the

residence when they left; they said Saldana, Magras Saldana, and the Saldanas’ daughter.

After the District Court finished asking questions, it invited the parties to question the

witnesses. The government briefly questioned Magras but declined to question Isaac.

The defense declined to question either witness.

       The District Court then announced its holding on the remaining alleged violation:

there was sufficient evidence that Saldana committed third degree assault, in violation of

14 V.I. Code Ann. § 297(a)(4). The District Court based its decision on the timing of




       7
           The defense objected; the District Court overruled the objection.

                                               7
events, the bruises, the witness testimony, and the documentary evidence. The District

Court also observed that third degree assault “certainly requires some act of violence on

the part of another,” and concluded that is what happened in the instant case. App. 505.

       Finally, the District Court classified Saldana’s violations: disobeying the

instructions of the probation officer and the violation of territorial law constituted Grade

C and Grade A violations, respectively. As a result, the District Court imposed a

sentence of eighteen months’ imprisonment, eighteen months’ supervised release, and

four hundred hours of community service. Saldana filed this timely appeal.

II.    JURISDICTION

       The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 18 U.S.C.

§§ 3231 and 3583(e). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

III.   ANALYSIS

       Saldana raises several challenges on appeal. For the reasons that follow, we

conclude that they are meritless.8

       A.     Sufficiency of Evidence as to Third Degree Assault

       We turn first to Saldana’s challenge to the sufficiency of evidence supporting the

determination that he committed third degree assault. “A district court must find ‘by a




       8
         Saldana does not challenge the District Court’s findings as to the Grade C
violation.

                                              8
preponderance of the evidence that the defendant violated a condition of supervised

release . . . .’” United States v. Maloney, 

, 354 (3d Cir. 2008) (quoting 18

U.S.C. § 3583(e)(3)). “The District Court’s decision to revoke supervised release is

reviewed for abuse of discretion.” 

are reviewed for clear error, and

legal issues are reviewed de novo. 

variation9 of third degree assault has two elements: (1) “assault[ing]

another”; and (2) “inflict[ing] serious bodily injury upon the person assaulted.”

14 V.I. Code Ann. § 297(a)(4). An individual can commit “assault” in one of two ways.

The first way is by attempting to “use[] any unlawful violence upon the person of another

with intent to injure [that person].” 

292 (defining assault and battery). The

second way is by making “a threatening gesture showing in itself an immediate intention

coupled with an ability to” use unlawful violence. 

assault “does not . . .

require proof of intent to do serious bodily injury, but simply that serious bodily injury

resulted from a defendant’s conduct.” People v. Lima, 

, 126 (V.I. Super. Ct.

2012) (emphasis omitted).

       In the context of a revocation hearing, the District Court is only required to find a

violation of § 297(a)(4) by a preponderance of evidence, not beyond a reasonable doubt.


       9
        The Virgin Islands Code provides four definitions of assault in the third degree.
See 14 V.I. Code Ann. § 297(a)(1)-(4). The District Court defined assault in the third
degree as an assault that “inflicts serious bodily injury.” App. 480. This definition
corresponds to the definition of assault in the third degree found in § 297(a)(4).
Therefore, the District Court apparently concluded that Saldana violated § 297(a)(4), as
opposed to the other provisions defining assault in the third degree.
                                              9
See 18 U.S.C. § 3583(e)(3). Under the preponderance of evidence standard, “it is not

necessary that the probationer be adjudged guilty of a crime, but only that the court be

reasonably satisfied that he has violated one of the conditions.” United States v.

Poellnitz, 

, 566 (3d Cir. 2004). Saldana ignores this standard, as evidenced

by his reliance on Tyson v. People, 

, 548 (Sup. Ct. V.I. 2013), a case where

the Supreme Court of the Virgin Islands held, under a beyond a reasonable doubt

standard, that the sparse testimony of one witness did not sufficiently link the defendant

to the alleged assault to support a third degree assault conviction.

       The following details from the revocation hearing record support the District

Court’s determination: when Magras and Isaac last saw Magras Saldana alive, she did not

have any visible bruises or contusions; when Magras and Isaac left the party, the only

people in the house were Saldana, Magras Saldana, and their daughter, who was asleep;

and six hours later, Magras Saldana was incapacitated (perhaps dead) and covered in

bruises and contusions that were consistent with defensive injuries. This testimony,

along with other circumstantial evidence introduced at the revocation hearing, is

sufficient to support a finding that Saldana committed third degree assault.

       B.     Saldana’s Conduct (Third Degree Assault) Constituted a Grade A
              Violation

       Next, we turn to Saldana’s challenge to the District Court’s classification of his

conduct as a Grade A violation. “We review a District Court’s interpretation of the

Sentencing Guidelines de novo and its application of the Guidelines to the facts for clear

                                             10
error.” United States v. Woronowicz, 

, 850 (3d Cir. 2014). When a

defendant violates the conditions of his supervised release, the district court will classify

the defendant’s conduct as either a Grade A, Grade B, or Grade C violation, as defined in

the Guidelines. U.S. Sentencing Guidelines Manual § 7B1.1 (U.S. Sentencing Comm’n

2017) [hereinafter Guidelines Manual].

       Here, the distinction between the conduct that encompasses Grade A and Grade B

violations is the essence of Saldana’s challenge. Grade A violations encompass “conduct

constituting . . . a federal, state, or local offense punishable by a term of imprisonment

exceeding one year that . . . is a crime of violence.” 

Grade B

violations encompass “conduct constituting any other federal, state, or local offense

punishable by a term of imprisonment exceeding one year.” 

The

difference between the two grades is whether the conduct constitutes a “crime of

violence.”

       Section 7B1.1 defines a “crime of violence” by reference to § 4B1.2, a provision

that is applicable in the career offender context. 

cmt. n.2. Section 4B1.2

defines a crime of violence as “any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that . . . has as an element the use, attempted

use, or threatened use of physical force against the person of another.” 

“[T]he phrase ‘physical force’ means violent force—that is, force capable of causing

physical pain or injury to another person.” Johnson v. United States, 

, 140

(2010).
                                              11
          Saldana argues that, assuming his conduct constituted third degree assault, this

offense did not constitute a Grade A violation because, under the categorical approach,

third degree assault is not a crime of violence. Generally, in the § 4B1.2 context, we

apply the categorical approach to determine whether a defendant’s conviction constitutes

a crime of violence. See, e.g., United States v. Brown, 

, 188–89 (3d Cir.

2014). Under this approach, courts look “only to the statutory definitions of the . . .

offense[], and not to the particular facts underlying th[e] conviction[].” Taylor v. United

States, 

, 600 (1990).

          In the supervised release revocation context, the strict categorical approach does

not apply because § 7B1.1 allows the district court to determine the grade of the violation

based upon the defendant’s actual conduct. United States v. Carter, 

, 192

(3d Cir. 2013). After determining the offense the defendant’s actual conduct constitutes,

the district court must then apply the categorical approach’s focus on the elements of the

offense. This entails asking whether the offense “has the use or threat of physical force

[against the person of another] as an element.” 

(alteration in

original) (internal quotation marks omitted). As noted above, “physical force” refers to

“force capable of causing physical pain or injury to another person.” 

.

          Here, the District Court concluded that Saldana committed assault in the third

degree under 14 V.I. Code Ann. § 297(a)(4), which requires that the assault “inflicts

serious bodily injury upon the person assaulted.” Because this offense, by definition,
                                               12
requires that “serious bodily injury” result, it inevitably follows that this offense is one

which requires force capable of causing physical pain or injury. See Roberts v. Holder,

, 930–31 (8th Cir. 2014) (per curiam) (concluding that third degree assault

under Minnesota law constituted a crime of violence because the statute required the

infliction of substantial bodily harm and therefore would ordinarily involve the

intentional use of physical force). Accordingly, the District Court correctly concluded

that assault in the third degree under Virgin Islands law is a crime of violence, and thus

Saldana committed a Grade A supervised release violation.

       C.     Motions for a Continuance

       We now turn to Saldana’s challenge to the District Court’s decision to deny his

motions for a continuance. We review the district court’s denial of a continuance for

abuse of discretion. United States v. Adedoyin, 

, 341 (3d Cir. 2004).

Whether a refusal to grant a continuance amounts to a due process violation depends on

the “particular circumstances of each case.” United States v. Olfano, 

, 245–

46 (3d Cir. 2007) (citing Ungar v. Sarafite, 

, 589 (1964)). Courts should

consider the following factors when presented with a motion for a continuance: “the

efficient administration of criminal justice, the accused’s rights, and the rights of other

defendants whose trials may be delayed as a result of the continuance.” 

Additionally, the party challenging the denial of a continuance must prove that “the

denial was arbitrary and it substantially impaired the defendant’s opportunity to receive a

fair [hearing].” 

claims the District Court erred twice. First, he argues that the revocation

hearing should have been delayed until the disposition of his criminal trial, based on the

following reasons:

       (1) permitting the [defendant] to clear himself of the criminal charges with the likely
       result that the [supervised release] violation proceedings will not be held,

       (2) avoiding the need to have the [defendant] testify in the [supervised release]
       violation proceeding as to matters which may prejudice him in the criminal case,
       [and]

       (3) avoiding inconsistent findings in the [revocation] proceedings and the criminal
       case[.]

Appellant’s Br. at 37 (quoting United States v. Sackinger, 

, 1250

(W.D.N.Y. 1982), aff’d, 

(2d Cir. 1983)).

       Although the timing of the revocation hearing put Saldana in a position to make a

difficult decision in deciding whether to testify at the revocation hearing, the timing did

not constitute a constitutional violation. See United States v. Babich, 

, 416–

17 (3d Cir. 1986) (stating that Third Circuit precedent established “that the postponement

of [a] revocation hearing . . . is not constitutionally required”); Flint v. Mullen, 

, 105 (1st Cir. 1974) (holding where a state prisoner violated his deferred sentence

agreement, it was not a violation of due process to hold the violation hearing before the

criminal trial). We see no reason to believe that the refusal to continue the revocation




                                              14
hearing until the criminal trial substantially impaired Saldana’s opportunity to receive a

fair hearing.10

       The second error, according to Saldana, was the District Court’s decision to begin

the revocation hearing on the morning of April 21, 2016, despite Dr. Pestaner’s flight

delay and the government’s discovery disclosure three days before the revocation

hearing, which included a police report that allegedly implicated information that Dr.

Landron relied on. We note at the outset that the District Court accommodated the

defense by requiring Dr. Landron to testify at the end of the government’s case in chief.

Although Dr. Pestaner was unable to listen to all of the witness testimony, Saldana fails

to explain how that substantially impaired his opportunity to receive a fair hearing. As

for the discovery disclosure, the defense interviewed Dr. Landron and had the

opportunity to explore his knowledge. Nothing suggests that Dr. Landron relied on the

police report included in the discovery disclosure. We therefore conclude that the

District Court did not abuse its discretion in refusing to continue the revocation hearing

despite Dr. Pestaner’s late arrival and the timing of the government’s disclosure.

       D.     Reopening the Revocation Hearing

       Next, we turn to Saldana’s challenge to the District Court’s decision to reopen the

revocation hearing to examine Magras and Isaac. We review a district court’s decision to




       10
         Moreover, the refusal to continue the revocation hearing until the criminal trial
had no impact on the District Court’s finding of a Grade C violation.

                                             15
reopen a proceeding after the government rests its case for abuse of discretion. United

States v. Coward, 

, 180 (3d Cir. 2002). “When faced with a motion to

reopen, the district court’s primary focus should be on whether the party opposing

reopening would be prejudiced if reopening is permitted.” United States v. Kithcart

(Kithcart II), 

, 220 (3d Cir. 2000). The court must also “consider the

timeliness of the motion, the character of the testimony, and the effect of the granting of

the motion.” 

(quoting United States v. Blankenship, 

, 741 (6th Cir. 1985)).

       Two problems plague Saldana’s argument. First, Saldana presented evidence that

necessitated reopening. The District Court offered a reasonable explanation, observing

that it would be useful to hear the testimony of Magras and Isaac “in light of some of the

questions that the Court had at the end of the [summations the day prior,] and in light of

some of the hearsay that was presented . . . in video clips by the defense during

examination of [other] witnesses.” App. 445.11

       Second, the additional testimony did not unfairly prejudice Saldana. Although he

contends that “[a]llowing the court to reopen sua sponte is prejudicial,” Appellant’s Br. at


       11
          The District Court’s explanation thus provides a critical distinction between this
case and Kithcart II, a case Saldana insists proves his point. In Kithcart II, this Court had
already reversed the district court’s denial of a motion to suppress because the police
lacked probable cause to search the 

. On remand, the district
court allowed the government to reopen the suppression hearing to present additional
testimony. 

case returned to this Court, we held that the district court erred
by admitting additional evidence without the requisite explanation. 

                                             16
45, it is not clear what exactly was unfairly prejudicial. Magras’s and Isaac’s testimony

clarified what Detective Griffith said: no bruises were visible on Magras Saldana’s body

when Magras and Isaac departed from the gathering. Without the requisite prejudice, this

claim fails.

       E.      Ordering Government to Produce Witnesses and Examine the
               Witnesses

       Finally, we turn to Saldana’s challenge to the District Court’s decision to order the

government to produce Magras and Isaac for examination. The parties disagree on the

appropriate standard of review, but we conclude that this claim fails under any standard.12

       The revocation of supervised release “result[s] in a loss of liberty,” therefore, it is

subject to the “minimum requirements of due process.” United States v. Barnhart, 

, 222 (3d Cir. 1992) (internal quotation marks omitted). These minimum

requirements include “a ‘neutral and detached’ hearing body.” Morrissey v. Brewer, 

, 489 (1972).




       12
           Saldana calls for plenary review because he characterizes this claim as a
procedural due process claim. Appellant’s Br. at 45; see also United States v. Dees, 

, 854 (3d Cir. 2006) (“We exercise plenary review over a due process claim.”).
Meanwhile, the government calls for plain error review, because, in its view, Saldana
forfeited the claim. Appellee’s Br. at 37; see also United States v. Cruz, 

,
379 (3d Cir. 2014) (applying plain error review to forfeiture of a right). The government,
alternatively, requests abuse of discretion review. Appellee’s Br. at 37; see also United
States v. Adedoyin, 

, 342 (3d Cir. 2004) (applying abuse of discretion review
to a district court’s examination of a witness).

                                              17
       Saldana argues that, generally, a “judge is not a ‘neutral and detached’ hearing

body if he decides what allegations to proceed on or how to proceed on them.”

Appellant’s Br. at 49. Saldana then applies this purported rule to his case: the

government proceeded on a theory that Saldana “murdered his wife by poisoning her,”

but the District Court “did not find that the government proved” that theory. Appellant’s

Br. at 49. Rather than “dismiss[] that count, the [D]istrict [C]ourt called its own

witnesses after the government rested and found Mr. Saldana guilty of an offense the

government never alleged.” 

words, the government placed all of its chips on

the murder-by-poison theory and lost, but then the District Court stepped in to play the

role of an advocate and presented an assault-by-blunt-force-trauma theory. We find this

argument unpersuasive.

       The government had to prove Saldana violated a federal, state, or local law by a

preponderance of the evidence. This did not confine the government to proving a

particular crime or theory, as Saldana suggests. We also observe that the government, in

addition to attempting to prove a violation of law with a murder-by-poison theory,

presented evidence to support an assault-by-blunt-force-trauma theory. In its closing

argument, the government evoked the testimony “concerning the injuries [Magras]

Saldana had on her person, concerning contusions to the head, torso, extremities, back,

and that those injuries were consistent with blunt force trauma.” App. 380.

       Additionally, we conclude that the revocation hearing judge never abandoned his

“proper role and assume[d] that of an advocate.” 

(internal
                                             18
quotation marks omitted). In seeking to “clarify testimony, and . . . matters in issue in

this case,” App. 462, the revocation hearing judge elicited observations and did not

impeach or discredit the witnesses. See Fed. R. Evid. 614(a)-(b) (permitting a court to

call witnesses on its own and examine witnesses); 

(stating that

a district court may “interrogate witnesses,” and noting that “the court is more than a

‘mere umpire’ of the proceedings”); Moore v. United States, 

, 443 (5th Cir.

1979) (holding that the defendant had failed to prove that the court’s questioning was

improper where he relied on “the mere fact of judicial questioning” without identifying

any “specific instances of biased interrogation”); United States v. Stirone, 

,

279 (3d Cir. 1962) (observing that “[i]t is the right and duty of the judge to act in the

interrogation of witnesses to the end that the truth emerge,” therefore, “if the issues are

obscured or the testimony misunderstood, [the judge] is entitled to and should interrogate

witnesses to help render understandable such matters”). Accordingly, this claim fails.

IV.    CONCLUSION

       For the reasons set forth above, we will affirm the District Court’s order.




                                              19