September 3rd, 1998



                                 United States Court of Appeals,

                                          Eleventh Circuit.

                                           No. 97-3013.

                          Joseph James BURKE, Petitioner-Appellant,


                     UNITED STATES of America, Respondent-Appellee.

                                           Sept. 3, 1998.

Appeal from the United States District Court for the Middle District of Florida. (Nos. 87-211-Cr-J-
12, 97-409-Civ-J-10), Howell W. Melton, Judge.

Before TJOFLAT, COX and HULL, Circuit Judges.

       COX, Circuit Judge:

       Joseph James Burke appeals the district court's denial of his 

28 U.S.C. § 2255

 motion for

modification and correction of sentence. We affirm.


       Burke pleaded guilty to six counts of armed bank robbery in violation of 

18 U.S.C. §


(a), (d). Two of the six robberies took place after the effective date of the sentencing

guidelines; Burke was therefore sentenced under the guidelines on those counts. The guideline

sentences included a two-level enhancement for obstruction of justice based on evidence that Burke

remained a fugitive from justice until his capture by the FBI, even though he knew the FBI was

pursuing him, and that he provided false identification when apprehended. Burke made no

objections at sentencing regarding the obstruction-of-justice enhancement. Burke subsequently filed

a notice of appeal from his conviction and sentence, but the appeal was dismissed pursuant to

Burke's motion for voluntary dismissal.
       In 1990, two years after Burke was sentenced, the Sentencing Commission added amendment

347 to the obstruction-of-justice enhancement provision, stating that post-offense flight and giving

a false name ordinarily does not constitute obstruction of justice. See U.S. SENTENCING GUIDELINES

MANUAL § 3C1.1, comment. (n.4(a), (d)). The Sentencing Commission explicitly classified

amendment 347 as a clarifying amendment. See U.S.S.G.App. C (amendment 347). Burke

subsequently moved pursuant to 

28 U.S.C. § 2255

 for a modification and correction of his sentence

based on this amendment. In the Government's response to Burke's motion, the Government argued,

among other things, that Burke's claim is not cognizable on collateral review because it is neither

constitutional nor jurisdictional and does not constitute a fundamental defect resulting in a complete

miscarriage of justice. The district court denied relief "for the reasons stated in the government's

response." (R.1-62, at 2).

                               CONTENTIONS OF THE PARTIES

       The Government contends that Burke's claim that his sentence is contrary to a subsequently

enacted clarifying amendment is a non-constitutional claim that does not provide a basis for

collateral relief. Burke maintains that his claim is cognizable on collateral review and further

maintains that he has made the requisite showing of cause for failure to object at sentencing and

raise the issue on direct appeal, and actual prejudice resulting from the error. Burke relies on the

fact that amendment 347 is a clarifying amendment to support his argument that the amendment

should apply retroactively to him. However, somewhat inconsistently, to establish cause for his

failure to raise the claim on direct appeal, Burke argues in his reply brief that because amendment

347 was added two years after his sentencing, the "change in the law effected by the commentary

... was not discoverable nor would it have been discoverable within the time frame of the direct

appeal." Reply Brief at 9. Burke claims actual prejudice in the fact that the improper application of

the obstruction-of-justice enhancement increased his sentence.


         The threshold inquiry is whether Burke's claim that his sentence is contrary to a

subsequently enacted clarifying amendment is cognizable under § 2255. The Supreme Court has

noted that § 2255 is not a substitute for direct appeal. See Sunal v. Large, 

332 U.S. 174

, 178, 


S.Ct. 1588

, 1590, 

91 L.Ed. 1982

 (1947). Thus, nonconstitutional claims can be raised on collateral

review only when the alleged error constitutes a " "fundamental defect which inherently results in

a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair

procedure.' " Reed v. Farley, 

512 U.S. 339

, 348, 

114 S.Ct. 2291

, 2297, 

129 L.Ed.2d 277


(quoting Hill v. United States, 

368 U.S. 424

, 428, 

82 S.Ct. 468

, 471, 

7 L.Ed.2d 417


(alteration in original).

        At least one of our sister circuits has explicitly held that a claim that the sentence imposed

is contrary to a subsequently enacted clarifying amendment is a non-constitutional issue that does

not provide a basis for collateral relief in the absence of a complete miscarriage of justice. See, e.g.,

Grant v. United States, 

72 F.3d 503

, 506 (6th Cir.), cert. denied, 

517 U.S. 1200


116 S.Ct. 1701



L.Ed.2d 800

 (1996); see also United States v. Payne, 

99 F.3d 1273

, 1281-82 (5th Cir.1996) (holding

that a district court's technical application of the guidelines is a non-constitutional issue that is not

cognizable on collateral review absent a complete miscarriage of justice); Graziano v. United


83 F.3d 587

, 589-90 (2d Cir.1996) (holding that absent a complete miscarriage of justice,

challenges to the application of the guidelines will not be considered on collateral review where the

defendant failed to raise them on direct appeal); Auman v. United States, 

67 F.3d 157

, 161 (8th

Cir.1995) (holding that ordinary questions of guideline interpretation falling short of a miscarriage

of justice do not present a proper § 2255 claim); United States v. Schlesinger, 

49 F.3d 483

, 485-86

(9th Cir.1994) (concluding that nonconstitutional sentencing errors that have not been raised on

direct appeal generally may not be reviewed under § 2255 with the possible exception of errors not

discoverable in time for direct appeal); United States v. Faubion, 

19 F.3d 226

, 232-33 (5th

Cir.1994) (holding that attack on the district court's upward departure from the guidelines is not

cognizable in a § 2255 action absent a miscarriage of justice); Scott v. United States, 

997 F.2d 340


342-43 (7th Cir.1993) (stating that petitioner could not raise, by means of § 2255, an allegation that

the district court misapplied the sentencing guidelines where the sentence had become final,

petitioner had not appealed, and the petitioner failed to demonstrate any extraordinary circumstances

warranting collateral attack on his sentence).

        In the instant case, Burke's claim falls short of indicating a "complete miscarriage of

justice." This court has held that amendment 347 is a clarifying rather than a substantive

amendment. See United States v. Howard, 

923 F.2d 1500

, 1504 (11th Cir.1991); see also

U.S.S.G.App. C (amendment 347) ("[t]his amendment clarifies the operation of § 3C1.1.").

Clarifying amendments do not effect a substantive change, but provide persuasive evidence of how

the Sentencing Commission originally envisioned application of the relevant guideline. See

Howard, 923 F.2d at 1504 n. 4 (citation omitted). Insofar as amendment 347 is a clarifying

amendment effecting no change in the substantive law, Burke was afforded the opportunity to raise

the impropriety of the obstruction-of-justice enhancement at his original sentencing and on direct

appeal. Considering all of the circumstances, we cannot say that the alleged mis-application of the

sentencing guidelines in this case was fundamentally unfair or that it constituted a miscarriage of

justice sufficient to form the basis for collateral relief. See Grant, 

72 F.3d at 506


         We thus hold that a claim that the sentence imposed is contrary to a post-sentencing

clarifying amendment is a non-constitutional issue that does not provide a basis for collateral relief

in the absence of a complete miscarriage of justice. We do not reach the issue of whether Burke

made the requisite showing of cause and prejudice to excuse his procedural default in failing to raise

the issue at sentencing and on direct appeal.1


    We have in the past opted to address the issues of procedural default, cause, and prejudice
rather than determine whether a sentencing guidelines claim would be cognizable at all on
collateral review. See Montemoino v. United States, 

68 F.3d 416

, 417 (11th Cir.1995). Burke
did not allege or assert cause and prejudice before the district court and raised it for the first time
in his reply brief to this court; we therefore prefer to rest the decision on the present grounds.