                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 93-1222

                        FRANK A. BUCO,

                         Petitioner,

                              v.

                  UNITED STATES OF AMERICA,

                         Respondent.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                        

                            Before

                   Selya, Boudin and Stahl,
                       Circuit Judges.
                                     

                                        

   Frank A. Buco on brief pro se.
                
   A. John Pappalardo,  United States Attorney, Wendy  Warring,
                                                              
Trial Attorney,  U.S. Department  of  Justice, New  England  Bank
Fraud  Task Force, and Margaret R.  Hinkle, Director, New England
                                        
Bank Fraud Task Force, on brief for appellee.

                                        

                        June 10, 1993
                                        

     Per Curiam.  On  this appeal from the denial of a motion
               

under  28 U.S.C.   2255  filed by petitioner  Frank Buco, the

government has  conceded that an error,  unnoticed by anyone,

was made in the calculation of the sentencing guideline range

when petitioner was originally sentenced.  Buco was convicted

of  bank fraud  and  related offenses  and,  at the  time  of

sentencing in 1991, a total offense level of 19 was computed,

including a 3-point upward adjustment for an aggravating role

and  a 2-point upward adjustment  for abuse of  a position of

trust.  U.S.S.G.    3B.1.1(b),  3B1.3 (1990).   Buco did  not

appeal the sentence.

     Although  the  guidelines  in  effect  at  the  time  of

sentencing  permitted  both  adjustments, the  guidelines  in

effect at the time of the offenses (which apparently ended in

1989) did not.  Compare U.S.S.G.   3B1.3 (1989) with U.S.S.G.
                                                    

  3B1.3 (1990) (as amended by Amendment 346).  The government

concedes that the  2-point upward adjustment  for abuse of  a

position of trust was impermissible  under the Ex Post  Facto

Clause.   See Miller v. Florida, 482 U.S. 423, 429-35 (1987).
                               

But  it  also  contends  that  the  issue  was  not  properly

preserved and that, in any event, Buco was not prejudiced.

     The guideline  range computed at the  time of sentencing

was   30-37  months,   but   departing   downward   (somewhat

reluctantly) to reflect Buco's cooperation  with authorities,

the district court imposed a 27-month sentence.   The correct

guideline range, based on the government's concession, is 24-

30 months.  The government argues that  the 27-month sentence

was the  minimum the district  court deemed appropriate.   In

rejecting the government's suggestion of a departure down  to

21 months, the district  court stated that it would  not drop

below  27 months  because of  Buco's greater  involvement and

culpability in  comparison to his  codefendants who  received

sentences  of  up  to 24  months.    Buco  contends that  the

district court,  utilizing the correct guideline range, would

have  imposed  a  21-month  sentence  (the  proper  guideline

minimum less three months for cooperation).  

     Under  United  States v.  Frady,  456  U.S. 152,  164-68
                                    

(1982),  a procedurally  defaulted  habeas claim  may not  be

reviewed on the merits  unless the petitioner can  show cause

for  the default as well as actual prejudice from the alleged

violation.   An  exception  to Frady's  cause plus  prejudice
                                    

requirement exists where failure to consider the claim on the

merits would result in  a fundamental miscarriage of justice.

Coleman  v. Thompson,  111 S.Ct.  2546, 2564  (1991).    Buco
                    

contends that  the probation officer's error  in applying the

amended  guidelines  in  Buco's  presentence  report  and the

prosecutor's failure  to identify  the  error are  sufficient

cause for his procedural default.  We do not agree.

     In  order  to establish  "cause"  for  the default,  the

petitioner must show that  some "objective factor external to

the defense  impeded   [defense] counsel's efforts  to comply

with .  . . the procedural rule."  Murray v. Carrier, 477 U.S
                                                    

478,  488 (1986).  Here  the legal error  was discoverable at

the  time of  sentencing, and  the failure  of  the probation

                             -3-

officer  and  prosecutor to  discover  the  mistake does  not

excuse defense counsel's own inadvertence any more than would

a trial  court's failure to  recognize error in  its rulings.

There   was  no  external  impediment  to  defense  counsel's

compliance  with   the  rule  requiring  that  objections  to

guideline computations be made at or before sentencing.   The

lawyer  either  neglected  to read  the  pertinent  guideline

provisions  or else did so but missed the significance of the

limitation in the pre-1990 version of the guidelines.

     It also appears unlikely that the prejudice  requirement

could be  met.    "To  show  `prejudice,'  a  defendant  must

demonstrate  `a  reasonable  probability that,  but  for [the

alleged]  erro[r], the  result of  the proceeding  would have

been different.'"   Sawyer v.  Whitley, 112 S.Ct.  2514, 2532
                                      

(1992) (concurring  opinion of  Mr. Justice Blackmun).   From

the remarks made  at sentencing, it seems  to us at  least as

likely that the present sentence would have been imposed even

if  the correct guideline range had been used as the starting

point.    However, this  issue need  not be  resolved because

unless  both cause  and prejudice  are shown,  the procedural

default  bars the  petition unless  a miscarriage  of justice

would result.  United  States v. Ortiz, 966 F.2d  707, 717-18
                                      

(1st Cir.  1992), relied upon by  petitioner, involved direct

appeal where the preconditions to habeas relief do not apply.

                             -4-

     The contours of the "miscarriage of justice" concept are

not precisely delimited, and different standards may apply in

different  contexts.    See  United  States  v.  Orlando,  61
                                                        

U.S.L.W. 4421,  4424 (1993).  But the  Supreme Court's recent

collateral review  jurisprudence shows  that when a  sentence

falls  within  the  correct  guideline  range,  there  is  no

miscarriage of justice even though it is possible that absent

a mistake the sentencing court might have imposed a different

sentence.  Sawyer,  112 S.  Ct. at 2518-23.   Without  laying
                 

down  a blanket rule, we do not think that this case presents

a miscarriage of justice--a  standard more stringent than the

prejudice requirement--and we  therefore affirm the dismissal
                                               

of the petition.

     It is so ordered.
                     

                             -5-
