PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                              No. 98-4002

MICHAEL J. MIKALAJUNAS,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                              No. 98-4003

CRAIG E. LARGENT,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 98-4031

MICHAEL J. MIKALAJUNAS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-89-314-JFM)

Argued: April 9, 1999

Decided: July 21, 1999

Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
Reversed by published opinion. Judge Wilkins wrote the majority
opinion, in which Judge Niemeyer joined. Judge Murnaghan wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Lee Evans, Assistant United States Attorney, Bal-
timore, Maryland, for Appellant. Michael Daniel Montemarano,
MICHAEL D. MONTEMARANO, P.A., Baltimore, Maryland, for
Appellee Mikalajunas; Brian Joseph Murphy, Baltimore, Maryland,
for Appellee Largent. ON BRIEF: Lynne A. Battaglia, United States
Attorney, Baltimore, Maryland, for Appellant.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

The United States appeals a decision of the district court granting
relief to Michael J. Mikalajunas and Craig E. Largent (collectively,
"Appellees") pursuant to 28 U.S.C.A. § 2255 (West Supp. 1999) in
the form of reductions in their sentences for second-degree murder,
see 18 U.S.C.A. § 1111(a) (West Supp. 1999). Mikalajunas cross
appeals, arguing that the district court erred in failing to find that he
was deprived of the effective assistance of counsel due to counsel's
failure to object at sentencing to the enhancement of his offense level
for physical restraint of the victim. See U. S. Sentencing Guidelines
Manual § 3A1.3 (1989). We hold that the district court correctly
determined that Mikalajunas' counsel was not constitutionally inef-
fective, but that the district court incorrectly granted § 2255 relief.
Accordingly, we reverse.

I.

Appellees pled guilty to the second-degree murder of Christopher
Weathers pursuant to plea agreements that stipulated to a base offense
level of 33 for each. Largent's plea agreement also stipulated that an
enhancement for physical restraint of the victim was appropriate

                     2
under U.S.S.G. § 3A1.3. At sentencing, the district court enhanced
Appellees' offense levels by two levels for restraint of the victim in
addition to making other adjustments. The court sentenced Mikala-
junas and Largent, respectively, to 262 and 180 months imprison-
ment. Neither Mikalajunas nor Largent pursued an appeal.1

Mikalajunas' brother, who is not a party to this appeal, pled guilty
to being an accessory after the fact to the second-degree murder of
Weathers. At sentencing, he challenged the applicability of a pro-
posed upward adjustment to his offense level for restraint of the vic-
tim and later appealed the decision of the district court to enhance his
offense level pursuant to § 3A1.3. This court agreed that the enhance-
ment was improperly applied, reasoning that "[a]n upward adjustment
for restraint is to be made in the context of an act which adds to the
basic crime" and that because "[e]very murder involves the ultimate
restraint," the restraint of Weathers did not add anything to his mur-
der. See United States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir.
1991).

In April 1997, Mikalajunas and Largent filed motions pursuant to
28 U.S.C.A. § 2255, claiming that they had been deprived of their
Sixth Amendment right to the effective assistance of counsel because,
inter alia, counsel had failed to preserve an allegation of error with
respect to, and to appeal, the application of the§ 3A1.3 enhancement.
The district court concluded that counsel were not ineffective for fail-
ing to appeal the issue but reduced Appellees' sentences, ruling that
failure to correct the erroneous application of the restraint of victim
enhancement would constitute a miscarriage of justice. Accordingly,
the district court reduced Mikalajunas' sentence to 210 months
imprisonment and Largent's sentence to 168 months imprisonment.

II.

The Government maintains that because Appellees did not appeal
the enhancement of their offense levels under § 3A1.3, they have pro-
cedurally defaulted their claim and relief on that basis is inappropri-
ate. In order to collaterally attack a conviction or sentence based upon
_________________________________________________________________

1 Although Mikalajunas noted an appeal, he voluntarily dismissed it.

                     3
errors that could have been but were not pursued on direct appeal, the
movant must show cause and actual prejudice resulting from the
errors of which he complains or he must demonstrate that a miscar-
riage of justice would result from the refusal of the court to entertain
the collateral attack. See United States v. Frady, 456 U.S. 152, 167-
68 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir.
1994). The existence of cause for a procedural default must turn on
something external to the defense, such as the novelty of the claim or
a denial of effective assistance of counsel. See Murray v. Carrier, 477
U.S. 478, 488 (1986). And, in order to demonstrate that a miscarriage
of justice would result from the refusal of the court to entertain the
collateral attack, a movant must show actual innocence by clear and
convincing evidence. See id. at 496.

Acknowledging their failure to appeal the enhancement of their
offense levels for restraint of the victim, Appellees contend that they
can establish cause to excuse their procedural default based on either
ineffective assistance of counsel or a change in the law. Alternatively,
they contend that they are actually innocent of the enhancement. We
disagree with all of these assertions.

To establish cause for their default based upon ineffective assis-
tance of counsel, Appellees must show that their attorneys' perfor-
mance fell below an objective standard of reasonableness and that
they suffered prejudice as a result. See Murray , 477 U.S. at 488;
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's failure
to pursue a basis for appeal by reason of a mere miscalculation of the
likelihood of success does not constitute constitutionally ineffective
representation. See Smith v. Murray, 477 U.S. 527, 534-35 (1986).
Here, counsel's decision not to challenge Appellees'§ 3A1.3
enhancements for restraint of the victim--a decision made prior to
our decision in Mikalajunas holding such an enhancement to be
improper--at worst amounted to a miscalculation of the likelihood of
success of such a challenge. Prior to Mikalajunas there was no con-
trolling authority dictating a conclusion that an enhancement for
restraint of the victim was appropriate only when the restraint "adds
to the basic crime" and that because "murder involves the ultimate
restraint," no restraint of victim enhancement is appropriate for mur-
der. Mikalajunas, 936 F.2d at 156. Indeed, neither the plain language
of the guideline provision at issue nor decisional law suggested that

                    4
such an argument had any chance of proving meritorious. See Smith,
477 U.S. at 535 (recognizing "that `the mere fact that counsel failed
to recognize the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute cause for a proce-
dural default'" (quoting Murray, 477 U.S. at 486-87)). Therefore,
Appellees have failed to demonstrate ineffective assistance of counsel
as cause for their procedural default.2

Further, Appellees cannot demonstrate cause based on an argument
that a change in the law--the intervening decision of this court in
Mikalajunas--excuses their default. In order to justify the failure to
raise an issue during trial and direct appeal based on a subsequent
change in the law, the state of the law must have been such that the
legal basis for the claim was not reasonably available when the matter
should have been raised. See Turner v. Jabe, 58 F.3d 924, 927-28 (4th
Cir. 1995). There is no ground for an argument that the question
decided in Mikalajunas (whether the enhancement for restraint of vic-
tim applies when the underlying offense of conviction is murder)
could not have been raised at sentencing or on direct appeal. In fact,
this is exactly what another member of Appellees' criminal undertak-
ing did.

With Appellees having failed to demonstrate cause and prejudice
to excuse their failure to appeal the applicability of the restraint of
victim enhancement, the question remains whether they can show
actual innocence to excuse their procedural default. See Sawyer v.
Whitley, 505 U.S. 333, 339 (1992) (explaining that even when habeas
petitioner cannot excuse procedural default by demonstrating cause
and prejudice, court may review merits of claim if petitioner can show
actual innocence). Typically, to establish actual innocence a petitioner
must demonstrate actual factual innocence of the offense of convic-
tion, i.e., that petitioner did not commit the crime of which he was
convicted; this standard is not satisfied by a showing that a petitioner
is legally, but not factually, innocent. See id. at 339-41. Although rec-
_________________________________________________________________
2 Likewise, we reject Mikalajunas' claim on cross appeal that the dis-
trict court erred in concluding that he was not deprived of the effective
assistance of counsel by counsel's failure to raise on direct appeal an
allegation that § 3A1.3 should not have been applied to enhance his
offense level.

                    5
ognizing that the concept of actual innocence does not lend itself eas-
ily to sentencing determinations, the Supreme Court has held that a
petitioner may establish actual innocence in the capital sentencing
context by demonstrating by clear and convincing evidence that but
for an alleged error committed during his sentencing"no reasonable
juror would have found him eligible for the death penalty under"
applicable law. Id. at 350. The Court has not addressed whether the
actual innocence exception can be applied to sentencing outside the
capital context, and this question has divided the courts of appeals.
Compare Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.
1997) (en banc) (holding that actual innocence exception "applies
only to the sentencing phase of death cases"), cert. denied, 119 S. Ct.
78 (1998), and United States v. Richards, 5 F.3d 1369, 1371 (10th
Cir. 1993) (ruling that "[a] person cannot be actually innocent of a
noncapital sentence"), with Mills v. Jordan , 979 F.2d 1273, 1278-79
(7th Cir. 1992) (holding that a showing of actual innocence of a predi-
cate offense that is necessary for habitual offender sentencing
enhancement may excuse procedural default).3

In United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir. 1994),
a panel of this court ruled that the actual innocence exception may be
applied in § 2255 to noncapital sentencing proceedings and that May-
beck was actually innocent of being a career offender, see U.S.S.G.
§ 4B1.1, because one of the predicate offenses necessary to qualify
him for career offender status actually was not a crime of violence.
See Maybeck, 23 F.3d at 892-93. Appellees argue that Maybeck
stands for the proposition that the actual innocence exception applies
to excuse a procedural default whenever a movant is"innocent" of
any sentencing adjustment alleged to be error. And, because the
§ 3A1.3 enhancement for restraint of victim was erroneously applied
to them, they conclude that they are "actually innocent" of that adjust-
ment.
_________________________________________________________________

3 The Fifth Circuit has ruled that, assuming without deciding that the
actual innocence exception is available in a noncapital sentencing con-
text, a showing of actual innocence would require a demonstration that
but for alleged error the defendant "would not have been legally eligible
for the sentence he received." Smith v. Collins, 977 F.2d 951, 959 (5th
Cir. 1992).

                    6
Appellees' reading of Maybeck cannot be correct. If the actual
innocence exception is available anytime a guideline is misapplied
(such that the defendant is "actually innocent" of the application of
the guideline), the actual innocence exception would swallow the rule
that issues not raised on appeal cannot be considered in a § 2255
motion absent a showing of cause and prejudice to excuse the default.
Such a reading of Maybeck would mean that whenever a movant is
prejudiced by the misapplication of a sentencing guideline and does
not raise the error on direct appeal, a federal court may nevertheless
correct the error during a § 2255 proceeding, entirely eliminating the
cause portion of the cause and prejudice requirement. We decline to
give Maybeck such an absurdly broad reading. Rather, we conclude
that under the reasoning of Maybeck actual innocence applies in non-
capital sentencing only in the context of eligibility for application of
a career offender or other habitual offender guideline provision. The
error at issue in Maybeck involved the application of the career
offender provision. And, in reaching its holding, the panel in Maybeck
relied on decisions that had extended the actual innocence exception
to noncapital sentencing in the context of habitual offender provisions
and that stressed the necessity of defining the actual innocence excep-
tion narrowly in the context of noncapital sentencing. See id. at 893
(citing Waring v. Delo, 7 F.3d 753, 757 (8th Cir. 1993), warning "that
the actual innocence exception in a noncapital sentencing case must
be defined by a narrow, objective standard"; Mills, 979 F.2d at 1279,
holding "that the actual innocence exception applies to habitual
offender proceedings ... whether or not they involve the possibility of
capital punishment"; and Jones v. Arkansas , 929 F.2d 375, 381 &
n.16 (8th Cir. 1991), ruling that a defendant was actually innocent of
a habitual offender provision that did not apply to him). Most impor-
tantly, a broader reading of Maybeck would conflict squarely with
Supreme Court authority indicating that generally more than prejudice
must exist to excuse a procedural default.4 Accordingly, we reject
_________________________________________________________________
4 The Government also contends that the actual innocence exception
cannot be applied here because it applies only when the defendant is
asserting a constitutional violation. In support of its claim, the Govern-
ment contends that the Supreme Court has recognized the availability of
the actual innocence exception only in cases in which an alleged consti-
tutional violation was at issue. The Court, however, has not refused to
apply the actual innocence exception in a nonconstitutional context; that
issue simply has never been before the Court. And, the Government's

                  7
Appellees' contention that they have demonstrated actual innocence
to excuse their failure to raise on direct appeal a challenge to the
application of the § 3A1.3 enhancement.5

III.

The Government also asserts that even if Appellees had not proce-
durally defaulted their claim that the § 3A1.3 enhancement did not
apply to them, they would not be entitled to relief because misapplica-
tion of the sentencing guidelines does not amount to a miscarriage of
justice. Section 2255 provides a means for one convicted of a federal
offense to collaterally attack a conviction or sentence that, inter alia,
"was imposed in violation of the Constitution or laws of the United
States," and thus § 2255 relief is not limited to constitutional error in
a conviction or sentence. 28 U.S.C.A. § 2255; see Davis v. United
States, 417 U.S. 333, 345-46 (1974). But, the scope of review of non-
constitutional error is more limited than that of constitutional error;
a nonconstitutional error does not provide a basis for collateral attack
unless it involves "a fundamental defect which inherently results in a
complete miscarriage of justice," United States v. Addonizio, 442 U.S.
178, 185 (1979) (internal quotation marks omitted), or is "inconsistent
with the rudimentary demands of fair procedure," United States v.
Timmreck, 441 U.S. 780, 784 (1979) (internal quotation marks omit-
ted). Compare Addonizio, 442 U.S. at 184-90 (concluding that change
in United States Parole Commission's parole policies did not effect
_________________________________________________________________
argument cannot be squared with Maybeck, in which this court excused
a procedural default based upon the actual innocence exception involving
the misapplication of the career offender provision, not a constitutional
error. Consequently, Maybeck forecloses the Government's argument on
this score.
5 Mikalajunas also asserts that at resentencing the district court should
have applied the guideline manual in effect at the time and awarded him
a three-level reduction for acceptance of responsibility, rather than the
two-level reduction available at the time of his original sentencing.
Compare U.S.S.G. § 3E1.1 (1989) with U.S.S.G. § 3E1.1 (1995).
Because there was no basis for a grant of relief under § 2255, and
accordingly no cause for resentencing, we need not address this argu-
ment.

                    8
a miscarriage of justice), Timmreck, 441 U.S. at 783-85 (ruling that
a technical violation of Federal Rule of Criminal Procedure 11 did not
result in miscarriage of justice), and Hill v. United States, 368 U.S.
424, 428 (1962) (holding that denial of allocution at sentencing in
violation of Federal Rule of Criminal Procedure 32(a) was not miscar-
riage of justice), with Davis, 417 U.S. at 346-47 (determining that
subsequent change in substantive law making defendant's past con-
duct lawful is a sufficient basis for collateral attack).

The circuit courts of appeals have reserved judgment on whether
a misapplication of the sentencing guidelines could ever support
§ 2255 relief but have held that errors of guideline interpretation or
application ordinarily fall short of a miscarriage of justice. See Burke
v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998) (holding
that sentence imposed contrary to subsequent clarifying amendment
to guideline was not a miscarriage of justice), cert. denied, 67
U.S.L.W. 3561 (U.S. June 1, 1999) (No. 98-1369); United States v.
Payne, 99 F.3d 1273, 1281-82 (5th Cir. 1996) (concluding that an
improper application of the guidelines by the district court is a non-
constitutional issue that could have been raised on direct appeal and
is not cognizable on collateral review); Graziano v. United States, 83
F.3d 587, 589-90 (2d Cir. 1996) (per curiam) (ruling that claim that
fine imposed exceeded maximum allowable under guidelines would
not be considered on collateral review when the defendant failed to
raise it on direct appeal and there was no miscarriage of justice);
Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (determin-
ing that ordinary questions of guideline interpretation that fall short
of being miscarriages of justice are not cognizable under § 2255 and
reserving the question of whether guideline error ever could be a mis-
carriage of justice); Knight v. United States , 37 F.3d 769, 772-74 (1st
Cir. 1994) (ruling that ordinary misapplication of sentencing guide-
lines was not a proper claim under § 2255); United States v. Segler,
37 F.3d 1131, 1134 (5th Cir. 1994) (holding that"[a] district court's
technical application of the Guidelines" is not"cognizable under
§ 2255"); Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993)
(stating that petitioner could not raise, by means of § 2255, an allega-
tion that the district court misapplied the sentencing guidelines when
the sentence had become final, petitioner had not appealed, and the
petitioner failed to demonstrate any extraordinary circumstances war-
ranting collateral attack on his sentence); see also United States v.

                    9
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). We join our
sister circuits in holding that a misapplication of the guidelines typi-
cally does not constitute a miscarriage of justice. And, we conclude
that Appellees' claim that the district court erred in enhancing their
offense levels for restraint of the victim is merely an allegation of an
ordinary misapplication of the guidelines that does not amount to a
miscarriage of justice.

IV.

In sum, we hold that by failing to raise the issue on direct appeal,
Mikalajunas and Largent procedurally defaulted their claim that the
district court improperly applied the § 3A1.3 adjustment for restraint
of victim to enhance their offense levels. Furthermore, the mere mis-
interpretation or application of a guideline provision generally does
not amount to a miscarriage of justice that warrants relief under
§ 2255. Accordingly, we reverse.

REVERSED

MURNAGHAN, Circuit Judge, dissenting:

I want to make clear what results from the majority opinion. The
Appellees, the government, the lower court, and the majority all agree
that because of a misapplication of the sentencing guidelines, one of
the Appellees will be in jail for one year longer than the sentence pro-
vided by law, the other Appellee will be in jail for over four years
longer than the sentence provided by law. This was not a procedural
error such that it might turn out at re-sentencing that Appellees would
be subject to the same sentencing enhancement, in any event. All
agree that, without a doubt, Appellees do not qualify for the sentenc-
ing enhancement which they received. Citing the"ordinary" nature of
the error at issue, see ante at 9, the majority finds itself powerless to
prevent the Appellees from serving over five years of admittedly erro-
neous jail time. Because I do not believe that the state's interest in
finality outweighs even one year of a man's life, and because I
believe that Supreme Court and Circuit precedent dictate a contrary
result, I respectfully dissent.

                     10
I.

The defendants were rightfully convicted for second-degree mur-
der. However, their sentences included additions of 52 months in one
and 12 months in the other for physical restraint of the victim. That
was not interpreted to be improper under the sentencing guidelines at
the time of sentencing. However, it was later determined to be so
since "every murder involves the ultimate restraint." Hence the vic-
tim's restraint did not add anything to his murder. United States v.
Mikalajunas, 936 F.2d 153, 156 (4th Cir. 1991). The district judge,
under 28 U.S.C.A. § 2255 (West Supp. 1999), reduced Appellees'
sentences to their proper levels. The majority now reverses this deci-
sion.

II.

I agree with the majority's discussion of the cause and prejudice
standard. I note, however, that, given the majority's holding in section
III, it is irrelevant that the Appellees in this case procedurally
defaulted. Under the majority opinion, even if the Appellees had chal-
lenged the Application of U.S.S.G. § 3A1.3 to their crime on direct
appeal, and an intervening change in the law (e.g., a subsequent
Supreme Court decision or circuit en banc decision) made the inter-
pretation of the sentencing guideline under which they were sen-
tenced erroneous, Appellees would still be unable to avail themselves
of § 2255 relief. Cf. Davis v. United States, 417 U.S. 333 (1974)
(holding that intervening, non-constitutional change in substantive
law could be basis for § 2255 relief).

I have trouble reconciling the majority's approach with the plain
language of § 2255, which is, after all, phrased in terms of challenges
to sentences. See 28 U.S.C.A. § 2255 ("under sentence," "the sentence
was imposed in violation," "the court was without jurisdiction to
impose such sentence," "the sentence was in excess," "to vacate, set
aside or correct the sentence") cited in United States v. McLamb, 77
F.3d 472, 1996 WL 79438, at **5 (4th Cir. 1996) (unpublished table
disposition) (Niemeyer, J., concurring) (writing separately for the
exclusive purpose of noting a right to review a sentence despite a pro-
cedural default and no waiver of that bar by the government: "I
believe that the defendant has a substantive right to review an illegal

                    11
sentence despite his failure to appeal the issue, and I do not believe
that we could permit a defendant to remain in prison under an illegal
sentence.").1

III.

As the majority acknowledges, the fact that Appellees procedurally
defaulted their claim is not the end of the analysis. The Supreme
Court has established an exception to the procedural default rule to
avoid fundamental miscarriages of justice, when a defendant can meet
a certain standard of "actual innocence." See, e.g., Schlup v. Delo, 513
U.S. 298, 322-323 (1995); Sawyer v. Whitley, 505 U.S. 333, 339
(1992); Murray v. Carrier, 477 U.S. 478, 496 (1986). While the "ac-
tual innocence" exception was initially formulated in the context of
a petitioner who claimed actual innocence of the crime of conviction,
the Supreme Court has applied that exception also to capital sentenc-
ing determinations. See, e.g., Sawyer v. Whitley, 505 U.S. at 339;
Dugger v. Adams, 489 U.S. 401, 410-12 n.6 (1989); Smith v. Murray,
477 U.S. 527, 537 (1986).

The Supreme Court has noted that the actual innocence exception
is reserved for cases of "actual as compared to legal innocence."
Sawyer v. Whitley, 505 U.S. at 339. The Sawyer Court, however,
made clear that "actual" innocence did not mean innocence of the
charged crime. In that case, the Court applied the actual innocence
exception although the petitioner was concededly guilty of the under-
lying crime. Sawyer explained that actual innocence in the sentencing
context focuses on the elements that render a defendant eligible for
the particular penalty. Id. at 347.

Following Sawyer's logic, in United States v. Maybeck, 23 F.3d
888 (4th Cir. 1994), we applied the actual innocence exception to a
collateral challenge to a non-capital sentence:

          Except for the obvious difference in the severity of sen-
          tences, we see little difference between holding that a defen-
          dant can be innocent of the acts required to enhance a
_________________________________________________________________
1 While McLamb is not controlling authority, the reasoning here may
be regarded as acceptable logically.

                    12
          sentence in a death case and applying a parallel rationale in
          non-capital cases. *** Hence, a defendant in either a capital
          or non-capital case would, unless excepted from the cause
          and prejudice requirement, suffer the same general conse-
          quence (an enhanced sentence) from being held responsible
          for an act of which he or she is actually innocent.

Maybeck, 23 F.3d at 893 (emphasis added). 2 Appellees' situation falls
squarely into the logic of this passage.

Although Maybeck contains no language limiting its holding to
erroneous career offender enhancements, the majority balks at apply-
ing Maybeck here. The majority says that it must limit Maybeck
because to do otherwise would effectively ignore the cause prong of
the cause-and-prejudice standard. See ante at 7. I do not share the
majority's concerns. The Supreme Court has established that when
the prejudice is so severe as to be fundamentally unjust -- i.e., the
defendant is convicted, see Murray v. Carrier , 477 U.S. at 496, or
sentenced, see Sawyer v. Whitley, 505 U.S. 333, 336 (1992), when he
is actually not guilty of that conviction or sentence -- a prisoner need
not show cause. That is why the Supreme Court created the actual
innocence exception3 as an alternative to, not a subset of, the cause
and prejudice standard. See, e.g., Schlup, 513 U.S. at 320.

The issue, then, is not whether the actual innocence exception
swallows the cause and prejudice rule, since they are entirely sepa-
_________________________________________________________________
2 In Schlup, the Supreme Court indicated that the actual innocence
exception is applicable to sentence enhancements. The Court noted that
in Sawyer, it had applied the actual innocence exception to one of the
elements of the offense. The court distinguished Sawyer, by reasoning,
"Though formulated as an element of the offense .. ., the arson
functioned essentially as a sentence enhancer." Schlup, 513 U.S. at 326
(emphasis added). Since the Schlup Court did not disapprove of this
application of the actual innocence exception, the Court implicitly
approved of its application to sentence enhancers.
3 The word "exception" here does not indicate an exception to the cause
and prejudice rule. Both the actual innocence exception and the cause
and prejudice rule are separate exceptions to the procedural default doc-
trine.

                    13
rate; rather the issue is whether one believes that it is fundamentally
unjust to keep a prisoner in jail for one year or four years longer than
the correct sentence dictated by the Sentencing Guidelines. When the
issue is properly framed, it becomes clear that the majority has no
logical or conceptual basis to limit Maybeck. The Maybeck panel held
that it was a fundamental miscarriage of justice to require a defendant
to serve time under sentencing provisions of which he was actually
innocent. I agree with that holding. The best that the typical habeas
petitioner can claim is that in the absence of the error, a different
result was likely. Appellees, like the petitioner in Maybeck, can claim
a much more serious prejudice -- because of the error each Appellee
will with a certainty be serving a long period of time in jail which is
undeserved under our current sentencing system. 4 I can see no differ-
ence from the standpoint of fairness and justice between a petitioner
who wrongly remains incarcerated based on an erroneous career
offender sentence enhancement and a petitioner who wrongly remains
incarcerated based on an erroneous restraint of the victim sentence
enhancement. Nor does the majority offer one.

It is true that the trend in Supreme Court habeas cases has been to
emphasize finality over the correction of errors. See, e.g., Sawyer v.
Whitley, 505 U.S. at 338; McCleskey v. Zant , 499 U.S. 467, 490-91
(1991); Teague v. Lane, 489 U.S. 288, 316 (1989);5 Wainwright v.
_________________________________________________________________
4 The government argues that Appellees were only potentially preju-
diced by the district court's error. The Government asserts that Appellees
benefitted substantially from their plea agreements: even with the sen-
tencing error, Appellees face terminable sentences rather than the life
without parole they would have faced absent a guilty plea. This argument
is not persuasive. The government never contended that its agreement to
accept Appellees' guilty pleas was in any way contingent upon the court
granting an upward adjustment under § 3A1.3. For both Appellees, the
government left the final determination of the appropriate sentence up to
the district judge. Had the district court applied§ 3A1.3 correctly, then
under the terms of the plea agreements, Appellees would have obtained
the sentences which they are now seeking.
5 I take this time to note that Teague is inapplicable to the case at bar.
We have already held with persuasive force that Teague does not bar the
retroactive application on collateral review of a decision concerning the
reach of a sentencing guideline. See United States v. McLamb, 77 F.3d

                    14
Sykes, 433 U.S. 72, 87 (1977). However, at the same time the Court
has been narrowing the availability of the writ, it has been expanding
the fundamental miscarriage of justice standard. This doctrine was
first held to be applicable to procedurally defaulted claims in Murray
v. Carrier, 477 U.S. 478, 496 (1986). It was extended to cover sen-
tencing error in Sawyer v. Whitley, 505 U.S. 333, 340-341 (1992).
Most recently the burden of proof was relaxed for certain cases in
Schlup v. Delo, 513 U.S. 298, 323-324 (1995). 6 So, once again, the
focus of the inquiry is not on policy-based finality issues; the inquiry
is whether a fundamental miscarriage of justice is afoot. In a different
context, we have stated:
_________________________________________________________________

472, 1996 WL 79438, at **3 n.4 (4th Cir. 1996) (unpublished table dis-
position). See supra n.1. Judge Niemeyer concurred in this opinion. See
id. at **5 (Niemeyer, J., concurring). This holding was in accord with the
general understanding that "Teague stands for the proposition that new
constitutional rules of criminal procedure will not be announced or
applied on collateral review." Lockart v. Fretwell, 506 U.S. 364, 372
(1993) (emphasis added). Teague does not apply to the "retroactive
application of a substantive non-constitutional decision concerning the
reach of a federal statute." United States v. McClelland, 941 F.2d 999,
1001 (9th Cir. 1991). See also Oliver v. United States, 90 F.3d 177, 179
(6th Cir. 1996); United States v. Dashney, 52 F.3d 298, 299 (10th Cir.
1995). Cf. United States v. Bonnette, 781 F.2d 357, 362-64 (4th Cir.
1986) (pre-Teague decision allowing habeas challenge based on subse-
quent decision narrowing substantive criminal statute). But see Boyer v.
United States, 55 F.3d 296, 299 (7th Cir. 1995).

6 Further, finality and judicial efficiency concerns are significantly
reduced when dealing with sentencing error. Finality concerns are low
because relief on habeas will only result in the correction of the sentence,
not in the release of the defendant or in a new trial. A petitioner's convic-
tion at trial -- "the paramount event," Herrera v. Collins, 506 U.S. 390,
416 (1993), in which society's resources have been concentrated, see id.
at 401 -- is undisturbed. Similarly, judicial efficiency concerns are low
because sentencing is a more informal and limited process than is retrial.
Often, correcting an erroneous sentence will require only mechanical
application of the Sentencing Guidelines. Finally, because the Sentencing
Guidelines only apply in federal cases, we need not worry about comity
issues.

                     15
          [S]entencing a defendant at the wrong guideline range seri-
          ously affects the fairness, integrity, and public reputation of
          the judicial proceedings. If we do not correct this error, Reid
          will serve a term of imprisonment three years longer than
          required by the sentencing guidelines. We cannot casually
          ignore this fact because of an overly-strict adherence to
          technical requirements. Three years of a man's life is not a
          trifling thing. No court of justice would require a man to
          serve three undeserved years in prison when it knows that
          the sentence is improper.

United States v. Ford, 88 F.3d 1350 (4th Cir. 1996). In my view, there
is no doubt that Appellees have shown a fundamental miscarriage of
justice.

Having concluded that the actual innocence exception should apply
to Appellees, it is clear that they have made the required showing.
The Supreme Court recently clarified that there are three different
standards of review under the actual innocence "gateway." See
Schlup, 513 U.S. at 313-317, 321-329. Since Appellees have alleged
error at their sentencing, i.e., that their "sentence[s] [are] too severe,"
the appropriate standard of review is that articulated in Sawyer v.
Whitley, 505 U.S. at 336: Appellees must show by clear and convinc-
ing evidence that but for the error, petitioners would have been ineli-
gible for the penalty which they received.7 See Schlup, 513 U.S. at
325-26 & 326 n.44. Here, but for the erroneous application of the
§ 3A1.3 enhancement, Appellees would have been ineligible for the
sentences which they received.
_________________________________________________________________

7 This standard encompasses the court's observation in Maybeck that
the actual innocence exception is not available when the petitioner was
not prejudiced by the inclusion of the enhancement. Maybeck, 23 F.3d
at 894. See also Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992)
(actual innocence exception would only be available if but for the error
the petitioner would not have been legally eligible for the sentence he
received).

                    16
IV.

In my view, once a defendant satisfies the actual innocence stan-
dard, he has also cleared the "complete miscarriage of justice" hurdle
which governs § 2255 relief for non-constitutional, non-jurisdictional
claims, see United States v. Addonizio, 442 U.S. 178, 185 (1979). As
the majority opinion shows, see ante at 4, and Supreme Court opin-
ions confirm, the actual innocence doctrine is based on a "fundamen-
tal miscarriage of justice" standard. See, e.g., Schlup, 513 U.S. at 320-
21; Herrera v. Collins, 506 U.S. 390, 404 (1993); Sawyer v. Whitley,
505 U.S. at 339; Murray v. Carrier, 477 U.S. at 496. Thus, any pris-
oner who meets the actual innocence standard also meets the com-
plete miscarriage of justice standard, warranting§ 2255 relief.8

Further, because Appellees suffer from an error in applying the
substantive law of punishment, rather than mere procedural error,
Supreme Court precedent indicates that the complete miscarriage of
justice standard is fulfilled. There have been five cases dealing with
non-constitutional, non-jurisdictional errors. All four of the cases in
which the Supreme Court rejected habeas relief involved errors of a
procedural nature. See Reed v. Farley, 512 U.S. 339, 349-50 (1994)
(failure to comply with statutory 120 day limit to commence trial);
Addonizio, 442 U.S. at 184-90 (subsequent change in U.S. Parole
Commission's policies); United States v. Timmreck, 441 U.S. 780,
784-85 (1979) (error under Fed. R. Crim. P. 11 in procedure for tak-
ing a guilty plea); Hill v. United States, 368 U.S. 424, 428 (1962)
(denial of allocution at sentencing in violation of Fed. R. Crim. P.
32(a)). The case in which the Supreme Court granted relief involved
a change in the substantive law. See Davis v. United States, 417 U.S.
333 (1974). In that case the Supreme Court found cognizable on a
§ 2255 motion the non-constitutional claim that a subsequent decision
had narrowed a substantive statute, making it inapplicable to the
defendant. As the Supreme Court later explained Davis, "To have
refused to vacate his sentence would surely have been a `complete
miscarriage of justice,' since the conviction and sentence were no lon-
ger lawful." Addonizio, 442 U.S. at 187. See also United States v.
Bonnette, 781 F.2d 357, 363-64 (4th Cir. 1986) (complete miscarriage
_________________________________________________________________
8 I cannot see any meaningful difference between the words "funda-
mental" and "complete" in this context.

                    17
of justice standard satisfied if defendant "convicted under an errone-
ous interpretation of the law").

Error in applying the Sentencing Guidelines is more like the sub-
stantive error at issue in Davis than it is like the procedural error in
the other non-constitutional error cases. Much of the Supreme Court's
jurisprudence limiting the availability of the Great Writ was crafted
in an era before the Sentencing Guidelines. The Supreme Court has
not yet considered the nature of Sentencing Guidelines error in the
context of habeas relief. In my view, the Sentencing Guidelines effec-
tively serve as substantive laws of punishment. The Sentencing
Guidelines have replaced the traditional discretion of district courts
with formulaic precision, allowing deviations in only limited situa-
tions. Because of the very narrow role left to district judges, it is
effectively as if there had been two crimes here-- one establishing
the crime of second degree murder with a penalty range of 168-210
(135-168) months, the other establishing the crime of second degree
murder aggravated by restraint of the victim with a penalty range of
210-262 (168-210) months. If, in such a case, the defendants were
convicted of the more serious offense, and a subsequent decision clar-
ified that their acts did not amount to that crime, then the case would
be controlled by Davis. The situations are distinguishable -- the Sen-
tencing Guidelines define sentences, not the elements of crimes. Nev-
ertheless, the injustice is the same -- an enhanced sentence "from
being held responsible for an act of which he or she is actually inno-
cent," Maybeck, 23 F.3d at 893. And it is just this type of injustice
for which the Supreme Court granted relief in Davis and for which
we granted relief in Maybeck.

The cases cited by the majority holding to the contrary simply have
framed the question incorrectly. In their view, the question is whether
an "ordinary" error in applying the Sentencing Guidelines creates a
complete miscarriage of justice. The real issue, though, is whether it
is a complete miscarriage of justice to keep a defendant imprisoned
beyond the defendant's correct sentence. I think the answer is clear.
"[J]ustice consists not only of convicting the guilty, but also of
assigning them a lawful and just punishment." United States v.
Tayman, 885 F. Supp. 832, 844 (E.D. Va. 1995)."No court of justice
would require a man to serve [four] undeserved years in prison when
it knows that the sentence is improper." Ford , 88 F.3d at 1356.

                    18
V.

The crimes were not ones recommending lenience in sentencing.
Nor, however, are the additions of 52 months and 12 months provided
for. We frequently reject erroneous attempts to secure improper sen-
tencing reductions. But here the question is just the opposite one. It
involved a justifiable and correct attempt to secure reduction of the
improper lesser portions of the sentencing imposed, recognized to be
so by the district judge.

The government seeks just sentences not improper ones. It success-
fully insists on remand for increases of sentence when to do so would
lead to the correct and proper result. The country works well when
correction is required to insure the proper result, whether correction
would lead to lessening or increasing the sentence imposed. That
would insure equal treatment, i.e., justice applicable to all subject to
criminal punishment.

Accordingly, I respectfully dissent and regret the result reached by
my colleagues which I do not believe is required or in the fairest
interests of the country.

                    19
