## FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 09/03/98 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 97-3013

________________________ D. C. Docket Nos. 87-211-Cr-J-12 & 97-409-Civ-J-10 JOSEPH JAMES BURKE, Petitioner-Appellant,

versus UNITED STATES OF AMERICA, Respondent-Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________ (September 3, 1998) 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.
BACKGROUND Burke pleaded guilty to six counts of armed bank robbery in violation of 18 U.S.C. § 2113(a)(d). Two of the six robberies took place afte r 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 remained2 a fugitive from justice until his capture by the FB I, even though he knew th e FBI was pursuing him, and that he provided false identification when a pprehended. 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 provisi on, stating that post-offense flight and giving a false name ordinarily does not c onstitute obstruction of justice. See U.S. S ENTENCING G UIDELINES M ANUAL § 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 fo r 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 c ourt 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 the3 fact that amendment 347 is a clarifying amendment to support his argument that the amendment should apply retroactively to him. However, so mewhat 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. Burk e claims actual prejudice in the fact that the improper application of the obstruction-of-justice enhancement increased his sentence.
DISCUSSION 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, 67 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 (1994) (quoting Hill v. United States , 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L.Ed.2d 417 (1962)) (alteration in original). At least one of our sister circuits has explic itly held that a claim that the sentence imposed is contrary to a subsequently enacted clarifyi ng amendment is a non-constitutional issue that does not provide a basis for collateral relief in the ab sence 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 (1996); see also United States v. Payne , 99 F.3d 1273, 1281-82 (5th Cir. 1996) (holding that a4 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 States , 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 interp retation 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 th e 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 departur e 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 rath er 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,1 We have in the past opted to address the issues of procedural default, cause, and prejudice rather than determine whether a senten cing 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. 5 923 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 fundamenta lly 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 th at does not provide a basis for collateral relief in the absence of a complete miscarriage of jus tice. 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

AFFIRMED.