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 provided 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 resen-tencing 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 sentencing enhancement which they received. Citing the “ordinary” nature of the error at issue, see ante at 496, the majority finds itself powerless to prevent the Appellees from serving over five years of admittedly erroneous 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.
I.
The defendants were rightfully convicted for second-degree murder. 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 victim’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 decision.
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 challenged 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 interpretation of the sentencing guideline under which they were sentenced erroneous, Appellees would still be unable to avail themselves of § 2255 relief. Cf. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (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 procedural default and no waiver of that bar by the government: “I believe that the defendant has a substantive right to review an illegal 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
*498III.
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, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). While the “actual 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 sentencing determinations. See, e.g., Sawyer v. Whitley, 505 U.S. at 339, 112 S.Ct. 2514; Dugger v. Adams, 489 U.S. 401, 410-12 n. 6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (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, 112 S.Ct. 2514. 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 underlying 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, 112 S.Ct. 2514.
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 sentences, we see little difference between holding that a defendant can be innocent of the acts required to enhance a 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 consequence (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 applying 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 494. 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, 106 S.Ct. 2639, or sentenced, see Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (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 *499innocence exception3 as an alternative to, not a subset of, the cause and prejudice standard. See, e.g., Sehlup, 513 U.S. at 320, 115 S.Ct. 851.
The issue, then, is not whether the actual innocence exception swallows the cause and prejudice rule, since they are entirely separate; 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 difference from the stand point 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 388, 112 S.Ct. 2514; McCleskey v. Zant, 499 U.S. 467, 490-91, 111 S.Ct. 1454, 113 L.Ed.2d 517(1991); Teague v. Lane, 489 U.S. 288, 316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989);5 Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (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 proeedurally defaulted claims *500in Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). It was extended to cover sentencing error in Sawyer v. Whitley, 505 U.S. 333, 340-41, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Most recently the burden of proof was relaxed for certain cases in Schlup v. Delo, 513 U.S. 298, 323-24, 115 S.Ct. 851, 130 L.Ed.2d 808 (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 a foot. In a different context, we have stated:
[Sentencing a defendant at the wrong guideline range seriously 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 313-17, 321-29, 115 S.Ct. 851. Since Appellees have alleged error at their sentencing, i.e., that their “sentenee[s][are] too severe,’’the appropriate standard of review is that articulated in Sawyer v. Whitley, 505 U.S. at 336, 112 S.Ct. 2514: Appellees must show by clear and convincing evidence that but for the error, petitioners would have been ineligible for the penalty which they received.7 See Schlup, 513 U.S. at 325-26 & 326 n. 44, 115 S.Ct. 851. Here, but for the erroneous application of the § 3A1.3 enhancement, Appellees would have been ineligible for the sentences which they received.
IV.
In my view, once a defendant satisfies the actual innocence standard, 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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). As the majority opinion shows, see ante at 493, and Supreme Court opinions confirm, the actual innocence doctrine is based on a “fundamental miscarriage of justice” standard. See, e.g., Schlup, 513 U.S. at 320-21, 115 S.Ct. 851; Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, 505 U.S. at 339, 112 S.Ct. 2514; Mo*501ray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639. Thus, any prisoner who meets the actual innocence standard also meets the complete 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 ha-beas relief involved errors of a procedural nature. See Reed v. Farley, 512 U.S. 339, 349-50, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)(failure to comply with statutory 120 day limit to commence trial); Addonizio, 442 U.S. at 184-90, 99 S.Ct. 2235 (subsequent change in U.S. Parole Commission’s policies); United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (error under Fed.R.Crim.P. 11 in procedure for taking a guilty plea); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (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, 94 S.Ct. 2298, 41 L.Ed.2d 109 (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 longer lawful.” Addonizio, 442 U.S. at 187, 99 S.Ct. 2235. See also United States v. Bonnette, 781 F.2d 357, 363-64 (4th Cir.1986) (complete miscarriage of justice standard satisfied if defendant “convicted under an erroneous interpretation of the law”).
Error in applying the Sentencing Guidelines is more like the substantive 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 Guidélines error in the context of habeas relief. In my view, the Sentencing Guidelines effectively 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 situations. 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 clarified that their acts did not amount to that crime, then the case would be controlled by Davis. The situations are distinguishable — the Sentencing Guidelines define sentences, not the elements of crimes. Nevertheless, the injustice is the same — an enhanced sentence “from being held responsible for an act of which he or she is actually innocent,” 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 *502applying 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. “[Jjustice 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.
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 sentencing 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 successfully 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, ie., 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.
. While McLamb is not controlling authority, the reasoning here maybe regarded as acceptable logically.
. 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, 115 S.Ct. 851(em-phasis added). Since the Schlup Coart did not disapprove of this application of the actual innocence exception, the Court implicitly approved of its application to sentence enhancers.
. 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 doctrine.
. The government argues that Appellees were only potentially prejudiced by the district court’s error. The Government asserts that Appellees benefitted substantially from their plea agreements: even with the sentencing 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.
. 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 472, 1996 WL 79438, at **3 n. 4 (4th Cir.1996) (unpublished table disposition). 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.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180(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 subsequent decision narrowing substantive criminal statute). But see Boyer v. United States, 55 F.3d 296, 299 (7th Cir.1995).
. 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 conviction at trial — "the paramount event,” Herrera v. Collins, 506 U.S. 390, 416, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), in which society's resources have been concentrated, see id. at 401, 113 S.Ct. 853' — 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.
. 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).
. I cannot see any meaningful difference between the words "fundamental” and "com-píete” in this context.