to the Guidelines, its application does not violate the ex post facto clause. See Bertoli, 40 F.3d at 1405. The Government argues that because Amendment 597 to U.S. Sentencing Guidelines Manual § 2Fl.l(b)(4)(B) resolved a Circuit split on whether the “judicial process” included a bankruptcy proceeding, it was a clarifying amendment. However, where an amendment overrules a prior judicial construction of the guideline it is substantive. See Bertoli, 40 F.3d at 1405; United States v. Diaz, 245 F.3d 294, 303 (3d Cir.2001). Because this Circuit has previously held that “judicial process” did not include bankruptcy proceedings, see Thayer, 201 F.3d at 226-28, Brennan argues the change rendered by Amendment 597 is substantive. Cf. also United States v. Butner, 277 F.3d 481, 489 (4th Cir.2002) (<HOLDING>). If the amendment is indeed substantive in
holding that amendment 597 is substantive and noting that the sentencing commission did not label it as clarifying holding that sentencing court had discretion under sentencing statute noting that the legislature has demonstrated its ability to use restrictive language when it desires to do so holding that a law did not violate the first amendment because it did not burden the exchange of ideas and noting most laws restricting a states initiative process would not implicate the first amendment holding that it is not holding that there is no sixth amendment right to jury sentencing