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Prevatte v. Merlak

United States Court of Appeals, Seventh Circuit

August 1, 2017

Russell Prevatte, Petitioner-Appellant,
v.
Steven Merlak, Respondent-Appellee.

          Argued September 9, 2016

         Appeal from the United States District Court for the Central District of Illinois. No. 15 CV 01034 - James E. Shadid, Chief Judge.

          Before Posner, Manion, and Williams, Circuit Judges.

          Williams, Circuit Judge.

         Russell Prevatte was convicted of detonating a pipe bomb in an alley that destroyed property and resulted in the death of an innocent bystander, Emily Antkowicz, in violation of 18 U.S.C. § 844(i). If the pipe bomb had not caused a death, at the time of his conviction, the maximum sentence Prevatte could have received for the violation of § 844(i) would have been ten years. However, because the judge found at sentencing that the bomb did cause the death of Ms. Antkowicz, Prevatte was ultimately sentenced to forty-four years' imprisonment on that count.

         Prevatte filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that under Burr age v. United States, 134 S.Ct. 881 (2014), the jury, not the judge, should have made the finding that the bomb was the but-for cause of Ms. Antkowicz's death and because that did not happen, his enhanced sentence is illegal and a miscarriage of justice. The district court dismissed Prevatte's petition without prejudice for lack of jurisdiction and he appealed.

         We agree with the district court that Prevatte's petition should be dismissed, but our reasoning is different than that of the district court. First, our court has already found that Burr age is not about whether a judge or jury makes the "death results" finding, but instead clarifies that the underlying crime, in this case the detonation of the bomb, must be a but-for cause of death and not merely a contributing factor to the death. Second, Prevatte could have argued that the government did not prove that the bomb was a but-for cause of death at his trial, as part of his direct appeal or as part of his initial § 2255 motion. No circuit precedent prevented him from making such an argument. Third, and perhaps, most importantly, the unrebutted evidence at trial established that the bomb was the but-for cause of Ms. Antkowicz's death. So Prevatte's enhanced sentence is neither illegal nor a miscarriage of justice. For these reasons, the district court was correct in holding that Prevaire's petition for habeas corpus should be dismissed.

         I. BACKGROUND

         A jury found Russell Prevatte guilty in 1992 of fourteen counts of explosive and firearm violations related to his involvement in a series of bombings and burglaries. Count two, the count relevant here, charged that Prevatte detonated a pipe bomb that resulted in the death of Emily Antkowicz, in violation of 18 U.S.C. § 844(i). At the time, the statutory default maximum sentence under § 844(i) was ten years' imprisonment. However, the statute also provided that "if death results to any person ... as a direct or proximate cause of conduct prohibited by this subsection, " then the offender would be subject to an enhanced sentence of up to life in prison.

         The trial court did not instruct the jury on the "death results" element of § 844(i), and it did not make such a finding when Prevatte was convicted on count two. At trial, the jury heard that Antkowicz, a bystander, who did not know Prevatte or his associates, was standing about thirteen feet from where the pipe bomb was detonated. An officer who responded to the scene testified that Antkowicz "looked as if she had been pelted" and as if "she had been hit by a shotgun." The pathologist who performed the autopsy testified that he found no indication of any condition that would have caused Antkowicz's injuries other than the pipe bomb blast.

         At Prevatte's initial sentencing hearing, the judge adopted the factual statements in the Presentence Investigation Report's findings of fact, including that Antkowicz was killed by fragmentation from the pipe bomb set off by Prevatte and a co-defendant. Prevatte was sentenced to life in prison on count two but, after two successful appeals, his sentence was reduced to forty-four years' imprisonment.

         In 2014, the Supreme Court considered a sentencing enhancement provision in the Controlled Substances Act that provides for an enhanced penalty "if death or serious bodily injury results from the use of" a controlled substance supplied by the defendant. 21 U.S.C. § 841(b)(1); Burrage v. United States, 134 S.Ct. 881 (2014). The Court ruled in Burrage that a defendant cannot receive the enhancement unless the controlled substance use "is a but-for cause of the death or injury." 134 S.Ct. at 892.

         Relying on Burrage, in 2015, Prevatte filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his sentence. (He had previously filed unsuccessful motions under 28 U.S.C. § 2255 and § 2241 alleging different theories.) The district court found that Prevatte failed to show that § 2255 was inadequate or ineffective to test the validity of his sentence and dismissed his petition under § 2241 without prejudice for lack of jurisdiction. The district court later denied Prevatte's motion for reconsideration, ruling that Burrage was not ...


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