September 9, 2016
from the United States District Court for the Central
District of Illinois. No. 15 CV 01034 - James E. Shadid,
Posner, Manion, and Williams, Circuit Judges.
Williams, Circuit Judge.
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.
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.
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.
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.
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.
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.
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.
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 ...