                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________

No. 15-2378

RUSSELL PREVATTE,
                                                Petitioner-Appellant,

                                 v.

STEVEN MERLAK,
                                               Respondent-Appellee.
                     ____________________

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

   ARGUED SEPTEMBER 9, 2016 — DECIDED AUGUST 1, 2017
                     ____________________


   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,
2                                                   No. 15-2378

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 Burrage 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
Burrage 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
No. 15-2378                                                   3

correct in holding that Prevatte’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
4                                                  No. 15-2378

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 retroactive to cases on collateral review and
that Prevatte could not demonstrate he is actually innocent of
his conviction and sentence. Prevatte now appeals.
                        II. ANALYSIS
   Prevatte maintains that he is entitled to relief under
Burrage because the jury in his case did not find beyond a
reasonable doubt that his conduct was a but-for cause of
Antkowicz’s death. Respondent counters that Prevatte
No. 15-2378                                                     5

misreads the holding of Burrage because it did not address the
respective roles of the judge and jury. Instead, Burrage simply
clarified that for a “death results” penalty enhancement to
apply, the underlying criminal offense must be a but-for cause
of death. We review the district court’s denial of Prevatte’s
§ 2241 petition de novo. Brown v. Caraway, 719 F.3d 583, 586
(7th Cir. 2013).
   A. Requirements of a Petition Under § 2241
    Generally speaking, a federal prisoner seeking to
challenge the legality of his sentence must bring a motion
under 28 U.S.C. § 2255. As noted above, Prevatte has filed
§ 2255 petitions previously and his current claim does not
meet the standard to bring a successive petition under
§ 2255(h). However, § 2255(e) provides that if § 2255 is
“inadequate or ineffective to test the legality of his detention,”
Prevatte may file an application for a writ of habeas corpus
under 28 U.S.C. § 2241. This is known as the “savings clause”
of § 2255 and it “… will permit a federal prisoner ‘to seek
habeas corpus only if he had no reasonable opportunity to
obtain earlier judicial correction of a fundamental defect in his
conviction or sentence because the law changed after his first
2255 motion.’” Montana v. Cross, 829 F.3d 775, 783 (7th Cir.
2016) (quoting In re Davenport, 147 F.3d 605, 611 (7th Cir.
1998)).
    To establish that § 2255 was “inadequate or ineffective to
test the legality of his detention,” Prevatte must satisfy the
following three-part test:
       (1) that he relies on “not a constitutional case,
       but a statutory-interpretation case, so [that he]
       could not have invoked it by means of a second
6                                                    No. 15-2378

       or successive section 2255 motion,” (2) that the
       new rule applies retroactively to cases on
       collateral review and could not have been
       invoked in his earlier proceeding, and (3) that
       the error is “grave enough … to be deemed a
       miscarriage of justice corrigible therefore in a
       habeas corpus proceeding,” such as one
       resulting in “a conviction for a crime of which
       he was innocent.”
Id. (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). If
Prevatte demonstrates that his claim meets all three of these
factors, he would be authorized, under § 2255(e), to bring a
petition for habeas corpus pursuant to 28 U.S.C. § 2241.
    1. Prevatte Satisfies First Prong Because Burrage is a
    Statutory Interpretation Case
    Prevatte meets the first prong of the above test because
Burrage is a statutory interpretation case. As noted above, in
Burrage the Supreme Court was interpreting the provision of
the Controlled Substances Act that increases the mandatory
minimum sentence for a defendant who distributes a
Schedule I or II drug and “death or serious bodily injury
results from the use of such substance.” Burrage, 134 S. Ct. at
885 (quoting 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C)). Specifically,
the Court “… consider[ed] whether the mandatory-minimum
provision applies when use of a covered drug supplied by the
defendant contributes to, but is not a but-for cause of, the
victim’s death or injury.” Id.
    In Burrage, the defendant was indicted under 21 U.S.C.
§ 841(a)(1) and 28 U.S.C. §841(b)(1)(C) for distributing heroin
that “resulted” in the death of Joshua Banka. Before Banka
No. 15-2378                                                   7

died, he had taken a number of different drugs in addition to
the heroin the defendant Marcus Burrage had sold to him. The
question of whether Banka’s death “result[ed] from the use
of” the heroin sold to him by Burrage was put to the jury. Id.
at 886. The jury was instructed that it could convict Burrage if
it found “that the heroin distributed by the Defendant was a
contributing cause of Joshua Banka’s death.” Id. The jury
convicted Burrage and he was sentenced to twenty years’
imprisonment, the mandatory minimum sentence for a
conviction under § 841(b)(1)(C). The Eighth Circuit approved
the “contributing-cause” jury instruction and affirmed the
conviction.
   The Supreme Court reversed holding that:
       … at least where use of the drug distributed by
       the defendant is not an independently sufficient
       cause of the victim’s death or serious bodily
       injury, a defendant cannot be liable under the
       penalty enhancement provision of 21 U.S.C. §
       841(b)(1)(C) unless such use is a but-for cause of
       death or injury.
Id. at 892. So, the Supreme Court found the penalty
enhancement provision of 21 U.S.C. § 841(b)(1)(C) could not
be applied in cases like Burrage’s, where the government
could only prove that the heroin supplied by Burrage was a
contributing cause of Banka’s death but could not prove it
was a but-for cause of death. Id. at 892.
   2. Burrage is Retroactive
   Although Prevatte meets the first prong of the test to
determine if § 2255 was “inadequate or ineffective to test the
legality of his detention,” he cannot satisfy the second prong,
8                                                     No. 15-2378

that requires that the new rule upon which he relies is both
retroactive to cases on collateral review and could not have
been invoked by Prevatte in an earlier proceeding. We accept
Respondent’s concession in this court that Burrage is
retroactive. However, we note that Respondent argued before
the district court that Burrage is not retroactive to cases on
collateral review. The district court agreed that Burrage is not
retroactive for two reasons: (1) because the Supreme Court
has not yet declared Burrage to be retroactive to cases on
collateral review; and (2) in the district court’s view, Burrage
was merely an extension of non-retroactive cases, such as
Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any
factor that increases the penalty for a crime beyond the
statutory maximum must be proven to a jury beyond a
reasonable doubt.
    Based on opinions we have issued after the district court
made its rulings in the instant case, we respectfully disagree
with the district court. First, in Price v. United States, 795 F.3d
731 (7th Cir. 2015), we held that even if the Supreme Court
has not explicitly stated that a particular case is retroactive to
cases on collateral review, if the Court’s previous holdings
“… logically permit no other conclusion than that the rule is
retroactive,” the Supreme Court will have been deemed to
have “made” the rule retroactive. Id. at 733 (quoting Tyler v.
Cain, 533 U.S. 656, 669 (2001) (O’Connor, J., concurring)).
Second, in Krieger v. United States, 842 F.3d 490 (7th Cir. 2016),
we rejected the contention that Burrage is merely an extension
of non-retroactive cases such as Apprendi. The Krieger court
stated, “The Burrage holding is not about who decides a given
question (judge or jury) or what the burden of proof is
(preponderance versus proof beyond a reasonable doubt). It
is rather about what must be proved.” Id. at 499-500. The
No. 15-2378                                                     9

Krieger court then held that “what must be proved,” that the
drug supplied by the defendant was the but-for cause of
death and not merely a contributing factor, “… narrowed the
scope of the ‘death results’ enhancement [of the Controlled
Substances Act] and [Burrage] is thus substantive and applies
retroactively.” Id. at 497; see also Gaylord v. United States, 829
F.3d 500, 505 (7th Cir. 2016) (accepting government’s
concession that Burrage applies retroactively).
   3. Prevatte Fails to Satisfy Second Prong Because He
   Could Have Brought Burrage-Type Claim Earlier
    Although Burrage is retroactive, Prevatte cannot satisfy the
second prong of the test to determine if § 2255 was
“inadequate or ineffective” to challenge the legality of his
sentence because Prevatte could have made a Burrage-type
argument, i.e., that there was not sufficient evidence to prove
that the bomb was a but-for cause of death of Ms. Antkowicz,
in his direct appeal or in his initial § 2255 motion. Such an
argument was not foreclosed by circuit precedent. See
Montana, 829 F.3d at 784 (“… the second prong is satisfied if
’it would have been futile’ to raise a claim in the petitioner’s
original ‘section 2255 motion, as the law was squarely against
him.’” (quoting Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir.
2015) (en banc)). See also Morales v. Bezy, 499 F.3d 668, 672 (7th
Cir. 2007) (“Only if the position is foreclosed (as distinct from
not being supported by—from being, in other words, novel)
by precedent …” can a petitioner satisfy the second prong of
the test).
    In fact, Prevatte does not assert that circuit precedent
foreclosed the argument that the government had to prove
that the bomb was a but-for cause of Ms. Antkowicz’s death
for the “death results” penalty enhancement in the federal
10                                                           No. 15-2378

arson statute to apply to him. Instead, he contends that circuit
precedent foreclosed the argument that a jury had to find
beyond a reasonable doubt that the bomb was a but-for cause
of Ms. Antkowicz’s death rather than a judge making such a
finding by a preponderance of the evidence. Prevatte is
correct that at the time he was tried and convicted, the judge
made the finding by a preponderance of the evidence that the
bomb caused Ms. Antkowicz’s death and it likely would have
been futile to argue that the jury should have made the
finding. However, Burrage is not the case that changed that—
Apprendi is. 1 As noted above, Apprendi is the case in which the
Supreme Court held, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490-491. But Apprendi cannot help
Prevatte because it is not retroactive to cases on collateral
review. Curtis v. United States, 294 F.3d 841 (7th Cir. 2002).
     4. Prevatte Fails to Satisfy Third Prong Because No
     Miscarriage of Justice Occurred
   In addition to not meeting the second prong of the test to
determine if § 2255 was “inadequate or ineffective,” Prevatte

1
  It is true that the Burrage court stated, “Because the ‘death results’
enhancement increased the minimum and maximum sentences to which
Burrage was exposed, it is an element that must be submitted to the jury
and found beyond a reasonable doubt.” Burrage, 134 S. Ct. at 887.
However, this statement was not part of the Court’s holding because in
Burrage the question of whether the drug sold to the victim by the
defendant “resulted in” the death of the victim was put to the jury, albeit
with the wrong causation standard. So, the aforementioned statement
was merely “foundational” and was not part of the Court’s holding.
Krieger, 842 F.3d at 499.
No. 15-2378                                                    11

fails to satisfy the third prong as well because he cannot show
an error “grave enough … to be deemed a miscarriage of
justice …” Montana, 829 F.3d 783 (quoting Brown, 696 F.3d at
640). There was unrebutted testimony submitted at trial to
demonstrate that the pipe bomb was the but-for cause of Ms.
Antkowicz’s death. As summarized above, law enforcement
testified regarding the injuries Ms. Antkowicz had suffered
when she was found at the site of the bomb blast and the
pathologist that performed her autopsy confirmed that there
was nothing that would have caused Antkowicz’s injuries
other than the pipe bomb blast. Had Apprendi been decided
before Prevatte’s trial, and had the trial court submitted the
question of whether the bomb was a but-for cause of death of
Ms. Antkowicz to the jury, the jury would have found,
beyond a reasonable doubt, that the bomb was a but-for cause
of Ms. Antkowicz’s death. This is not a case like Burrage where
multiple drugs ingested by the victim may or may not have
caused the victim’s death. In this case, the evidence presented
was clear and unrebutted that the only thing that killed Ms.
Antkowicz was the pipe bomb which was detonated only
thirteen feet away from her.
    Despite the plethora of evidence presented at trial to show
that the pipe bomb was the but-for cause of Ms. Antkowicz’s
death, Prevatte argues that there has been a “miscarriage of
justice” because the judge, rather than the jury, made the
“death results” finding. While we agree with Prevatte that
§ 2241 can be invoked to challenge an illegal sentence, see, e.g.,
Brown v. Caraway, 719 F.3d 583, 585 (7th Cir. 2013), we find
that Prevatte’s sentence is not illegal because the evidence
established that the pipe bomb was the but-for cause of the
victim’s death. The judge’s finding that the bomb was the
but-for cause of death was fully supported by the evidence
12                                                  No. 15-2378

and Prevatte has pointed to no evidence to undermine that
finding.
    Prevatte cites our ruling in Narvaez v. United States, 674
F.3d 621 (7th Cir. 2011) to try to support his claim that his
sentence is illegal and therefore a “miscarriage of justice,” but
Narvaez is distinguishable. In Narvaez, the defendant pled
guilty to bank robbery. The sentencing court found the
defendant to be a career offender under the Sentencing
Guidelines, based on two prior escape convictions for failing
to return to confinement, which were deemed to be “crimes
of violence,” and so the court increased his sentence by
approximately five years. Id. at 623-624. Several years after the
court imposed the enhanced sentence, the Supreme Court
clarified what constituted a “violent felony” under the Armed
Career Criminal Act (“ACCA”) and the term “violent felony”
under the ACCA had the same definition as “crime of
violence” under the Sentencing Guidelines. See Chambers v.
United States, 555 U.S. 122 (2009); Begay v. United States, 553
U.S. 137 (2008). Narvaez filed a motion under § 2255 to correct
his sentence asserting that, under Chambers and Begay, his
convictions for failing to return to confinement were not
“crimes of violence” and therefore he should not have
received an enhanced sentence as a career offender. We
agreed and stated that erroneously classifying Narvaez as a
career offender and wrongly enhancing his sentence “…
clearly constitutes a miscarriage of justice.” Narvaez, 674 F.3d
at 629.
   In contrast to the defendant in Narvaez, Prevatte is not
undeserving of the enhanced sentence he received.
Assuming, without deciding, that Burrage’s holding that
but-for causation is required to impose an enhanced sentence
No. 15-2378                                                           13

under the “death results” provision of 18 U.S.C. § 844(i), 2 the
evidence presented at Prevatte’s trial unequivocally
established that the pipe bomb was the but-for cause of Ms.
Antkowicz’s death. Because Prevatte’s enhanced sentence
was not in any way a “miscarriage of justice,” he cannot show
that § 2255 was “inadequate or ineffective to test the legality
of his detention” and accordingly, the district court correctly
dismissed his petition.
    One final issue raised by Respondent is whether the
district court was correct in dismissing Prevatte’s § 2241
petition without prejudice for lack of jurisdiction. We have
previously held that “[s]ections 2241 and 2255 deal with
remedies; neither one is a jurisdictional clause.” Harris v.
Warden, 425 F.3d 386, 388 (7th Cir. 2005); see also Hicks v.
Stancil, 642 Fed. Appx. 620, 621 (7th Cir. 2016) (“… failure to
satisfy § 2255(e) does not affect the subject-matter jurisdiction
to consider a § 2241 petition”) (unpublished); Sperberg v.
Marberry, 381 Fed. Appx. 602 (7th Cir. 2010) (“[w]hether the
proceeding is allowable under § 2255(e) is a question on the
merits;      it     does       not      affect    subject-matter
jurisdiction”)(unpublished); Collins v. Holinka, 510 F.3d 666,
667 (7th Cir. 2007) (“[i]f … § 2255 offered him one full and fair
opportunity to contest his conviction …, then the § 2241 action
must be dismissed under § 2255[e]”); Moore v. Olson, 368 F.3d
757, 759 (7th Cir. 2004) (“[s]ubject-matter jurisdiction,


2
  Burrage interpreted the “death results” provision of the Controlled
Substances Act that is similar, but not identical to the “death results”
provision of § 844(i). Respondent does not affirmatively dispute the
applicability of Burrage’s holding to § 844(i). Accordingly, we assume,
without deciding, that Burrage’s requirement of but-for causation applies
to the “death results” provision of § 844(i).
14                                                 No. 15-2378

however, is supplied by 28 U.S.C. § 1331, as any claim under
§ 2241 entails a federal question”). But see Williams v. Warden,
Federal Bureau of Prisons, 713 F.3d 1332, 1340 (11th Cir. 2013)
(citing cases indicating that the savings clause of § 2255(e) is
jurisdictional). Given our circuit precedent, we find that
Prevatte’s petition should be dismissed with prejudice under
28 U.S.C. § 2255(e).
                     III. CONCLUSION
   We AFFIRM the district court’s dismissal of the petition but
REMAND to the district court to modify the judgment to reflect
that the dismissal is with prejudice pursuant to 28 U.S.C.
§ 2255(e).
