                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 13-1554
AUGUSTUS LIGHT,
                                             Petitioner-Appellant,

                                v.

JOHN F. CARAWAY, Warden,
                                            Respondent-Appellee.
                    ____________________

         Appeal from the United States District Court for the
          Southern District of Indiana, Terre Haute Division.
    No. 2:12-cv-00292-JMS-MJD — Jane E. Magnus-Stinson, Judge.
                    ____________________

      ARGUED MAY 20, 2014 — DECIDED AUGUST 4, 2014
                    ____________________

   Before KANNE, TINDER, and HAMILTON, Circuit Judges.
   TINDER, Circuit Judge. In 2003, Petitioner-Appellant Au-
gustus Light was convicted in Minnesota federal district
court on one count of firearm possession by a felon. The
presentence investigation report (“PSR”) prepared by the
probation office suggested that Light should be treated as an
“armed career criminal” under the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (“ACCA”), and subject to the corre-
sponding offense level and criminal history category boosts
2                                                          No. 13-1554

provided by § 4B1.4 of the Sentencing Guidelines. These en-
hancements apply when a defendant has “three previous
convictions … for a violent felony or a serious drug of-
fense.” 1 The ACCA paragraph of the PSR stated that “in ad-
dition to the defendant’s two qualifying juvenile acts of vio-
lence” he had “at least three prior convictions for a violent
felony or serious drug offense.” One of the prior adult con-
victions identified in the PSR as a violent felony was a con-
viction for criminal vehicular operation resulting in substan-
tial bodily harm (“criminal vehicular operation”). The
ACCA paragraph also identified two other adult convic-
tions—third-degree burglary and a third-degree controlled
substances crime. In the “Criminal History” section of the
PSR, the probation officer enumerated all of Light’s previous
criminal history, and specified that, inter alia, Light also had
a felony conviction for fleeing a peace officer in a motor ve-
hicle.



1 In relevant part, the portion of ACCA defining “violent felony” pro-
vides:
        [T]he term “violent felony” means any crime punishable by im-
        prisonment for a term exceeding one year, or any act of juvenile
        delinquency involving the use or carrying of a firearm, knife, or
        destructive device that would be punishable by imprisonment
        for such term if committed by an adult, that—
                (i) has as an element the use, attempted use, or threat-
                ened use of physical force against the person of another;
                or
                (ii) is burglary, arson, or extortion, involves use of ex-
                plosives, or otherwise involves conduct that presents a
                serious potential risk of physical injury to another… .
    18 U.S.C. § 924(e)(2)(B).
No. 13-1554                                                  3

    Following the recommendation in the PSR, the Minneso-
ta district court concluded that Light’s offense level was 33
with a criminal history category of VI, with a guideline im-
prisonment range of 235 to 293 months, rather than the
range of 120 to 150 months that it would have been without
the ACCA enhancement. In sentencing Light to 235 months’
incarceration, the district court did not specify which three
convictions supported the finding that Light was an armed
career criminal. After an unsuccessful direct appeal of his
conviction and sentence, Light challenged the ACCA en-
hancement in a 28 U.S.C. § 2255 petition, contending that the
use of the drug offense as one of the three predicate offenses
was improper. The district court denied this challenge and
declined a certificate of appealability, holding that Light’s
“criminal history include[d] a sufficient number of other
predicate offenses to support an armed career criminal sta-
tus without any reliance upon the objected to offense.” In
2008, the Supreme Court decided the case of Begay v. United
States, 553 U.S. 137, 139, 143 (2008), concluding that driving
under the influence of alcohol is not a “violent felony” as de-
fined by the ACCA, because the term “violent felony” ap-
plies only to crimes within the so-called “residual clause” of
the ACCA that are “roughly similar, in kind as well as de-
gree of risk posed,” to the specific felonies enumerated in the
statute. Light then sought leave from the Eighth Circuit to
file successive petitions under 28 U.S.C. § 2255, appealing
the use of his criminal vehicular operation conviction as a
predicate offense for the ACCA enhancement. The Eighth
Circuit denied those requests.
    He then filed a pro se habeas petition under 28 U.S.C.
§ 2241 in the Southern District of Indiana, where he is incar-
cerated. (The venue requirement in § 2241 is different from
4                                                   No. 13-1554

the venue requirement in § 2255: while an action under the
latter must be brought in the district of conviction, a petition
under § 2241 must be brought in the district of incarcera-
tion.) In filing his petition, Light relied on the “savings
clause,” 28 U.S.C. § 2255(e), which provides that
    An application for a writ of habeas corpus in behalf of
    a prisoner who is authorized to apply for relief by
    motion pursuant to this section, shall not be enter-
    tained if it appears that the applicant has failed to ap-
    ply for relief, by motion, to the court which sentenced
    him, or that such court has denied him relief, unless it
    also appears that the remedy by motion is inadequate
    or ineffective to test the legality of his detention.
    His petition contended that in light of Begay, he was enti-
tled to a sentence reduction because one of his predicate
ACCA convictions did not qualify as a “violent felony.” The
Indiana district court dismissed the habeas petition on the
grounds that relief under § 2255 had been available to him
and had not been “inadequate or ineffective to test the legali-
ty of his detention,” and consequently Light did not qualify
for the savings clause. The district court reasoned that “the
remedy afforded by § 2255 was anything but ‘unavailable’ or
ineffective to test the validity” of Light’s conviction. Light
timely appealed. We review the denial of his habeas petition
de novo, and all of the district court’s factual determinations
for clear error. Blake v. United States, 723 F.3d 870, 879 (7th
Cir. 2013).
No. 13-1554                                                   5

                               I
    We begin with the threshold question of whether Light
qualifies for the savings clause. Ordinarily a federal prisoner
seeking to attack his sentence or conviction collaterally must
bring an action under § 2255, “the federal prisoner’s substi-
tute for habeas corpus,” in the district of conviction. Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012). The “essential func-
tion” of § 2255 “is to give a prisoner a reasonable opportuni-
ty to obtain a reliable judicial determination of the funda-
mental legality of his conviction and sentence.” In re Daven-
port, 147 F.3d 605, 609 (7th Cir. 1998). Only in rare circum-
stances where § 2255 is “inadequate or ineffective to test the
legality of the prisoner’s detention” may relief be granted
under the federal habeas corpus statute, 28 U.S.C. § 2241,
Brown v. Rios, 696 F.3d at 640 (quoting 28 U.S.C. § 2255(e)),
and such an action must be brought in the district of incar-
ceration, 28 U.S.C. § 2241(a). Section 2255 provides a means
by which a prisoner may bring a second, successive § 2255
petition if he invokes “a new rule of constitutional law,
made retroactive to cases on collateral review by the Su-
preme Court, that was previously unavailable,” 28 U.S.C.
§ 2255(h)(2), but is silent on how a prisoner can challenge his
sentence based on a new and retroactive statutory decision,
Davenport, 147 F.3d at 610. For this reason, our circuit allows
for a § 2241 challenge based on a new statutory interpreta-
tion by the Supreme Court, provided three conditions set
forth in Davenport are satisfied:
   First, the prisoner must show that he relies on a “stat-
   utory-interpretation case,” rather than a “constitu-
   tional case.” Second, the prisoner must show that he
   relies on a retroactive decision that he could not have
6                                                  No. 13-1554

    invoked in his first § 2255 motion. “The third condi-
    tion is that [the] sentence enhancement … have been a
    grave enough error to be deemed a miscarriage of jus-
    tice corrigible therefore in a habeas corpus proceed-
    ing.”
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (quoting
Brown v. Rios, 696 F.3d at 640) (internal citations omitted).
    The first Davenport condition is not under contention
here; we have before noted that Begay was a statutory inter-
pretation case, and that this condition is satisfied in chal-
lenges based on Begay’s interpretation of “violent felony”
under the ACCA. Brown v. Rios, 696 F.3d at 640. Nor is the
third Davenport condition in dispute: we have concluded that
“fundamental sentencing defect[s],” such as “a misapplica-
tion of the [then-]mandatory career offender Guideline[,]
present[] a cognizable non-constitutional claim for initial col-
lateral relief because the error resulted in a miscarriage of
justice.” Brown v. Caraway, 719 F.3d at 587. We do not find,
and the government does not raise, a limiting principle that
would distinguish an erroneous application of a mandatory
Guideline from an erroneous enhancement under the
ACCA, and which would lead us to the conclusion that the
erroneous application of the ACCA is not a cognizable claim
for collateral relief.
    We therefore review the second Davenport condition on-
ly. Light contends that the second Davenport condition is met
because Begay was a retroactive decision that could not have
been invoked in his first § 2255 motion. We have applied
two different tests in this context. In Brown v. Rios, we simp-
ly concluded that the prisoner could not have invoked Begay
because Begay hadn’t been decided by the time of the peti-
No. 13-1554                                                   7

tioner’s first § 2255 motion. Brown v. Rios, 696 F.3d at 640.
Under this standard, Light would meet the second Davenport
prong because Begay was issued almost two years after
Light’s initial § 2255 motion. In other cases, however, we
have “employed a slightly higher standard,” requiring that
the prisoner “show that his claim was ‘foreclosed by binding
precedent’ at the time of his direct appeal and § 2255 mo-
tion.” Brown v. Caraway, 719 F.3d at 595 (quoting Hill v. Wer-
linger, 695 F.3d 644, 648 (7th Cir. 2012)). We reasoned that
“the fact that a position is novel does not allow a prisoner to
bypass section 2255 … . Only if the position is foreclosed (as
distinct from not being supported by—from being, in other
words, novel) by precedent is a § 2255 remedy inadequate.”
Hill, 695 F.3d at 648 (quoting Morales v. Bezy, 499 F.3d 668,
672 (7th Cir. 2008)) (internal quotation marks omitted). To
satisfy this standard, the prisoner must show that “if [he]
had made the argument he currently advances . . . he clearly
would have lost under” the precedent of the jurisdiction.
Brown v. Caraway, 719 F.3d at 595.
    Binding precedent at the time of Light’s initial § 2255 mo-
tion barred his current claim that his criminal vehicular op-
eration conviction is not a violent felony under the ACCA. In
a case decided six months before Light’s initial § 2255 mo-
tion, the Eighth Circuit held that a “crime of violence” under
the ACCA was not “limited to violent crimes of active ag-
gression,” but that it included “conduct that presents a seri-
ous potential risk of physical injury to another,” regardless
of the offender’s intent. United States v. McCall, 439 F.3d 967,
970–71 (8th Cir. 2006). Light’s argument that criminal vehic-
ular operation—arguably not a crime of active aggression,
but one that involves serious risk of injury to another—was
not a crime of violence under the ACCA was thus foreclosed
8                                                  No. 13-1554

under the Eighth Circuit’s jurisprudence at the time of his
initial § 2255 motion. Consistent with this fact, the Eighth
Circuit has stated in multiple cases subsequent to Begay that
the Supreme Court’s decision overruled the circuit’s prior
interpretations of what constitutes a violent crime for the
ACCA. See, e.g., United States v. Heikes, 525 F.3d 662, 664 (8th
Cir. 2008) (stating that in Begay, “the Supreme Court over-
ruled our interpretation of § 924(e)(1) and held driving un-
der the influence of alcohol is not a violent felony as defined
in the Armed Career Criminal Act”); United States v. Com-
stock, 531 F.3d 667, 679 (8th Cir. 2008) (quoting Heikes).We
believe that these facts suffice to meet the heightened
Hill/Brown v. Caraway standard that requires that the claim
have been foreclosed by existing binding law, not merely
unsupported by prior jurisprudence.
    The government argues that because McCall concerned
the specific offense of driving while intoxicated, not criminal
vehicular operation, Light’s challenge was not foreclosed by
specific precedent. However, this argument ignores the fact
that the holding of McCall is phrased in sufficiently broad
language that encompasses both criminal vehicular opera-
tion and driving while intoxicated—both crimes that are not
“violent crimes of active aggression” like the enumerated
crimes in the ACCA, such as burglary, extortion, or arson.
And interpreting a court’s statements of this nature to en-
compass categories of logically-related offenses, rather than
only the specific offense in question, is indubitably the more
economical use of judicial resources.
   Finding that Light satisfies all three Davenport factors and
was eligible to file a petition for habeas relief under the sav-
ings clause of § 2255(e), we proceed to the merits.
No. 13-1554                                                   9

                               II
    The district court never adjudicated Light’s § 2241 claim
on the merits, but our consideration of the merits leads us to
the same conclusion as the district court’s: Light is not eligi-
ble for relief. Through intervening changes in the law, one of
his prior predicate offenses for the ACCA enhancement no
longer qualifies, but one that was not previously a qualifying
predicate offense has become eligible. The net change is ze-
ro. Light is still eligible for the ACCA enhancement.
    It is true that under current law, Light’s criminal vehicu-
lar operation conviction is no longer a qualifying predicate
offense for the ACCA enhancement. Criminal vehicular op-
eration is not specifically described or named in the violent
crimes definition of the statute, and the residual clause of the
definition “encompasses only purposeful crimes; crimes
with the mens rea of recklessness do not fall within its
scope.” United States v. Woods, 576 F.3d 400, 412–13 (7th Cir.
2009). “In Begay … the Court rejected a reading of the ACCA
that would have allowed the drunk driver’s intentional acts
of drinking and driving, followed by recklessness with re-
gard to the behavior that the statute made criminal (behavior
that represented the consequences of the intentional act of
drinking), to satisfy the statute.” Id. at 409. As with the
drunk driving statute in Begay, the Minnesota criminal ve-
hicular operation statute in effect at the time of Light’s con-
viction in 2001, Minn. Stat. § 609.21, did not require a mens
rea of deliberateness; the Minnesota statute required a mens
rea of recklessness: “gross[] negligen[ce]” or “negligen[ce] …
while under the influence of” alcohol or another controlled
substance. And because the criminal vehicular operation
charge does not qualify as a predicate crime of violence un-
10                                                   No. 13-1554

der the ACCA, it cannot be counted as one of the three re-
quired for the sentencing enhancement.
    However, in the intervening period between Light’s sen-
tencing and our review, the Supreme Court has also clarified
its understanding of the residual clause in a way which re-
flects on another one of Light’s convictions. His Minnesota
conviction for fleeing a peace officer in a vehicle was not
considered a violent crime when he was sentenced, but now
would be considered one. In Sykes v. United States, 131 S. Ct.
2267, 2270 (2011), the Supreme Court held that a conviction
for felony flight from a law enforcement officer in a vehicle
is a violent felony as the term is used by the ACCA. The
Court observed that “[w]hen a perpetrator defies a law en-
forcement command by fleeing in a car, the determination to
elude capture makes a lack of concern for the safety of prop-
erty and persons of pedestrians and other drivers an inher-
ent part of the offense.” Sykes, 131 S. Ct. at 2273–74. This “in-
difference” to collateral consequences and “risk of violence”
to police officers and bystanders places vehicular flight in
the class of violent crimes encompassed by the residual
clause of the ACCA. Id. The Eighth Circuit promptly adopt-
ed the Supreme Court’s rationale in United States v. Bartel,
698 F.3d 658, 662 (8th Cir. 2012), cert. denied, 133 S. Ct. 1481
(2013), holding that a defendant’s prior Minnesota vehicular
flight convictions—convictions identical to Light’s convic-
tion for fleeing a peace officer in a motor vehicle—qualified
as ACCA predicate offenses. Bartel remains good law in the
Eighth Circuit. See, e.g., United States v. Pate, No. 13-1207, ---
F.3d ---, 2014 WL 2535302, at *1 (8th Cir. Jun. 6, 2014).
   Light argues that we should read Sykes to not apply to
the Minnesota statute under which he was convicted, in di-
No. 13-1554                                                         11

rect contradiction of the Eighth Circuit’s jurisprudence on
this question. In the alternative, Light argues that we should
selectively take note of the change in law: he argues that
while the change in Begay should apply retroactively in his
favor, due process concerns should stop us from applying
Sykes and Bartel retroactively against him. We consider these
arguments in turn.
                                  A
    Light argues that the Minnesota statute under which he
was convicted is distinguishable from the Indiana statute in
Sykes. In dicta, Sykes noted that the structure of the vehicular
flight statute that was then in effect, Ind. Code § 35-44-3-3, 2
reflected the intent to treat all vehicle flight, whether aggra-
vated or not, “as crimes of the same magnitude.” Sykes, 131
S. Ct. at 2276. The Court based this observation on the fact
that both vehicle flight generally, and vehicle flight in which
the offender “operates a vehicle in a manner that creates a
substantial risk of bodily injury to another person,” were
categorized as class D felonies by the Indiana statute. Id.
Light points out that unlike the Indiana statute in Sykes,
Minnesota’s statute in effect at the time of Light’s vehicular
flight conviction penalized flight in a motor vehicle differ-
ently from flight that resulted in death or bodily injury. Sub-
division 3, the general vehicular flight clause, provided that
the perpetrator “may be sentenced to imprisonment for not
more than three years and one day or to payment of a fine of
not more than $5,000, or both.” Minn. Stat. § 609.487 subd. 3
(1999). By contrast, Subdivision 4, applying to aggravated


2Indiana’s law on resisting law enforcement by fleeing in a vehicle has
been amended and recodified as Ind. Code 35-44.1-3-1.
12                                                   No. 13-1554

vehicular flight, provided three different levels of penalty:
“[i]f the course of fleeing results in death,” “[i]f the course of
fleeing results in great bodily harm,” and “[i]f the course of
fleeing results in substantial bodily harm.” Minn. Stat.
§ 609.487 subd. 4(a)–(c). Light argues that this distinction be-
tween the statutes is material: that because he was convicted
under the simple vehicular flight provision rather than the
aggravated one, his variety of vehicular flight was not a
crime of violence, at least not one that can be classified as a
violent felony under Sykes.
   Light’s argument is faulty for several reasons. First, his
argument ignores the fact that the Court heavily leaned on
the risks created by felony vehicular flight, as opposed to the
outcome thereof, to determine that vehicle flight was a vio-
lent crime.
     Risk of violence is inherent to vehicle flight. Between
     the confrontations that initiate and terminate the inci-
     dent, the intervening pursuit creates high risks of
     crashes. It presents more certain risk as a categorical
     matter than burglary. It is well known that when of-
     fenders use motor vehicles as their means of escape
     they create serious potential risks of physical injury to
     others. Flight from a law enforcement officer invites,
     even demands, pursuit. As that pursuit continues, the
     risk of an accident accumulates. And having chosen
     to flee, and thereby commit a crime, the perpetrator
     has all the more reason to seek to avoid capture.
Sykes, 131 S. Ct. at 2274.
Just because the outcome of a particular defendant’s flight is
not death or bodily injury to others does not mean that the
No. 13-1554                                                  13

defendant did not risk grave injury to others in attempting
flight in a vehicle. It is easy to imagine an extraordinarily
risky—yet quite lucky—perpetrator who flees from a police
officer by driving the wrong way on a bustling highway
with reckless disregard for the lives of his fellow drivers, yet
manages to avoid killing or seriously injuring anyone he en-
counters. Such a perpetrator would be punishable under
Subdivision 3 of the Minnesota statute, yet it is difficult to
see how the perpetrator would avoid the clear logic of Sykes.
     Moreover, the Eighth Circuit has already considered this
specific question and concluded that a conviction under
Subdivision 3 of the Minnesota vehicular flight statute con-
stitutes a violent crime, one that qualifies as a predicate of-
fense for the ACCA enhancement. Shortly after Sykes was
decided, the Eighth Circuit followed the Court’s reasoning in
Bartel, “hold[ing] that a violation of Minnesota Statute
§ 609.487, subd. 3 presents a serious potential risk of physical
injury to another and is therefore a violent felony under the
ACCA.” Bartel, 698 F.3d at 662 (internal quotation marks
omitted). The Eighth Circuit recently “reaffirm[ed]” that Bar-
tel is good law, rejecting a defendant’s assertion that Minne-
sota’s generalized vehicle flight provision was not a violent
felony under the ACCA. Pate, 2014 WL 2535302, at *4. We
decline to contradict the Eighth Circuit’s sound interpreta-
tion of this statute and thereby create an unnecessary circuit
split.
14                                                  No. 13-1554

                               B
    In the alternative, Light argues that we should not con-
sider his vehicle flight conviction a predicate offense for the
ACCA enhancement for due process reasons. He argues that
neither the PSR nor the Minnesota district court ever identi-
fied his vehicle flight conviction as a predicate offense for
the purposes of the ACCA. It is true that “due process pro-
hibits retroactive application of any judicial construction of a
criminal statute [that] is unexpected and indefensible by ref-
erence to the law which has been expressed prior to the con-
duct in issue.” Rogers v. Tennessee, 532 U.S. 451, 455 (2001)
(internal quotation marks and citations omitted). However,
Light presents no evidence in support of his argument that
the Court’s interpretation that felony vehicular flight is a
violent crime was an unexpected and indefensible change,
“a novel construction of a criminal statute to conduct that
neither the statute nor any prior judicial decision has fairly
disclosed to be within its scope.” United States v. Lanier, 520
U.S. 259, 266 (1997). In essence, he argues that the decision in
Sykes post-dated his sentencing, and that he could not have
necessarily foreseen this change in the law at the time of his
sentencing hearing. Be that as it may, Sykes did not consti-
tute an “unexpected and indefensible” change; it was a reso-
lution of an uncertain question of law, an opportunity for the
Court to “clarify … prior opinions as new circumstances and
fact patterns present themselves.” Rogers, 532 U.S. at 461. In
recent years, the Court has spoken frequently on the scope of
the ACCA’s residual clause. See, e.g., Descamps v. United
States, 133 S. Ct. 2276 (2013) (a generic burglary conviction is
not a violent felony within the meaning of the ACCA); Sykes,
131 S. Ct. at 2267; Johnson v. United States, 559 U.S. 133 (2010)
(a battery conviction is not a violent felony within the scope
No. 13-1554                                                  15

of the residual clause); Chambers v. United States, 555 U.S. 122
(2009) (failing to report is not a violent felony under the
ACCA); James v. United States, 550 U.S. 192 (2007) (attempted
burglary is a violent felony within meaning of the residual
clause). In light of the numerous recent cases elaborating on
the scope of the ACCA’s residual clause, we do not find per-
suasive Light’s argument that there was an element of un-
due surprise about the Supreme Court’s consideration of
whether felony flight is a violent crime.
   This anti-retroactivity argument is even less persuasive
in the context of this case, as Light is simultaneously at-
tempting to benefit from a retroactive change in the law. We
cannot see why Light is entitled to a one-way ratchet, subject
only to changes in law that benefit him but immune from
changes in law that are not helpful.
                              III
   For the foregoing reasons, we AFFIRM the decision below.
