    Case: 15-10606     Document: 00513836141     Page: 1   Date Filed: 01/16/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals

                                  No. 15-10606
                                                                           Fifth Circuit

                                                                         FILED
                                                                    January 16, 2017
                                                                     Lyle W. Cayce
                                                                          Clerk
TIOFILA SANTILLANA,

                                            Petitioner–Appellant,

versus

JODY UPTON, Warden, Federal Medical Center Carswell,

                                            Respondent–Appellee.




                 Appeal from the United States District Court
                      for the Northern District of Texas




Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Tiofila Santillana filed a petition for writ of habeas corpus under
28 U.S.C. § 2241, claiming that she is entitled to relief under Burrage v. United
States, 134 S. Ct. 881 (2014). The district court dismissed the petition for lack
of jurisdiction, finding that Santillana had not satisfied the “savings clause” of
28 U.S.C. § 2255(e) because Burrage is not retroactively applicable on
    Case: 15-10606     Document: 00513836141      Page: 2   Date Filed: 01/16/2017



                                  No. 15-10606
collateral review.    Because Burrage applies retroactively, we reverse and
remand.

                                        I.
      Santillana was convicted in 2009 of distributing a schedule II controlled
substance (methadone) that resulted in the death of Brandon Moore, in viola-
tion of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We described the facts in detail in
our opinion from Santillana’s direct appeal, United States v. Santillana,
604 F.3d 192, 193–95 (5th Cir. 2010).

      In that appeal, Santillana contended, inter alia, that there was insuffi-
cient evidence to show that Moore’s death “result[ed]” from methadone within
the meaning of § 841(b)(1)(C). Santillana conceded that all three medical wit-
nesses, including her own expert, concluded that methadone was at least a
contributing cause of death. She maintained, however, that the plain meaning
of “results” implies “a stronger degree of causation than mere contribution.”
She did not explain what that “stronger degree of causation” might be. We
affirmed, explaining that even if Santillana were correct, “there was sufficient
evidence for a reasonable jury to conclude that Moore’s death resulted from his
use of methadone under a heightened standard of causation.” Santillana,
604 F.3d at 196–97.

      Thereafter, in Burrage, the Court “h[eld] 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 the death or injury.” Burrage, 134 S. Ct. at 892. Santillana
filed a habeas petition under § 2241, alleging that, under Burrage’s interpret-
tation of “results,” she is actually innocent of her § 841(b)(1)(C) conviction. The
district court dismissed for lack of jurisdiction because it concluded that,
                                        2
     Case: 15-10606         Document: 00513836141         Page: 3    Date Filed: 01/16/2017



                                        No. 15-10606
absent an explicit holding from the Supreme Court, it lacked the authority to
determine whether Burrage was retroactively applicable.

                                               II.
       Ordinarily, to attack a conviction collaterally, a federal prisoner can seek
relief only by a § 2255 petition. Kenemore v. Roy, 690 F.3d 639, 640 (5th Cir.
2012). But under the “savings clause” of § 2255(e), he may file a § 2241 habeas
petition if § 2255 is “inadequate or ineffective to test the legality of his deten-
tion.” Section 2255 is “inadequate or ineffective” if
    (1) the [§ 2241] petition raises a claim “that is based on a retroactively
    applicable Supreme Court decision”; (2) the claim was previously “fore-
    closed by circuit law at the time when [it] should have been raised in
    petitioner’s trial, appeal or first § 2255 motion”; and (3) that retro-
    actively applicable decision establishes that “the petitioner may have
    been convicted of a nonexistent offense.”
Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010) (quoting Reyes-Requena v.
United States, 243 F.3d 893, 895 (5th Cir. 2001)) (first alteration added). “The
petitioner bears the burden of demonstrating that the section 2255 remedy is
inadequate or ineffective.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).

                                               A.
       Although we have not yet considered whether Burrage is applicable
retroactively, 1 our caselaw “establishes that new [Supreme Court] decisions
interpreting federal statutes that substantively define criminal offenses auto-
matically apply retroactively.” 2 Such interpretative decisions “decid[e] for the


       1 In Wade v. Werlich, 648 F. App’x 425 (5th Cir. 2016) (per curiam), a petitioner raised
a Burrage claim via a § 2241 petition, and we held that he had not met his burden to show
that § 2255 was inadequate or ineffective to test the legality of his detention. We did not
explain, however, why he had not met the burden, and so the opinion—in addition to being
unpublished and thus nonprecedential—does not constitute a holding on any one of the
savings-clause prongs.
       2   Garland, 615 F.3d at 396 (alteration added); see also Schriro v. Summerlin, 542 U.S.
                                                3
     Case: 15-10606        Document: 00513836141           Page: 4      Date Filed: 01/16/2017



                                         No. 15-10606
entire country how courts should have read the statute since it was enacted.”
Kenemore, 690 F.3d at 641. They apply retroactively because they “necessarily
carry a significant risk that a defendant stands convicted of an act that the law
does not make criminal . . . .” Schriro, 542 U.S. at 352 (quoting Bousley,
523 U.S. at 620) (quotation marks omitted). We have held several such Su-
preme Court decisions to be retroactive. 3

       The district court dismissed Santillana’s petition because it concluded
that it lacked authority to determine whether Burrage was retroactively
applicable. It relied on Tyler v. Cain, 533 U.S. 656, 662–63 (2001), which held
that for a prisoner to file a second or successive habeas petition based on a new
rule of constitutional law, the Supreme Court must have held the rule to be
retroactive to cases on collateral review. But the holding in Tyler depends on
statutory language providing that the “new rule of constitutional law [be] made
retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C.
§ 2244(b)(2)(A) (emphasis added).

       In contrast, the retroactivity element of our savings-clause analysis is
not tethered to a similar statutory limitation. Our precedent requires only that
a § 2241 petition be based on a “retroactively applicable Supreme Court deci-
sion,” without specifying that the Supreme Court must have made the




348, 351–52 (2004) (“New substantive rules generally apply retroactively. This includes deci-
sions that narrow the scope of a criminal statute by interpreting its terms . . . .”) (citing Bous-
ley v. United States, 523 U.S. 614, 620–21 (1998)).
       3 For example, in United States v. McPhail, 112 F.3d 197, 199 (5th Cir. 1997), we held
that Bailey v. United States, 516 U.S. 137 (1995), is retroactive. Bailey, 516 U.S. at 142–43,
holds that “uses or carries a firearm” in 18 U.S.C. § 924(c)(1) means “active employment of
the firearm.” Similarly, in Garland, 615 F.3d at 397, we held that United States v. Santos,
553 U.S. 507 (2008), is retroactive. Santos, 553 U.S. at 528 n.7 (2008) (Stevens, J., concurring
in the judgment), holds that in certain circumstances, “proceeds” in 18 U.S.C. § 1956 must be
defined as “profits.” Under the Marks rule, Justice Stevens’s opinion provides the holding of
the Court. Garland, 615 F.3d at 399–404.
                                                4
    Case: 15-10606        Document: 00513836141        Page: 5    Date Filed: 01/16/2017



                                      No. 15-10606
determination of retroactivity. Garland, 615 F.3d at 394. Indeed, Garland
states that Supreme Court decisions that substantively interpret federal stat-
utes “automatically apply retroactively.” Id. at 396 (emphasis added). We thus
proceed to consider the retroactivity of Burrage.

      On its face, Burrage is a substantive decision that interprets the scope of
a federal criminal statute. See Krieger v. United States, 842 F.3d 490, 499–500
(7th Cir. 2016) (holding that Burrage is a retroactively applicable, substantive
decision); cf. Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir. 2015) (per
curiam) (concluding that Burrage challenges are cognizable under § 2255). 4 At
issue in Burrage was the meaning of “death or serious bodily injury results.”
The Court held that “at least where use of the drug distributed by the defen-
dant 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 the
death or injury.” Burrage, 134 S. Ct. at 892. That holding “narrow[s] the scope
of a criminal statute,” Schriro, 542 U.S. at 351, because but-for causation is a
stricter requirement than are some alternative interpretations of “results.”

      Indeed, that was the precise issue in Burrage. There, the Eighth Circuit
had decided that a drug needed to be only a “contributory cause” of death, and
so had affirmed the sentence under § 841(b)(1)(C). 5 The government conceded
that there was no evidence that the victim would have lived but for his drug
use. Burrage, 134 S. Ct. at 892. Because the Eighth Circuit had affirmed
“based on a markedly different understanding of the statute,” and the govern-
ment conceded but-for causation, the Court reversed. Id.


      4   The government should have disclosed this adverse authority.
      5  United States v. Burrage, 687 F.3d 1015, 1021, 1026 (8th Cir. 2012) (citation
omitted).
                                             5
     Case: 15-10606         Document: 00513836141        Page: 6    Date Filed: 01/16/2017



                                        No. 15-10606
       Some courts have advanced a different reading of Burrage, interpreting
it not as a substantive decision but instead as an application of the procedural
rules in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 133 S. Ct. 2151 (2013). 6 Accordingly, they have held that Burrage is
not retroactively applicable. 7 Those decisions “[are] simply incorrect.” Krieger,
2016 WL 6872902, at *8. “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)”—those questions are the province of
Apprendi and Alleyne—but “is rather about what must be proved.” Id. In sum,
as a substantive decision narrowing the scope a federal criminal statute, Bur-
rage applies retroactively to cases on collateral review.

                                              B.
       The government urges us to affirm the dismissal on the third prong of
the savings-clause test. It contends that even if Burrage is retroactively applic-
able, Santillana cannot meet her burden to show that “[she] may have been
convicted of a nonexistent offense.” Garland, 615 F.3d at 394 (quotation marks
omitted). We disagree.

       The government’s theory is essentially that the record contains evidence
that could support a finding of but-for causation, so Santillana’s conviction was
proper even in light of Burrage. The government relies on our statement from
her direct appeal that “there was sufficient evidence for a reasonable jury to



       6 E.g., Dixon v. Warden of FCI Schuylkill, 647 F. App’x 62, 64 (3d Cir. 2016) (per cur-
iam); Powell v. United States, No. 3:09CV2141 EBB, 2014 WL 5092762, at *2 (D. Conn.
Oct. 10, 2014). In Apprendi, 530 U.S. at 490, the Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In
Alleyne, 133 S. Ct. at 2155, the Court extended Apprendi’s holding to facts that increase the
mandatory minimum sentence.
       7   Dixon, 647 F. App’x at 64; Powell, 2014 WL 5092762, at *2.
                                               6
    Case: 15-10606         Document: 00513836141         Page: 7     Date Filed: 01/16/2017



                                        No. 15-10606
conclude that Moore’s death resulted from his use of methadone under a
heightened standard of causation.” Santillana, 604 F.3d at 196–97. But that
statement does not resolve the savings-clause inquiry. As an initial matter,
we did not define “heightened . . . causation” as but-for causation. To the con-
trary, we noted that Santillana had not identified what “stronger degree of
causation” she was arguing for. Id. at 196. Moreover, we stated only that a
reasonable jury could have found heightened causation; we did not hold that it
actually did so.

      Our precedents make certain that, when determining whether a peti-
tioner can show that he may have been convicted of a nonexistent offense, we
must look to what the factfinder actually decided. For example, in Garland,
the petitioner raised a claim based on United States v. Santos, 553 U.S. 507
(2008), in which the Court held that in certain circumstances, “proceeds” in
18 U.S.C. § 1956 must be defined as “profits.” 8 Looking to the indictment and
jury instructions, we explained that “the Government did not prove or attempt
to show that Garland engaged in money laundering with ‘proceeds,’ narrowly
defined as ‘profits’ rather than as ‘gross receipts’”; we concluded that he “was
potentially convicted of a nonexistent offense.” Garland, 615 F.3d at 404.

      In contrast, in Christopher v. Miles, 342 F.3d 378 (5th Cir. 2003), we held
that a petitioner had not met his burden. He had advanced a claim based on
Cleveland v. United States, 531 U.S. 12, 15 (2000), which held that a govern-
ment’s interest in licensing an activity is not a property interest for purposes
of conviction under the mail-fraud statutes. As in Garland, we looked to the
indictment and jury instructions:
   [E]ven if the jury were to have found that Christopher’s scheme started
   with defrauding regulators out of regulatory approvals, the indictment


      8   Santos, 553 U.S. at 528 n.7 (Stevens, J., concurring in the judgment).
                                               7
     Case: 15-10606       Document: 00513836141          Page: 8     Date Filed: 01/16/2017



                                       No. 15-10606
    alleged and the evidence at trial demonstrated that the “bottom line” of
    the scheme was to defraud the insurance companies of their assets. The
    fraudulent acquisition of regulatory approvals was merely incidental to
    the broader purpose of the scheme—defrauding the insurance compan-
    ies and their policyholders out of millions of dollars.
Christopher, 342 F.3d at 385. Because that action “unquestionably violate[d]
the wire fraud statute,” the petitioner had not shown that he had been con-
victed of a nonexistent offense. Id.

       This case looks more like Garland. The indictment states that “[t]he
cause of Moore’s death was acute mixed drug intoxication. More specifically,
the combination of methadone and benzodiazepine (“Xanax”) in Moore’s body
caused a synergistic central nervous and respiratory depression that led to
irreversible anoxic brain injury . . . .” In Count One, the indictment says that
“Moore’s [ ] use of [the] methadone resulted in his death,” but it makes no other
reference to causation. The district court instructed the jury that “[i]f you find
the defendant guilty of distributing methadone, then you must determine if
the Government has proved beyond a reasonable doubt that Brandon Moore’s
death resulted from his use of methadone distributed by the defendant.” 9
Based on the indictment and instruction, we cannot say that the jury found
that methadone was a but-for cause of death. Moreover, unlike in Christopher,
we cannot say that what the jury did find was criminal activity. It is possible
that it found that methadone was merely a contributing cause of death, the
exact problem in Burrage. Thus, Santillana has satisfied her burden to show
that she was potentially convicted of a nonexistent offense.




       9  The district court additionally instructed the jury that it need not find that Moore’s
death was a “reasonably foreseeable event from the defendant’s perspective.” But that does
not speak to but-for causation. See Burrage, 134 S. Ct. at 887 (“The law has long considered
causation a hybrid concept, consisting of two constituent parts: actual cause and legal
cause.”).
                                               8
    Case: 15-10606   Document: 00513836141    Page: 9   Date Filed: 01/16/2017



                               No. 15-10606
     The judgment of dismissal is REVERSED and REMANDED. We place
no limitation on the matters that the district court can consider on remand,
and we express no opinion on what decisions it should make.




                                     9
