Prevatte v. Merlak, No. 15-2378 (7th Cir. 2017)Annotate this Case
In 1992, Prevatte was convicted of detonating a pipe bomb that destroyed property and resulted in the death of a bystander, Antkowicz, 18 U.S.C. 844(i). If the bomb had not caused a death, the maximum sentence Prevatte could have received would have been 10 years. The judge found that the bomb did cause the death; Prevatte was sentenced to 44 years’ imprisonment. Prevatte filed a habeas corpus petition, 28 U.S.C. 2241, claiming that under the Supreme Court’s 2014 “Burrage” decision, the jury, not the judge, should have made the finding that the bomb was the but-for cause of Antkowicz’s death so that his enhanced sentence was illegal and a miscarriage of justice. The district court dismissed Prevatte’s petition. The Seventh Circuit affirmed. Burrage is not about whether a judge or jury makes the “death results” finding, but clarifies that the underlying crime, the detonation of the bomb, must be a but-for cause of death and not merely a contributing factor. Prevatte could have argued that the government did not prove that the bomb was a but-for cause of death at trial, on direct appeal or in his initial section 2255 motion. The unrebutted evidence established that the bomb was the but-for cause of Ms. Antkowicz’s death. Prevatte’s enhanced sentence is neither illegal nor a miscarriage of justice.