author: POSNER, Circuit Judge.

text:
    FIRST AMERICAN BANK, Plaintiff-Appellant, v. FEDERAL RESERVE BANK OF ATLANTA, Citizens Bank, N.A., and David M. Goodson, Defendants-Appellees.
    No. 16-1122
    United States Court of Appeals, Seventh Circuit.
    Argued October 20, 2016
    Decided November 22, 2016

      Mark E. Wilson, Attorney, Fisher-Broyles, LLP, Chicago, IL, for Plaintiff-Appellant.
    Victoria R. Collado, Attorney, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL, for Defendants-Appellees Federal Reserve Bank of Atlanta and Citizens Bank, N.A.
    Edward X. Clinton, Jr., Julia Christine Williams, Attorneys, Law Offices of Edward X. Clinton, P.C., Chicago, IL, for Defendant-Appellee David M. Goodson.
    Before BAUER, POSNER, and KANNE, Circuit Judges.
   POSNER, Circuit Judge.

This is a complicated case regarding contested liability for a counterfeit check; we shall simplify ruthlessly.

In 2013 an Illinois lawyer named David M. Goodson received an email from a person who represented himself or herself to be a woman named “Fumiko Anderson.” The email stated that she wanted to hire Goodson to help her recover money that she claimed to be owed in a divorce proceeding. Later Fumiko told him that her retaining a lawyer had convinced her ex-husband to settle, and that Goodson should expect a substantial check in the mail to cover his fee plus the amount of the settlement, which he was to pass on to her. The check that Goodson received, marked payable to the order of “Law Office David M. Goodson,” was drawn on the account of First Aid Corporation (an Illinois manufacturer—doing business as 1st Ayd Corporation—of industrial and sanitation products), at a Chicago bank named First American. The check looked like a real check but actually was counterfeit. The scammers wrote a check on First American for $486,750.33 to Goodson, which he deposited in his client trust account in Citizens Bank, N.A., one of the defendants in this case. Fumiko told Goodson she needed the money immediately. Goodson directed the bank to transfer it to a Japanese entity that he believed to be Fumiko but actually was part of an Internet-based fraudulent check scheme known as the “Fumiko Bandit.” So First Aid had lost the entire $486,750.33 that had been transferred out of its account by the fraudulent check; the money had been stolen by Fu-miko Bandit.

First American reimbursed First Aid, its defrauded and therefore unhappy client, but then turned to Citizens Bank in an effort to recover from it the money that it had transmitted to Goodson’s Citizens Bank account. Citizens refused, precipitating this suit by First American, which seeks back the $486,750.33 it has lost and names as defendants not only Goodson and Citizens Bank but also the Federal Reserve Bank of Atlanta, which as we’re about to see was involved in the transaction, though only peripherally.

The money had been on account at First American Bank and had been stolen by a fraudulent check, so the bank recred-ited its customer and brought this suit seeking to be reimbursed by the individual (Goodson) and the two banks (Citizens and the Atlanta Federal Reserve Bank) for its loss. See Illinois Uniform Commercial Code, 810 ILCS 5/4-407. The district court gave judgment for all three defendants, however, and First American appeals, urging several grounds for reversal. The first is breach of warranty. When Citizens deposited the $486,750.33 in Goodson’s account, it did so by an electronic rather than paper check (more precisely an electronic image of the paper check) and the electronic check passed through the Federal Reserve Bank of Atlanta en route to First American. The Federal Reserve Board’s Regulation J, 12 C.F.R. § 210.6(b)(3)(i)(A), provides that when a Federal Reserve Bank presents an electronic check (such as the check drawn on First American) for payment, “the electronic image ;.[must] accurately repre-sente ] all of the information on the front and back of the original check as of the time that the original check was truncated.” By “truncated” is just meant that an electronic image is substituted for the original paper check.

Some information that was on the original check was missing from the electronic version, but unavoidably so because it was information consisting of “characteristics of the check, such as watermarks, micro-printing, or other physical security features that cannot survive the imaging process,” and their absence from the electronic image, being inevitable, was not actionable. See Regulation CC, 12 C.F.R. Part 229, App. E, § 229.51(A)(3). Among the missing information was a warning box on the back of the check, often designed to resist scanning and so considered by the industry to be a security feature as well.

Had First American,been suspicious of the electronic image that it received from the Federal Reserve Bank of Atlanta, it could have demanded a “substitute check,” which is a paper printout that—to facilitate electronic transactions—is deemed the legal equivalent of the original paper check. This would have protected First American, because a “bank that transfers, presents, or returns a substitute check or a paper or electronic representation of a substitute check for which it receives consideration shall indemnify the recipient and any subsequent recipient (including a collecting or returning bank, the depositary bank, the drawer, the drawee, the payee, the depositor, and any indorser) for any loss incurred by any recipient of a substitute check if that loss occurred due to the receipt of a substitute check instead of the original check.” 12 C.F.R. § 229.53(a). Or it could have refused to honor the check.

First American didn’t seek indemnity and hasn’t shown that information on the original check that was omitted from the electronic image would, had it appeared on the electronic image, have aroused suspicions in First American that would have caused it to refuse to send the $486,750.33 to Goodson’s bank.

But we have now to consider some alternative arguments by First American for reversal, one being a claim against Goodson, Citizens Bank, and the Federal Reserve Bank of Atlanta—the bank through which the money passed en route to the Japanese fraudsters—for “restitution by mistake,” pursuant to the Illinois Uniform Commercial Code, 810 ILCS 5/3-418. First American was the victim of a mistake, all right, but Illinois law provides no remedy for such a victim against “a person who took the instrument in good faith and for value.” 810 ILCS 5/3-418(c). The lawyer and the two banks reasonably believed that they were engaged in the innocent, commonplace banking activity of forwarding a check to its intended final recipient on behalf of their clients. There is no claim or evidence that they knew they were siphoning money to criminals. Nor did they fall below “reasonable commercial standards of fair dealing.” 810 ILCS 5/3-103(a)(4) and comment 4. Another claim by First American is “negligent spoliation of evidence” in violation of Illinois common law, the spoliation being alleged to be Citizens Bank’s destruction of the original paper check after the bank made the electronic copy that it transmitted to the Federal Reserve Bank of Atlanta en route to the disappearance of the money in Japan. There is no duty to retain paper checks after an electronic substitute has been made—otherwise banks would drown in paper—provided there’s a record of the contents of the paper check, as there is of course in this case; we know what the electronic check omitted, and knowing that, we know the information that the original, the paper check, contained.

Last is First American’s claim against lawyer Goodson for professional negligence. But he had received the $486,750.33 check from First Aid believing it was part or all of the money that his client, Fumiko Anderson, had asked him to recover for her. The fact that the check came from Canada, from a company he didn’t recognize, rather than from an individual (Fumiko’s ex-husband), may have been suspicious circumstances, but maybe not, and in any event “the traditional, general rule has been that the attorney is liable only to his client, not to third persons. ... To establish a duty owed by the defendant attorney to the nonclient the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship.” Pelham v. Griesheimer, 92 Ill.2d 13, 64 Ill.Dec. 544, 440 N.E.2d 96, 99 (1982). First American, the plaintiff, was not a client of Goodson.

There are some other, minor issues, but we can rely on the district court’s resolution of them. There is no merit to the suit, which that court therefore rightfully dismissed.

AFFIRMED


source: Caselaw Access Project

author: ROVNER, Circuit Judge.

license: Public Domain

text:
    Jennifer Lynn KRIEGER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-2481
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 2016
    Decided November 22, 2016

      William J. Barrow, Attorney, Mayer Brown LLP, Washington, DC, for Petitioner-Appellant.
    George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Respondent-Appellee.
    Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
   ROVNER, Circuit Judge.

The first time this appeal was before us, on direct review, Jennifer Krieger was seeking to vacate the twenty-year sentence she received when her friend died after chewing a fentanyl pain patch provided by Krieger. At that time, she objected to the manner in which the government proved that “death resulted” from the distribution of the drugs—as a sentencing factor by a preponderance of the evidence, rather than as an element proved beyond a reasonable doubt—and also argued that the evidence was insufficient to support a finding that the victim’s death had occurred because of the fentanyl. Given the statutory sentencing structure in place at the time, and the fact that the district court found, by a preponderance of the evidence, that death had resulted from the distribution, there was only one sentence that the district court could give, and that was twenty years. The district court expressed discomfort with its lack of discretion and the fact that it appeared that Krieger was being sentenced for homicide despite having been convicted only of distributing fenta-nyl—concerns that this court echoed on appeal. Nevertheless, based on then current law, we found no error and affirmed the decision of the district court. After Krieger’s sentencing and after her direct appeal, the Supreme Court issued two decisions that touch on the very issues raised at Krieger’s sentencing. Consequently, on June 30, 2014, Krieger filed a petition under 28 U.S.C. § 2255 asking the court to vacate, set aside, and correct her sentence based on new Supreme Court rules that she argues should be applied retroactively on collateral review.

The facts below are both abridged and supplemented from the decision we issued on December 7, 2010, during Krieger’s first (direct) appeal as reported in United States v. Krieger, 628 F.3d 857, 869 (7th Cir. 2010).

The afternoon before Thanksgiving, 2005, Jennifer Curry’s mother found her nineteen-year-old daughter dead on a sofa at the home of Curry’s father. At the scene, investigators found, among other things, a chewed 100 microgram Duragesic patch. Duragesic is a brand name for a fentanyl skin patch, a powerful opioid that is delivered across the skin in small steady doses over the course of several days' to control pain. It is not meant to be ingested orally nor injected under the skin, but sometimes is by those who are abusing the drug. Of course, fentanyl is available only by prescription and, not surprisingly, Jennifer Curry did not have one. Her friend, Jennifer Krieger, however, had such a prescription and despite her pain from severe spinal cord and disk problems, she began selling the patches to others for $50 apiece or, as happened here, giving them to her friends. On November 22, 2005, Krieger filled her prescription for the patches and later that afternoon gave one to 'Curry. Krieger left Curry at around midnight and another witness saw Curry leave a bar with two men in the early hours of November 23. Curry arrived at her father’s home at approximately two o’clock in the morning. Her mother found her unresponsive at approximately four o’clock the next afternoon and arriving paramedics determined that Curry had been dead for some time. At the scene, the investigators found a hypodermic needle, a small pipe with burnt residue on it, and two red capsules. Neither the two red capsules nor the pipe were taken into evidence and tested. The syringe was not tested until three years later, at the request of the U.S. Attorney’s office. A medical examiner found traces of many drugs in Curry’s system, including cocaine, benzodiazepines, cannabirioids, and Oxycodone, but concluded that Curry died from fentanyl toxicity.

A federal grand jury returned a two-count indictment on January 5, 2006, charging Krieger with distribution of divers amounts of fentanyl with death resulting, under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(c). Krieger conceded that she gave Curry a patch. She denied, however, that the government proved sufficiently that Curry’s death resulted from her abuse of the fentanyl patch.

The government, it- seems, also quickly realized that its case for “death resulting” faced some heavy obstacles. In a strange twist of events, the government’s main witness, the medical examiner, Dr. John Heidingsfelder, fled .the country under a cloud of suspicion. It seems that Heidings-felder had legal problems of his own, including tax and ethics trouble, and had left the country and set up a practice in the Cayman Islands. Investigators for the United States Attorney’s office had been unable to track him down. Heidingsfelder also had been disciplined by the Indiana Medical Licensing Board for engaging in a prohibited personal relationship with a patient, for prescribing medication to his girlfriend/patient, and failing to keep abreast of current professional theory and practice. Apparently, Heidingsfelder had engaged in sexual contact with a patient under his care and provided her hydroco-done and other narcotic drugs. The woman committed suicide after Heidingsfelder terminated the relationship.

With the main witness unavailable, the government informed the court that it was engaged in good faith plea negotiations. When those negotiations failed, the government returned a one-count superseding indictment in which the “with death resulting” language of the indictment had been eliminated. In this superseding indictment, Krieger was charged only with distribution of divers amounts of fentanyl in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). The following day, Krieger filed a motion to dismiss the indictment arguing that the unavailability of the doctor who performed the autopsy presented an incurable confrontation clause and chain-of-custody problem. The district court denied the motion but left open the possibility that it would revisit the issue at a later time. On October 18, 2008, Krieger pleaded guilty to the superseding indictment with the specific exclusion that she was not pleading guilty to causing the death of Curry.

Although the government dropped the “with death resulting” charge from the indictment, which would require the government to prove .those facts beyond a reasonable-doubt, the government nevertheless sought to have Krieger sentenced under a statute that enhances the sentence if the government can prove, by a preponderance of evidence, that death resulted from the drug’s use. 21 U.S.C. § 841(b)(1)(C). That statute instructs, “[I]f death or serious bodily injury results from the use of such substance [such - person] shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” Id. Enhancing the sentence in this way - leads to a significant change in the sentence. Krieger’s pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. If the government could prove by the much more lax preponderance of the evidence standard that Curry’s death resulted from Krieger’s distribution of fentanyl, those facts would trigger a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C).

The court held a sentencing hearing on November 18 and 19, 2008, to-determine whether the fentanyl had resulted in the death of the victim. During that hearing, the government called numerous witnesses, including the previously unavailable but subsequently found Heidingsfelder. Krieger called Dr. Long, a forensic toxicologist who' testified regarding problems with evidence collection and who challenged the determination of the cause of death.

The “death resulting” evidence was muddled and slim. Krieger presented evidence that the investigators and doctor performing the autopsy focused exclusively or primarily on the fentanyl evidence while ignoring evidence related to the many other drugs in Curry’s system, in particular evidence of cocaine use. And of course, the misdeeds of the tax cheat, scofflaw medical examiner hung heavily in the air of the hearing. Nevertheless, after evaluating Dr, Heidingsfelder’s demeanor on the stand and his evidentiary presentation, the district court concluded that although his testimony about his personal life was not credible, his testimony as to how he conducted the autopsy and how he arrived at his conclusion as to the cause of Curry’s death was indeed credible. On appeal we accepted this factual finding regarding demeanor and credibility, noting that it could not be overturned unless we found that Heidingsfelder was incredible as .a matter of law, which we could not. Krieger, 628 F.3d at 869.

Heidingsfelder testified that he collected blood and vitreous fluid samples from Curry .and sent them to a private and reputable laboratory in Indianapolis. That lab reported fentanyl in Curry’s blood in the toxic to lethal range. Heidingsfelder found no external traumatic injuries and noted physical findings consistent with a drug overdose. Although Heidingsfelder noted needle marks on Curry’s left elbow, and the lab report indicated the presence of several other drugs in Curry’s system, Heidingsfelder testified that in his opinion, based on the facts known about her death, his examination of her body, and the, lab report, Curry’s death was caused by fenta-nyl toxicity, and not by the other drugs found in her system either taken alone or in combination. The government, likely because it recognized the problems with its main witness, Dr. Heidingsfelder, called three other experts: Dr. Mark LeVaughn, a physician specializing in forensic pathology, Dr. Michael Evans, a forensic toxicologist, and Dr. Cynthia Morris-Kukoski, a forensic toxicologist employed by the FBI lab. All bolstered Heidingsfelder’s finding of a toxic-to-lethal level of fentanyl. Krieger, in turn, called Dr, Long, a forensic toxicologist. Long criticized Heidingsfelder for failing to test the needle marks on Curry’s body, for his choice of location to draw blood, and for recording an incorrect time of death, among other things. He also questioned whether blood samples had been mishandled or placed in vials with the incorrect preservative. He maintained that the reports from the lab used by Heidings-felder and the FBI laboratory reports were either incomplete or inconsistent with each other. Finally, he testified that the blood was not tested immediately and therefore would not accurately indicate the use of cocaine. As he testified, “you can have somebody who overdoses on cocaine, and if the blood sample isn’t taken relatively close and preserved properly, all the cocaine' breaks down to benzoylecgonine and becomes an un-interpretable result.” Petitioner’s Sep. App. at 33 (R. 165, p. 19, Page ID 715). He questioned whether-the failure to investigate and follow up on other possible causes of death resulted in an incorrect determination of the cause of death. Nevertheless, he; admitted that the lab reports showed the presence of fenta-nyl in • Curry’s system in amounts that were four times the therapeutic range and thus potentially lethal. According to Dr. Evans,' a= toxicologist who testified, the therapeutic -range for fentanyl when used in such a patch is 1-3 nanograms per mil. Jennifer Curry’s was more than 13 nanograms per mil. (R. 164, p. 178, page ID 636). Deaths from fentanyl occur at amounts from 2.2 to 100 nanograms per mil. Id.

The police chief in charge of the investigation admitted to inadequate police work in some areas. Officers failed to collect into evidence and send for testing two red capsules in Curry’s bedroom. The syringe was not tested until three years after Curry’s death, but then was found to contain trace amounts of cocaine. The only items sent to the lab by the police department for testing were those pertaining to fentanyl.

On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry. In view of the conflicting evidence as to the cause of Curry’s death, the court concluded emphatically that the government would. not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with, that offense. The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that “the Government has established that' it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” United States v. Krieger, No. 06-CR-40001-JPG, 2009 WL 112428, at *4 (S.D. Ill. Jan. 16, 2009), aff'd, 628 F.3d 857 (7th Cir. 2010).

Once the court made the finding, by a preponderance of the evidence, that death resulted from the fentanyl, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) “if death results”—twenty years. Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the court could not impose a sentence greater than the twenty-year statutory limit for distribution of the drug—the crime to which Krieger pleaded guilty. But, given the twenty year minimum triggered by the court’s finding, by a preponderance of the evidence, that Curry’s death resulted from the distribution of fen-tanyl, neither could the court impose a sentence of less than twenty years. Without death resulting, the pre-sentence report reflected an advisory Guideline range of 10-16 months. And, in fact, our previous research indicated that the average length of incarceration for fiscal years 2006-2009 under 21 U.S.C. § 841 for distribution of fentanyl without death resulting was seven months. Krieger, 628 F.3d at 866. In short, in this case the mandatory minimum triggered by facts found by the court based on a preponderance- of the evidence in sentencing converged with the statutory maximum imposed for facts to which Krieger pleaded guilty as an element of the crime. The result was that the court could impose exactly one sentence—twenty years. The judge had no discretion whatsoever in the choice of sentence.

The district court at sentencing was uncomfortable, it seems, with the fact that “Krteger, while convicted of distribution of divers amounts of narcotics, is being sen-fenced for homicide.” Krieger, 2009 WL 112428, at *6. The court went on at some length criticizing the sentencing scheme, and declared that “had the Court the discretion to insist that the Government . prove beyond a reasonable doubt that the distribution to which Krieger pleaded guilty resulted in Curry’s death before imposing the statutory minimum sentence, it would have exercised that discretion in this case.” Id. The district court made it clear that it was sentencing Krieger to twenty years as it felt that it had no choice, but specifically noted .

had the Court the discretion to sentence Krieger within the entire statutory range for the crime to which she pled guilty, it would have applied the adjusted base offense level called for in U.S.S.G. § 2Dl.l(a)(2), finding that the Government has established the “death resulting” factor by a preponderance of the evidence. As a result, Krieger’s base offense level would have been 38. The Court would have given her three points off for acceptance of responsibility. As a result the Court would have found a net offense level of 35, criminal history category I, with an advisory guideline range of 168 to 210 months.

Id. at *8.

At the time of Krieger’s first appeal, only facts that increased the penalty of the crime beyond the mandatory statutory maximum had to be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Because the “death resulting” factor only increased the mandatory minimum, under existing law at the time, it did not have to be pleaded in the indictment and proved to a jury beyond a reasonable doubt, but rather could be found by a judge using a preponderance of the evidence standard just as the district court did below. Krieger, 628 F.3d at 867, 869; Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overruled by Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The district court stated, “the only reason the Court- would have to consider ‘death resulting’ to be an element of a separate crime rather than a sentencing factor is if it ran afoul of Apprendi.” Krieger, 2009 WL 112428, at * 5. But the court noted, correctly at the time, that it did not.

All of that changed, however, in 2013, when the Supreme Court issued its decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court held that facts that increase a mandatory minimum sentence (just like those that increase the mandatory maximum sentence) must be submitted to the jury and proved beyond a reasonable doubt. Id. If Alleyne were the law of the land at the time that Krieger was sentenced, therefore, the fact of “death resulting” would have had to be submitted to a jury and proved beyond a reasonable doubt. We know it likely would not have been because the district court said in no uncertain terms “had the Court applied the reasonable doubt standard, the Government would not have met its burden of proof in establishing that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in the latter’s death.” Krieger, 2009 WL 112428, at *4. In short, were Krieger to be sentenced today she could not be sentenced for Curry’s death unless the indictment had charged and a jury had found, beyond a reasonable doubt, that the fentanyl caused Curry’s death, a finding the district court did not think possible. Without the mandatory minimum, therefore, Krieger’s sentence would have been significantly shorter. In this case, the district court specifically forecast what his sentence would have been without the mandatory minimum—somewhere within the advisory guideline range of 168 to 210 months. Id. at *8.

The Alleyne decision, however, by itself, cannot help Krieger because this circuit has held that the rule announced in Al-leyne is procedural and therefore cannot be applied retroactively on a collateral review, such as this one. Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 424, 193 L.Ed.2d 319 (2015). But see id. at 632-33 (Williams, J., concurring) (a procedural rule that requires that criminal defendants must be convicted beyond a reasonable doubt is essential to ordered liberty and therefore should be applied retroactively). For that reason, this court vacated the portion of its certificate of appealability that allowed for claims under Alleyne, noting that it does not apply retroactively on collateral review. (Ct. App. R. 7).

Alleyne, however, was not the only relevant case the Supreme Court has issued since Krieger was sentenced. In 2014, the Supreme Court held that a defendant cannot be liable under the penalty enhancement provision for distribution of a drug with “death resulting”—the very same provision under which Krieger’s sentence was enhanced (28 U.S.C. 841(b)(1)(C))— unless such use of the drug was a but-for cause of death. Burrage v. United States, — U.S. -, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014).

A new rule announced by the Supreme Court applies to all cases still pending on direct review, but for cases such as this one, on collateral review where a final judgment has been issued, the rule applies only in certain circumstances. Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). One such circumstance is when the new rule is substantive. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (citing Schriro, 542 U.S. at 351, 124 S.Ct. 2519). Rules that “narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish” are substantive and thus apply retroactively. Schriro, 542 U.S. at 351-52, 124 S.Ct. 2519 (internal citations omitted). “Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Id. at 352, 124 S.Ct. 2519 (internal quotations omitted). In other words, “a rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 353, 124 S.Ct. 2519.

Krieger argues that Burrage narrowed the scope of a criminal statute at issue, § 841(b)(1)(C) and placed certain conduct “beyond the power of criminal law-making authority to prescribe” and thus is a substantive rule. The government agrees, conceding that Burrage is substantive because it defines an essential element of a federal crime in a way that creates the risk that individuals convicted before the Burrage decision were improperly convicted of that offense—or in this case, improperly subjected to the sentence mandated for that offense. Just recently we accepted this same concession by the government, that is that Burrage narrowed the scope of the “death results” enhancement and is thus substantive and applies retroactively. Gaylord v. United States, 829 F.3d 500, 505 (7th Cir. 2016). The government has made this same concession before several other courts which have likewise accepted the concession. See Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir. 2015) (“the government conceded ... Burrage applies retroactively”); see also, Weldon v. United States, No. 14-0691-DRH, 2015 WL 1806253, at *3 (S.D. Ill. Apr. 17, 2015) (the government conceded that Burrage is substantive in nature and is retroactive, but argued that it was inconsequential for other reasons), vacated on other grounds, No. 15-1994, 2016 WL 4468077 (7th Cir. Aug. 24, 2016); United States v. Schneider, 112 F.Supp.3d 1197, 1207 (D. Kan. 2015) (“The government concedes, and the court agrees, that Burrage announces a new substantive rule of law applicable to cases on initial collateral review.”), aff'd, No. 15-3247, 2016 WL 6543342 (10th Cir. Nov. 4, 2016); United States v. Snider, No. 3:07—CR-124-SI, 2016 WL 1453878, at *10 (D. Or. Apr. 13, 2016) (accepting government’s concession that Burrage standard applies).

The Supreme Court has not yet declared whether Burrage should be applied retroactively, but “[district and appellate courts, no less than the Supreme Court, may issue opinions” on initial petitions for collateral review holding in the first instance that a new rule is retroactive in the absence of a specific finding to that effect by the Supreme Court. Ashley v. United States, 266 F.3d 671, 673 (7th Cir. 2001); see also Butterworth v. United States, 775 F.3d 459, 465 (1st Cir.), cert. denied, — U.S. -, 135 S.Ct. 1517, 191 L.Ed.2d 450 (2015) (noting appellate court’s authority to decide if Alleyne should be applied retroactively); United States v. Swinton, 333 F.3d 481, 486 (3d Cir. 2003) (“courts of appeals and district courts may determine whether a novel decision of the Supreme Court applies retroactively.”) Our reasoning in Ashley was as follows:

An initial petition may be filed within a year of a decision that is “made retroactively applicable to cases on collateral review[.]” A second petition, by contrast, depends on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” (emphasis added). Both statutes make it clear that only the Supreme Court may issue the new decision. But who decides whether that new decision applies retroactively? The first formulation (“made retroactive”) leaves that question open. The second formulation (“made retroactive ... by the Supreme Court”) answers it. To treat the first, formulation as identical to the second is not faithful to the difference in language. By omitting the restriction contained in ¶ 8(2), ¶ 6(3) implies that courts of appeals and district courts may “make” the retroac-tivity decision. Tyler concludes that the word “made” in ¶ 8(2) means “held.” 533 U.S. [656, 664-65], 121 S.Ct. [2478] 2483 [150 L.Ed.2d 632 (2001) ]. District and appellate courts, no less, than the Supreme Court, may issue opinions “holding” that a decision applies retroactively to cases on collateral review. The jurisdictional (and precedential) scope of that holding differs, but it is a holding nonetheless.

Ashley, 266 F.3d at 673 (emphasis in original).

Of course we are not bound to accept the government’s concession when the point at issue is a question of law. Costello v. BeavEx, Inc., 810 F.3d 1045, 1061 n.4 (7th Cir. 2016). Nevertheless, that concession seems apt. In Burrage, the defendant was found guilty of distribution of heroin with death resulting from the use of that, heroin. Burrage, 134 S.Ct. at 886. The victim in that case had been on a drug bender and had multiple drugs from various sources in his body at the time of death. Burrage’s lawyer argued' that the jury had to find that the victim would not have died but for the use of the heroin distributed by Burrage. The court ultimately accepted the government’s jury instruction which required only that the jury find that the heroin was a contributing cause. The jury convicted, and the appellate court affirmed his conviction Id. The Supreme Court, however, 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 the death or injury,” Burrage, 134 S.Ct. at 892. This holding was critical in Burrage, as no expert was willing to say that the victim would have died from the heroin use alone, but it was clear that the heroin certainly contributed to an overall effect that caused the victim to stop breathing and die. Id. at 885, 890.

The lower courts that have concluded that Burrage cannot be applied retroactively have largely relied on the fact that the Supreme Court has riot so held. See footnote 1, supra. But as we explained extensively above, “[district and appellate courts, no less than the Supreme Court, may issue opinions” on initial petitions for collateral review holding in the first instance that a new rule is retroactive in the absence of a specific finding to that effect by the Supreme Court. Ashley, 266 F.3d at 673; And to the extent that some of those courts thought that Burrage was- just an extension of the procedural rule in Al-leyne,' they were simply incorrect. For example, one district court concluded that Burrage did not apply retroactively as it was “only about procedure—i.e., who decides a given question, judge versus jury, and under what standard, preponderance versus reasonable doubt.” Powell v. United States, No. 3:09-CV-2141, 2014 WL 5092762, at *2 (D. Conn. Oct. 10, 2014).

But this misunderstands the holding of Burrage. Burrage did reference Al-leyne to establish that “[b]eeause 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. This was a foundational issue in Burrage, however, and not its holding. 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. The holding of Burrage could not be more clear, for the Supreme Court set forth its holding, by stating, “We hold 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.” Id. at 892. In other words, the rule announced in Bur-rage altered the range of conduct that the law punishes. Schriro, 542 U.S. at 353, 124 S.Ct. 2519.

A hypothetical will help explain why this is so. Suppose a former law made it a crime to drive while impaired by alcohol, a term that was defined to mean that the accused has had any amount of alcohol in the previous twenty-four hours—even one sip. To enforce this law, the police used a breathalyzer that merely indicated the presence or absence of alcohol. Anyone whose breath registered the presence of alcohol was guilty of violating the law. Now suppose that the Supreme Court found that law to be impermissibly over-broad, and in response, jurisdictions narrowed the scope of their laws to state that a driver could not be considered to be impaired unless her blood alcohol level registered at .08% or greater—a threshold commonly thought to signal that the driver is impaired. This change' is a substantive rule change as it alters the range of conduct that it punishes and, as to defendants convicted under the former rule, it carries “a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Schriro, at 352, 124 S.Ct. 2519. A defendant convicted under the previous law for driving while impaired might have just a .02% blood alcohol level—an act that the law does not make criminal.

Just as in this hypothetical, the Burrage decision narrowed the scope of the behavior subject to punishment for “death resulting” by requiring that the drug at issue was the but-for cause of the victim’s death rather than merely a contributing cause of death. See Burrage, 134 S.Ct. at 893. As Krieger argues and the government concedes, the case law supports a finding that Burrage applied a new substantive rule that must be applied on collateral review.

Thus even if we set Alleyne aside for purposes of this collateral review, as we must (for it cannot be applied retroactively), in order to find that death resulted for purposes of the statutory minimum, the fentanyl would have to be shown to be the but-for cause of Jennifer Curry’s death.

Although the government concedes that Burrage applies retroactively, it nevertheless argues that the district court did indeed find that the fentanyl was the but-for cause of Curry’s death. We are not so certain. The application of the Burrage holding to a pre-Burrage case presents two problems for an appellate court trying to determine whether the government proved that Curry would have died “but for” the fentanyl that Krieger gave to her.

First, before Burrage, the district court had no reason to know that “but-for” causation was the requirement. Nor did the police, the prosecutor, the medical examiner or the defendant herself. In our example above, in a world where any amount of alcohol in the system is illegal, there would be no reason for a court to make a factual determination that a defendant had .08% blood alcohol level. A court that has found that a defendant is “impaired” may have had before it a defendant with .03% blood alcohol level or .15%. And by applying the new rule in this situation, where the evidence was not examined to answer the proper question, the defendant faces a significant risk that she stands convicted of “an act that the law does not make.criminal or faces a punishment that the law cannot impose upon h[er].” Schriro, 542 U.S. at 352, 124 S.Ct. 2519.

More importantly, given the district court’s language, we cannot say with any certainty that the district court made a finding that but for the fentanyl that Krieger supplied, Jennifer Curry' would not have died. In fact, the district court did not use the term “but for” anywhere in the order. The order is awash in confusion about what causation means in this context. This is not due to any fault on the part of the district court judge, who did a thorough job on a difficult case, but rather it is due to the lack of clarity about what type of causation the government would have to prove to demonstrate that the death of a particular victim resulted from a drug that had been supplied by the defendant. Before Burrage, no district court had any reason to know that it should be focusing on “but-for” causation when sentencing for “death resulting.” A perfect example of the murkiness of causation in this context can be seen in the following paragraph from the district court’s order at sentencing:

the statute imposes the minimum sentence of twenty years not when the defendant “causes” the death at issue, but when the death “results” from the distribution. Dr. Christopher Long testified at the sentencing hearing that the high levels of fentanyl found in Curry’s system were not necessarily indicative of the cause of death. He said:
For example, we may have a very high concentration of a particular drug, a fatal level. And then we say, “Well, he was hit by a train.” Well, of course, you know what killed him. It wasn’t the drug. It was the train.
However, for purposes of this statutory mandatory minimum, the Government need not prove that Krieger ‘caused’ Curry’s death, only that Curry’s death ‘resulted’ from Krieger’s action. Therefore, if the -victim in Dr. Long’s hypothetical had fallen asleep on the train track because of the fentanyl, we would say" the train “caused” her death, but her death “resulted” from the fentanyl.

Krieger, 2009 WL 112428, at *6-7 (emphasis ours). In fact, the district court goes so far as to say that “[t]he statute imposes on the Government no need to show that the defendant had any degree of mens rea. It imposes no requirement of foreseeability. It imposes no requirement of causation.” Id. at *7 (emphasis ours).

If, in fact, the court was applying a standard in which the government “need not prove that Krieger ‘caused’ Curry’s death, only that Curry’s death ‘resulted’ from Krieger’s action” (as it appears in the quoted language above), then it was not applying but-for causation ■ as defined in Burrage. Moreover, the court used this “death resulting” language throughout its opinion (all emphases ours):

• “Having weighed all of the evidence presented, the Court finds that the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to .Ms. Curry resulted in Ms. Curry’s death.” Krieger, 2009 WL 112428, at *4.

• “However, had the Court applied the reasonable doubt standard, the Government would not have met its burden of proof in establishing that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in the latter’s death.” Id.

. • “Therefore, the Court; upon a ¡finding that the drug distributed by Krieger resulted in the death of Jennifer Curry, is mandated by Congress to sentence Krieger to the statutory minimum' of twenty years.” Id. at *5.

• “But, had the Court the discretion to insist that the Government prove beyond a reasonable doubt that the distribution to which Krieger pled guilty, resulted. in Curry’s death before imposing the statutory mandatory minimum sentence, it would have exercised such discretion in this case.” Id. at *6.

• “Therefore, the Court, having found that the Government has proved by a preponderance of the evidencé thát the distribution of fentanyl to which Krieger pled guilty resulted in the death of Jennifer Curry, is mandated by statute under 21 U.S.C. § 841(b)(1)(C) to sentence Krieger to a term of imprisonment of twenty years.” Id. at *8.

On the other hand, the district court also occasionally used language more closely associated with but-for causation. The best support for the notion that the district court was looking at but-for causation comes from the following statement that the district court made while describing the testimony of Dr. Heidingsfelder: “[h]e testified that in his opinion, Curry’s death was caused by fentanyl toxicity. He further testified that, in his opinion, the other drugs found in Curry’s system did not cause her death, either taken alone dr in combination.” Id. at *3. The district court opinion also includes language hinting at but-for causation in the following:

[i]n addition, the Court finds that the evidence presented, including the testimonies of Drs. LeVaughn, Evans and Morris-Kukoski, and the lab reports from AIT and the FBI, support, by a preponderance of the evidence, Dr. Heidingsfelder’s conclusion that fentanyl toxicity was the cause of Ms. Curry’s death.

Id. at *4. But yet, despite having said this, the district court summarized its conclusion by saying, “[h]aving weighed all the evidence presented, the Court finds that the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” Id. (emphasis ours).

As we have emphasized, the confusion is not the fault of the district court, but rather a lack of clarity in the case law at the time about what type of causation was required. Before Burrqge, it was unclear what level of causation was necessary and courts were imprecise with the language they used in finding causation. In fact, after the district court sentenced Krieger, another panel of this court issued an opinion explaining how muddled the language of causation is in the cases applying this same “death resulting” statute. United States v. Hatfield, 591 F.3d 945, 947 (7th Cir. 2010) (explaining causation in 21 U.S.C. '§ 841(b)(1)(C)). As the court explained in Hatfield:

Causation is an important issue in many cases in a variety of fields of law and has been so for centuries. Yet it continues to confuse lawyers, in part because of a proliferation of unhelpful terminology (for which we judges must accept a good deal of the blame). In the space of three- and-a-half pages in the government’s brief, one finds the following causal terms: proximate cause, actual cause, direct cause, but-for causation, contributing causation, contributory causation, significant causal connection, sole cause, factor in the victims’ injuries, concurrent cause, meaningful role, possible cause, remote cause, and cause in fact. Black’s Law Dictionary (8th ed.2004) lists 26 terms in the entry for “cause.” The prosecutor was unable at oral argument satisfactorily to differentiate or explain the causal terms listed in his- brief, or the three causal, terms added to the instruction—“a factor that resulted in,” “primary cause,” and “played a part.”

Id. at 947-48. In fact, so confusing was the language of causation,- that although the parties in Hatfield agreed that the government had- to prove- but-for causation, the government’s lawyer at argument said that the words “played a part” in the jury instructions referred to “but-for” causation. Id. at 948. And -in Hatfield, the panel set forth several examples of how confusing the concept- of “but-for” causation can be:

suppose the ingestion of an illegal drug weakened the - victim’s health to the point where he later died of another condition that would not have killed him had he not ingested the drug. Maybe he was healthy until he ingested it, and after and because he ingested it his immune system failed and he died from an overdose of drugs, obtained from someone else, that would not have killed him but for his weakened condition. The government’s lawyer said that ingesting the first drug would not have been a but-for cause of. the death. But it would have been: had the victim not ingested it, he would not have died when he did.
Suppose a defendant sells an illegal drug to a person who, not wanting to be seen ingesting it, takes it into his bathroom, and while he is there the bathroom ceiling collapses and kills him. Had he not ingested the drug, he would not have been killed. But it would be strange to think that the seller of the drug was punishable . under 21 U.S.C. § 841(b)(1)(C)...

Id. The Hatfield panel described “but-for” causation as “an opportunistic concept [that] ... we attach to a but-for cause (the better term is ‘necessary condition,’ since most but-for causes aren’t considered causes at all) that we’re particularly interested in, often because we want to eliminate it,” that is, it is defined by the conduct we wish to deter. Id. Moreover, in Hatfield, we noted that just like attempts to define “beyond a reasonable doubt” for a jury, attempts to define the confusing term “but-for causation” for a jury “often make[ ] it less rather than more clear.” Id. at 949.

The lack of understanding about what level of cause was required to make a showing of “resulted in death” led to imprecise comments by courts and lawyers, including this very court. In sustaining Krieger’s sentence on direct appeal, we used the term “but for” in a sentence describing the district court’s findings, despite the fact that the district court had not used the term “but-for causation” anywhere in its opinion. Krieger, 628 F.3d at 871 (“The district court properly considered, therefore, whether Curry’s death would not have occurred but for the ingestion of the fentanyl.”) Yet throughout the remainder of the opinion, the panel on direct appeal spoke only of the lower court findings that Krieger “caused” Curry’s death or that death “resulted.” See id. at 861, 867, 869, 870 (“the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry.”); (“the court concluded that the government would not have been able to prove,. beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense. The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that ,‘the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.’ ”); (“Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) ‘if death results’—twenty years.”); (“the court found that Curry’s death resulted from the distribution of -fen-tanyl”); (“The district court was also correct that once it found, by a preponderance of the evidence, that death had resulted when Krieger distributed the fentanyl, the court was obliged to impose the mandatory minimum sentence of twenty years.”); (“the district court was correct in allowing the government to prove to the eourt at sentencing, by a preponderance of the evidence, that Curry’s death resulted from Krieger’s distribution of fentanyl.”); (“The district court took these failings into account, but nevertheless found that it was more likely than not that the fentanyl patch provided by Krieger earned Curry’s death.”).

Before Burrage, the district court had no reason to place “but-for causation” under a magnifying glass and see it as the linguistic key to a determination of criminal liability for death. Neither the court nor the parties had the benefit of Hatfield or Burrage at the time of sentencing and no reason to know that but-for causation was the minimum level of causation neces-' sary to find that Curry’s death resulted from the ingestion of the patch distributed by Krieger. Our own isolated use of the term but-for causation in our decision sustaining the district court’s sentence on direct appeal can have no significance where the district court made no such finding and the Supreme Court had yet to declare it the requirement. It is true, of course, that by the time we issued our opinion on direct appeal, our court had decided Hatfield, in which it began to unravel what is required to prove that “death resulted from” the use of the controlled substance as stated in 21 U.S.C. § 841(b)(1)(C). It was clear after Hatfield that the government could not include in its jury instructions a statement that the controlled substance distributed by the defendant has to have been “a factor that resulted in the death or serious bodily injury,” and that although it “need not be the primary cause of death or serious bodily injury” it “must at least have played a part in the death or in the serious bodily injury.” Hatfield, 591 F.3d at 947. Hatfield clarified that, at a minimum, the government had to prove but-for cause. Id. at 948. But the Hatfield opinion left unanswered many questions about but-for causation. In fact, the court was critical of the term “but-for” causation noting that “but-for cause is not always (in fact not often) a cause relevant to legal liability,” and, as we pointed out above, spoke of the confusion surrounding the term and the difficulties in pinning it down. Id. at 948.

Putting all of the pieces together: Bur-rage applies to Krieger’s case on collateral review, and therefore requires that the government show that the fentanyl patch, which Krieger provided to Jennifer Curry was the “but-for” cause of Curry’s death, that is, “‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” Burrage, 134 S.Ct. at 887-88 (citing University of Tex. Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503 (2013)).

In its supplemental filing, the government points to evidence from experts who believed that Curry had a lethal level of fentanyl in her system and therefore concluded that the cause of Curry’s death was fentanyl toxicity. In a world that did not require but-for causation, this evidence was sufficient to satisfy the “death resulting” language of the enhancement by a preponderance of the evidence, as the district court found. Krieger, 2009 WL 112428, at *4. Krieger, however, argues that law enforcement, medical examiners and the like, focused only on the fentanyl to the exclusion of the other drugs in Curry’s system which, in a landscape requiring but-for causation, makes a difference. As Krieger notes, “if before any testing or investigation there is a 50% chance a victim died from Drug A and a 50% chance the same person died from Drug B, can causation determination be made if only Drug A was tested?” (Krieger Supplemental Brief at 9).

The government argues that these factual findings—that fentanyl caused Curry’s death—are reviewed for clear- error and that this court, on direct appeal, has already upheld the district court’s factual findings. But this court, on direct appeal, upheld the district court’s factual findings that fentanyl caused Curry’s death. It did not uphold any factual finding that fenta-nyl was the “but-for” cause of Curry’s death. It could not have done so, just as the district court, at the time of sentencing, had no reason to know that it must make a finding of but-for causation, because it had neither the guidance of Hatfield nor Burrage. And even though we had some idea, by the time- of direct review, that, because of Hatfield, the standard in this circuit was turning to “but-for” causation, the Hatfield opinion merely reinforced the notion that the term “but for” was both ill-defined and oft misused. Hatfield, 591 F.3d at 948-49. It was not until Burrage that the Supreme Court mandated that no defendant could be liable under the penalty-enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless the use of the distributed substance was the but-for cause of death, a term it defined by stating “this requires proof that the harm would not have occurred in the absence of—that is, but for—the defendant’s conduct.” Burrage, 134 S.Ct. at 887, 892.

But even if this court had somehow upheld the factual findings that the government claims it did, the law of the case doctrine is “not hard and fast.” Kathrein v. City of Evanston, Ill., 752 F.3d 680, 685 (7th Cir. 2014). Instead, “a ruling made in an earlier phase of a litigation controls the later phases unless a good reason is shown to depart from it.” Tice v. Am. Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004). And one good reason to depart from it is when, as here, there is “a decision of the Supreme Court after the first review that is inconsistent with, the decision on that review.” Kathrein, 752 F.3d at 685 (citing Chi. & N.W. Transp. Co. v. United States, 574 F.2d 926, 930 (7th Cir. 1978)). Burrage is, of course, just that case.

We therefore vacate Krieger’s sentence and remand the case to the district court for de novo resentencing. Because Krieger’s sentence is vacated, the district court will be resentencing Krieger on a clean slate. See Pepper v. United States, 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011); United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.1992) (vacation of a sentence results in a “clean slate” and allows the district court to start from scratch); United States v. Barnes, 948 F.2d 325, 330 (7th Cir. 1991) (same). As the district court noted in its initial opinion on sentencing, it can consider the death of Jennifer Curry, using a preponderance of the evidence standard, as recommended under United States Sentencing Guideline § 2D1.1, which advises that,a judge apply a higher base level where the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance. U.S.S.G. § 2D1.1. Implementation of the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(C), would require that a jury find, beyond a reasonable doubt, that the fentanyl in the patch provided by Krieger was the but-for cause of Curry’s death, and the time for such a determination has passed. Alleyne, 133 S.Ct. at 2155; Burrage, 134 S.Ct. at 892.

The decision of the district court is VACATED and the case is REMANDED for resentencing.

      . It is also trae that a number of district courts have issued opinions holding that Bur-rage does not apply retroactively, although none with any significant .analysis. Stewart v. United States, 89 F.Supp.3d 993, 996 (E.D. Wis. 2015) (finding Burrage not retroactive merely by citing other cases finding same); Alvarez v. Hastings, No. CV214-070, 2014 WL 5364189, at *1 (S.D. Ga. Oct. 21, 2014) (adopting magistrate judge’s report and recommendation found at 2014 WL 4385703 at *1, explaining that petitioner was not allowed to file second or successive § 2255 motion because the Supreme Court "did not express- ' ly hold that Burrage is retroactive on collateral review.”), appeal dismissed (July 13, 2015); United States v. Bourlier. No. 3:14cv609, 2014 WL 6750674, at *2 (N.D, Fla. December 1, 2014) (stating that the Supreme Court has not expressly held that its holding in Burrage is retroactively applicable to cases on collateral review); De La Cruz v. Quintana, No, 14-28-KKC, 2014 WL 1883707, at *6 (E.D. Ky. May 1, 2014) ("The Court in Burrage did not indicate whether Burrage applies retroactively, and to date, the Court is unaware of any authority that would make it retroactive” but deeming it unnecessary to decide); Taylor v. Cross, No. 14-CV-304-DRH, 2014 WL 1256371, at *3 (S.D.Ill. Mar. 26, 2014); Powell v. United States, No. 3:09-CV-2141, 2014 WL 5092762, at *2 (D. Conn. Oct. 10, 2014) (finding that Burrage does not apply retroactively because it is only about the procedural issues of who decides a given question and under what standard); United States v. Grady, No. 5:10CR0002, 2015 WL 4773236, at *4, (W.D. Va. Aug. 12, 2015) (finding Burrage is not retroactive "because the Supreme Court has not declared it to be retroactively applicable, and no other court has such authority.”).


author: BAUER, Circuit Judge.

text:
    Miguel PEREZ-FUENTES, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 14-2504
    United States Court of Appeals, Seventh Circuit.
    Argued September 20, 2016
    Decided November 22, 2016

      Justin Giles Randolph, Attorney, Law Office of Justin G. Randolph, Chicago, IL, for Petitioner.
    Juria L. Jones, OIL, Regan Hildebrand, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
   BAUER, Circuit Judge.

Petitioner Miguel Perez-Fuentes, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ decision affirming the denial of his application for cancellation of removal. See 8 U.S.C. § 1229b(b). The Board affirmed the denial based on the Immigration Judge’s alternate determination that Perez-Fuentes did not establish the requisite hardship for cancellation. See 8 U.S.C. § 1229b(b)(l)(D). Perez-Fuentes challenges several aspects of his hearing. He contends that the IJ improperly excluded evidence and failed to develop the record as required by 8 U.S.C. § 1229a(b)(l) and 8 C.F.R. § 1240.32(b). We dismiss Perez-Fuentes’ petition for review, in part for lack of jurisdiction, and deny the remainder of the petition.

I. BACKGROUND

Perez-Fuentes entered the United States from Mexico without inspection; the date of his entry is not clear. Perez-Fuentes came to the attention of the Department of Homeland Security after several arrests. On July 19, 2011, DHS served Perez-Fuentes with a Notice to Appear, charging that he was removable for being present in the United States without inspection under 8 U.S.C. § 1182(a)(6)(A)©.

On September 13, 2011, Perez-Fuentes proceeded pro se, but with the aid of an interpreter, at the first hearing. He testified that he is a parent of a daughter, Esmeralda, who is a United States citizen. Further, he testified that he first entered the United States in 1995 for a period of time, and returned to the United States after a departure sometime in 1998. After he told the IJ about an arrest, he was instructed to provide a list of his arrests and the dispositions, and the court records. The IJ provided Perez-Fuentes with an application for cancellation of removal and informed him of the requirements.

On November 22, 2011, Perez-Fuentes conceded removability and filed an application for cancellation of removal. See 8 U.S.C. § 1229b(b). Cancellation of removal is a discretionary form of relief available to certain nonpermanent residents. To qualify, an applicant must meet four statutory criteria: he must establish continuous physical presence for ten years immediately preceding the date of his application; have “good moral character” during that period; show he was not convicted of certain offenses; and, prove that his removal would “result in exceptional and extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(l). The applicant has the burden of establishing each of these criteria. Adame v. Holder, 762 F.3d 667, 669 (7th Cir. 2014). Finally, even if the applicant satisfies these conditions, the IJ retains discretion to grant or deny the application. 8 U.S.C. § 1229b(b)(l); see also Adame, 762 F.3d at 670-71 (“[T]he IJ ‘may cancel removal’; it does not say that the judge must do so.”).

After four continuances over an 18-month period, the IJ held the final hearing on the merits of Perez-Fuentes’ application on January 28, 2018. Perez-Fuentes testified in support of his application. Among other questions, the IJ asked Perez-Fuentes, “Okay, well, what hardships do you feel your daughter would face if, if you had to leave the United States?” Perez-Fuentes testified that he financially supported his daughter and she would need money for clothes and food. He also testified that his daughter was in good health. The IJ asked Perez-Fuentes about whether his girlfriend, Raquel Ochoa—an undocumented non-citizen and the mother of Perez-Fuentes’ daughter—would move to Mexico with him and about her work history. After several other questions regarding his daughter and Ochoa, the IJ inquired further: “Well, do you think your child would face any hardships other than financial hardships if you had to leave?” Perez-Fuentes answered, “Well, yes, because she’s still very little, but even being little she’s very close to me.”

Additionally, Perez-Fuentes had two witnesses testify and provided various documents, including tax returns and seven untranslated written statements. Perez-Fuentes called Blanca Ruiz to testify as .a character witness on his behalf. Ruiz is the wife of Miguel Ruiz, a former employer of Perez-Fuentes.

He also called Ochoa to testify on his behalf. The IJ asked Ochoa several questions, including questions about the number of children she had with Perez-Fuentes, the age of their daughter, whether their daughter was in good health, and whether she would stay with him if he was required to depart.

After Ruiz and Ochoa’s testimony, the IJ asked Perez-Fuentes whether he had any other witnesses. Perez-Fuentes said that he did, “but not anybody that ... kn[ew] [him] as well as [Ruiz and Ochoa].”

At the conclusion of the hearing, the IJ denied Perez-Fuentes’ application, and ordered him removed to Mexico. The IJ found that Perez-Fuentes “failed to meet any of the requirements necessary for cancellation of removal,” and that he did not merit cancellation of removal as a matter of discretion. As to the physical presence requirement, the IJ noted that Perez-Fuentes testified that he arrived in 1997, but that at a previous hearing he stated that he returned to Mexico in 1998. The IJ concluded that Perez-Fuentes failed to present documentary evidence to support his claim that he worked continuously in the United States.

The IJ also found that Perez-Fuentes did not establish the good moral character requirement. The IJ noted several arrests, including a recent arrest for domestic battery; his third arrest for that offense. The IJ found that Perez-Fuentes and Ochoa’s conflicting testimony surrounding the recent offense suggested he was not telling the truth. :The IJ believed that Perez-Fuentes underreported his income for tax purposes, especially in light of his inability to explain how he recently purchased a home for $100,000 in cash, while only reporting a net income of $7,000.

In addition, the IJ found that, even assuming that Perez-Fuentes had met the continuous physical presence and good moral character requirements, he had failed to prove that his removal would result in “exceptional and extremely unusual hardship” to his daughter, Esmeralda. The IJ found that Perez-Fuentes presented “virtually no evidence” showing what hardship his daughter would face other than “separation hardship and financial hardship” if Perez-Fuentes was required to depart.

On June 9, 2014, the Board affirmed the order of removal and denial of cancellation of removal. The Board concluded that there were no due process violations, that the IJ fully developed the record, and that Perez-Fuentes had a full opportunity to present his case. The Board affirmed the IJ’s alternate determination that Perez-Fuentes had not established that his removal to Mexico would result in “exceptional and extremely unusual hardship” to his daughter. See 8 U.S.C. § 1229b(b)(l)(D). The Board noted that Perez-Fuentes did not assert that his daughter has any serious health issues or special needs in school, and that she lives with Ochoa. The Board also noted that Ochoa was in good health and that Perez-Fuentes was healthy and that there is no reason why he could not work in Mexico and send money back to his daughter and Ochoa. Lastly, the Board found that the IJ considered all of the evidence individually and cumulatively, and affirmed'that, in the aggregate, these hardships do not reach the high threshold necessary to demonstrate eligibility for cancellation of removal. Accordingly, the Board dismissed the appeal. Perez-Fuentes filed a timely petition for review in this Court. ■

II. DISCUSSION

Generally, we lack jurisdiction to review denials of discretionary relief in immigration proceedings, including cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B); Adame, 762 F.3d at 670. But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law , raised in a petition for review. Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012).

Perez-Fuentes claims that the IJ failed to follow statutory and regulatory requirements while conducting Perez-Fuentes’ removal hearing. More specifically, he contends that he was prevented from receiving a full and fair hearing because the “IJ arbitrarily rejected evidence, failed to use proper legal standards, and failed to fully develop the record as required by 8 U.S.C. § 1229a(b)(l). and 8 C.F.R. § 1240.32(b).” Since “[t]he procedural sufficiency of an immigration hearing is a legal question,” Boyanivskyy v. Gonzales, 450 F.3d 286, 291 (7th Cir. 2006), some of Perez-Fuentes’ challenges are reviewable.

A. Developing the Record

Perez-Fuentes contends that he was denied a full and fair hearing because the IJ breached his duty to develop the record by asking Perez-Fuentes and Ochoa only a few questions-about the potential hardship his daughter, Esmeralda, would face. IJs are authorized to “interrogate, examine, and cross-examine the alien and any witnesses” during removal proceedings. 8 U.S.C. § 1229a(b)(l). “The immigration judge shall receive and adduce material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.” 8 C.F.R. § 1240.32(b).

Here, the record shows that the IJ elicited testimony from Perez-Fuentes and Ochoa concerning the potential hardship Esmeralda would face. For example, the IJ asked, “Okay, well, what hardships do you feel your daughter would face if, if you had to leave the United States?” In response, Perez-Fuentes testified that his daughter relies on him to provide her food and clothes. After several related follow-up questions, the IJ asked Perez-Fuentes a question intended to elicit testimony concerning other potential hardships: “Well, do you think your child would face any hardships other than financial hardships if you had to leave?” Perez-Fuentes answered, “Well, yes, because she’s still very little, but even being little she’s very close to me.”

Based on the record, Perez-Fuentes cannot contend that the IJ failed to develop the record by not asking more questions. His. answers essentially conveyed to the IJ that the potential hardship Esmeralda would face is not “substantially different from, or beyond, that which'would be normally expected from the deportation of an alien with close family members in the United States.” Cruz-Moyaho v. Holder, 703 F.3d 991, 995 (7th Cir. 2012) (quoting In re Monreal, 23 I. & N. Dec. 56, 65 (BIA 2001)) (alterations omitted).

Perez-Fuentes has not shown that he was prejudiced. Although Perez-Fuentes lists questions that the IJ could have asked, he has not provided us with answers to those questions or any other concrete information that might have affected the outcome of the proceeding. See El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir, 2012) (“Applicant’s failure to .allege excluded testimony that would potentially affect outcome of hearing was fatal to due process claim”). Further, the IJ concluded that had Perez-Fuentes established all of the requirements for cancellation of removal, the IJ could have denied the application as a matter of discretion.

We do not believe that the record before us supports a conclusion that the IJ violated any statute or regulation in regards to the manner in which the IJ elicited testimony concerning the potential hardships Esmeralda would face.

B. Exclusion of Evidence

Perez-Fuentes argues that the IJ improperly excluded evidence by: (1) failing to call two of Perez-Fuentes’ witnesses; and, (2) ignoring seven untranslated statements. Perez-Fuentes contends that he was prejudiced because the excluded evidence had the potential to affect the outcome of the proceeding. “An immigration judge has the authority to narrow the focus of a hearing and exclude irrelevant evidence, but he may not ‘bar complete chunks of oral testimony that would support the applicant’s claim.’ ” Delgado, 674 F.3d at 768 (quoting Barradas v. Holder, 582 F.3d 754, 766 (7th Cir. 2009)). If the excluded evidence is central to the petitioner’s case,in such a way that it would change the outcome of the hearing, then this Court must find that the petitioner did not have a meaningful opportunity to be heard. Id.

1. Two Witnesses

We may review a final order of removal only if the non-citizen “has exhausted all administrative remedies available to the [non-citizen] as of right.” 8 U.S.C. § 1252(d)(1). Some failure to exhaust claims may be “overlooked,” but when a non-citizen’s claim is “based on a procedural failing that the Board could have remedied, thereby obviating the con-stithtional claim, then the failure to exhaust will not be excused.” Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). “The duty to exhaust includes the obligation to first present to the [Board] any argument' against the removal order as to which the Board is' empowered to grant the alien meaningful relief.” Id.

Here, Perez-Fuentes failed to exhaust his administrative remedies as to the argument that the IJ improperly excluded two witnesses. We acknowledge that Perez-Fuentes proceeded pro se before the IJ, but he was represented by counsel on his appeal to the Board. Perez-Fuentes’ brief to the Board neither mentions the two witnesses, nor the exchange between the IJ and Perez-Fuentes in regards to whether he had any other witnesses. Perez-Fuentes failed to raise this specific argument before the Board, and therefore he did not exhaust his administrative remedies. Thus, he cannot raise it now for the first time. 8 U.S.C. § 1252; see also Muratoski v. Holder, 622 F.3d 824, 831 (7th Cir. 2010).

2. Seven Untranslated Written Statements

“A claim' that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008). Perez-Fuentes contends that the IJ ignored seven untranslated written statements because the letters were in Spanish and the IJ did not instruct the interpreter to read the letters into the record. Citing to Niam v. Ashcroft, 354 F.3d 652, 658-61 (7th Cir. 2004), Perez-Fuentes argues that the absence of any reference to the untranslated letters by either the IJ or the Board leaves a “yawning void.”

In the oral decision, the IJ stated: “After careful consideration of the record in its entirety, I find the respondent has faded to meet any of the requirements necessary for cancellation of removal.” Perez-Fuentes does not cite to any evidence in the record.that indicates the IJ, in fact, ignored these letters; he indicates that the IJ only mentioned that the letters .were untranslated. In addition, Perez-Fuentes argues that since the IJ did not reference the letters in his decision, it is evidence that the IJ did not consider the letters. However, the IJ is not required to mention each piece of evidence in its decision; the IJ need only consider the evidence. See Boadi v. Holder, 706 F.3d 854, 859 (7th Cir. 2013). But, under these circumstances, given the need for a translator and the proximity in time between the IJ’s receipt of the letters and the IJ’s oral decision, it is unlikely that the IJ could have considered the letters before rendering its decision.

Nevertheless, even if the IJ did not consider the seven untranslated written statements, Perez-Fuentes would have to establish that the ignored letters were central to his claims, and that the letters “may have had the potential to change the outcome of the hearing.” Delgado, 674 F.3d at 768 (citing Galicia v. Gonzales, 422 F.3d 529, 540 (7th Cir. 2005)). Perezr-Fuentes cites to specific details in the untranslated letters that are relevant to the continuous physical presence and good moral character requirements but does not cite to any specific details in the letters as having any information regarding the “exceptional and extremely unusual hardship” requirement. In fact, he does not argue that. the letters contain any information regarding the hardship requirement. While the letters may have been central to some of his claims, they do not have the potential to “change the outcome of the hearing.” As seen above, Perez-Fuentes’ only challenge related to the hardship requirement failed.

C. Remaining Challenges

There is no need to further consider Perez-Fuentes’ remaining challenges concerning the good moral character and continuous physical presence requirements. Perez-Fuentes failed to establish the requisite hardship requirement for cancellation of removal. See Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016) (citation omitted).

III. CONCLUSION

For the foregoing reasons, we DISMISS Perez-Fuentes’ petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.

      . Perez-Fuentes retained counsel on his appeal to the Board, as well as his appeal to this Court.

      . Even if Perez-Fuentes’ argument was reviewable, it lacks merit. At the hearing, the IJ asked Perez-Fuentes whether he had any other witnesses. In response, Perez-Fuentes indicated that he did, "but not anybody that ... kn[ew] [him] as well as [Ruiz and Ochoa].” In light of this response, Perez-Fuentes’ claim that the IJ excluded the two witnesses is inaccurately characterized. The IJ did not refuse to hear additional testimony. Instead, the IJ gave Perez-Fuentes a reasonable opportunity to have the two witnesses testify.