a fourth case this morning as tucker versus united states establishes causation of death which simply means offensive conviction generally implies a conviction but if you weren't sure he could have checked because the guidelines actually define the phrase for him in one b one point two where the guideline offensive conviction means offense conduct charged in the indictment of which the defendant was convicted but mr tucker was not convicted of causing a death well that was py stipulation of the parties to withhold that issue from the jury so as to avoid prejudice why isn't there just a raise strategic judgment on the part of defense counsel so your honor the stipulation of the parties was about eight forty one b it was not about to do one point well it's the same issue they stipulated to keep the issue of causing death from the jury to avoid tainting their is or i respectfully disagree if you go and you look at that the transcript where the government is describing to the district court what the parties have decided the government talks about the causing death aspect and he says it's included in the indictment that of course is referring to forty one b because something guidelines are not in the indictment he talks about the mandatory minimum that of course is talking about you're going through the legal consequences i'm talking about the factual issue that the jury did not decide because it was not submitted to the jury by stipulation of the parties whether that has legal consequences  or the guidelines this is sort of beside the point it was a strategic stipulation to keep that fact from the jury make sure the jury was not deciding it because it would taint the jurors and let the judge decide it i think that the stipulation though was about the factual issue with respect to eight forty one b it isn't the case that any stipulation about that factual issue with respect to forty one b automatically implies that the sentencing guideline is going to be interpreted differently than it's plain language is and we know that from lawlor where there actually was the same thing in agreement that we're going to deal with this at sentencing but that didn't change the meaning of offensive can because the guilty plea case yes yes but in the guilty plea there was actually an agreement that best correct that the parties that the government was going to say that the minimum mandatory minimum apply and that to the one point one applied and his lawyer was going to say the opposite and similarly in redmond the parties actually  agreed that they were going to deal that for the mandatory minimum purposes the judge could make that judgment but there was no deal about to do one put money to there's no implied deal about two to one point one and two i think it's easy to think about this and we can look like the big deal about to do one point one and two with had to be a stipulation of law because this wasn't a stipulation of fact no one was agreeing that there was cause ation of death it would have to be a stipulation of law that whatever was found by the judge would be considered to be part of the offense of conviction and if you look at the text of the transcript what the government's lawyer said to the district court was actually the exact opposite of that the price he said the wrists not an element yes he said it's not an element it's not a part of the offense conviction he said it's a sentencing factor right he wasn't talking about you one point one and two and this isn't the case where you know mr tucker's counsel was trying to was presenting it to the court and trying to be shady with his language with this was the government's discussion of what the agreement was how can we ask a question about something that's  i'm sympathetic to your argument but and pressler which is the third circuit decision on a lot of points so the court has a footnote saying that failure press the point wasn't a plane air and thinking about whether it's conviction point and the district court forfeited it and it wasn't a plain error so the third circuit said it was forfeited then it makes it harder to say no and thinking about it that way will ash if it wasn't a plane air yet it was so it shouldn't so obvious to him that it was deficient performance for him not to press the point so i think that what they get through is clean air isn't just about obvious obviousness in most circuits it also requires that the case law that warns you that this is an issue is from within the circuit whereas that isn't the rule in the ineffective assistance of context of a council context where he was in fact counsel was required to learn the law and that didn't mean he could just restrict his case law search to what the seventh circuit said he was required to learn in general what the case law said and surely if i if you misinterpret the plain text of a statute that's that's glaringly obvious and there's no case law on it because it's so obvious it just hasn't come up so it could be a plain air right i think that's right and i think you know to that extent i would disagree with the third circuit because i do think that the actual text of the guideline here is plain enough but you don't need to get there because there's all this case law as well so even if the text of the guideline wasn't clean enough to get you to play in error once you had given the authority from the third fifth and sixth circuits and from three district court decisions that had addressed it you still get ineffective assistance of counsel because there are just different standards so what mr tucker's counsel should have done is look at the guidelines look at the definition that was within the guidelines and then look at the third fifth and sixth circuits in the fact that he didn't do so really prejudiced mr tucker and so counsel should have asked the court to not apply that section the guidelines having stipulated to keep the issue from the jury in the first place well again i think issue is a broad statement and that wasn't what the stipulation was the stipulation was the causing death aspect of the investigation it's included in the indictment again that's talking about the forty one  to those of a legal consequences i'm talking about well i think issue saying you know we take it off the table as far as what's going to be submitted to the jury so that the offense of conviction is no longer a resulting in sentencing i disagree with the description of what was happening in the agreement which was we agree that this fact for all purposes we are not going to object if you find the fact that any results that you want those will occur instead what the actual dream it was which is in the transcript is we agree that this fact can be found with that for the purposes of eight forty one b eighty eight they would have had to actually make a stipulation about what the meaning of the guideline was in order to stipulate it to be one point one eight you would have a stipulation of law which in general is pretty  favored courts disregard them all the time and have the have the right to do so if that had occurred here i think it might help is this court has said that we address stipulations in the same way that we address contracts and if we look at the stipulation here and we say was there any mention of to do one point one and two would you construe this as a contract to be an agreement that to do one point one in a two would be interpreted such that offensive conviction includes something which the party was not convicted no sixth amendment to raise this issue and my reaction as a presiding judge was that you get this way you can't have your cake and eat it too i would be my reaction i can honor you took this off the table for purposes of what the charge was and it's too late to argue the point now so so first your honor i don't think that's how the district court judge understood it because after the government spoke the district it actually responded and said so what you're asking me to do is this out of the indictment this report didn't then say and also for the purpose of the senate saying i'm going to construe offense conviction no i'm talking after the fact that what you know what people understood at the same and it's presented to the court before trial as if it forty one issue yes but the issue was resulting in death keep it from the jury at all costs don't let the jury decide it i think that's what they wanted that's what he wanted and for the purposes of eight forty one but there isn't any agreement about to do one point one and two and i don't think that the district court judge would have held it against him that's not you know in redmond that's not what happens the court said you have an agreement about eight forty one b but that doesn't mean that we can target it to the one point one a to differently and this court so because that was reasonable there was no one rain that fell he could not very well then have gone to the sentencing judge at times thank you and said yes judge i know that i asked you to make this determination i asked you take this away from the jury but you can't there's no counsel behaved recently if it's right that the agreement was only for section forty one purposes and what mr tucker wanted was for the jury to make the determination with respect that for purposes of his guidelines he would have received no benefit whatsoever from his bargain with respect to section eight forty one if the jury had been asked to make that determination you can reach some sort of solomonic compromise here where they make whether it's taken from them for sentencing purposes but something guidelines purposes but not for the statute incidentally it appears that mr tucker acknowledges he has no quibble with is mandatory minimum being based on the judge's findings which means that the bottom of the guidelines range would go from two hundred ten months to instead of leaving it to the jury if there was any error it was invited to an amount of submitting an infirm verdict form or jury instruction to a court and then later complaining that there was an infirmity with the verdict form or the jury instruction that that kind of claim can  two no mention of death resulting times he does make reference to ineffective assistance at the sentencing phase the courts have been clear that neither trial nor sentencing is a single occurrence for purposes relation back doctrine and it can't be right that he is incorporated by reference every claim he made and every one of his twenty five or so pro se motions to trial motions by the way he filed pro se while represented so not only is he not entitled as he did with his original section were ineffective assistance not finally as to prejudice this court was clear a lot of that quote nothing we say today prevents a sentence in court when determining the defendant's ultimate sentence from considering the fact that   resulted under section thirty five fifty three and that is exactly what you dreamed it did here we know that because he said he said when a doctor and governments forty years on it's a recommendation that it was that he was basing the sentence profoundly understated the pathology of the defendant's criminal history and so he said dr deserved effectively a life sentence which is what he imposed for all those reasons in the government's view tucker some should not be disturbed  the incorporation by reference of five thirty seven of the docket five thirty seven which was in his in his original petition was not a general incorporation of everything in the record in every motion he'd ever written it was incorporation of one specific motion that talked about the ways in which yes thank you chutzpah our for doing my job and we thank you for your