In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2760

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAMON RUCKER,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Western Division.

No. 13 CR 50005 — Frederick J. Kapala, Judge.

ARGUED APRIL 3, 2014 — DECIDED AUGUST 19, 2014

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. After Damon Rucker physically

attacked a co-defendant who had testified against him at his

sentencing on a narcotics conviction, Rucker was charged with

and convicted of witness retaliation, in violation of 18 U.S.C.

§ 1513(b). The district court ordered him to serve a prison term

of twenty years (the statutory maximum), consecutive to the

term imposed on his narcotics conviction. Rucker appeals,
2 No. 13-2760

contending that the evidence was not sufficient to support his

conviction, that his sentence is substantively unreasonable, and

that he was deprived of the effective assistance of trial counsel.

Finding no merit in any of these arguments, we affirm Rucker’s

conviction and sentence.

I.

Rucker purchased two kilograms of cocaine from Celestino

Alvarez-Montejano (“Alvarez”) for $64,000 in cash on October

8, 2011. Six weeks later, a grand jury charged Rucker, Alvarez,

and three others with conspiracy to distribute a controlled

substance and other narcotics offenses. Rucker chose to plead

guilty to a charge that he had attempted to possess, with the

intent to distribute, two kilograms of cocaine. 

Rucker initially disputed the additional quantity of narcotics that should be attributed to him as relevant conduct and

which would increase his base offense level. See U.S.S.G.

§§ 1B1.3, 2D1.1(c). The government averred that, in the five

years prior to the October 2011 sale, Rucker had been purchasing kilogram-quantities of cocaine from Alvarez as often as six

to eight times per year; Rucker would then “rock” the powder

cocaine by converting it to crack cocaine. The government’s

position was that an additional fifteen kilograms of cocaine

should be attributed to Rucker as relevant conduct, based on

a conservative assumption that he had purchased one to three

kilograms of cocaine from Alvarez three to four times yearly.

See United States v. Rucker, No. 11 CR 50052-5, R. 83 at 3 ¶ 7.

At a sentencing hearing conducted on November 8, 2012,

the government presented the testimony of Alvarez in support

of its position as to relevant conduct. Alvarez had also pleaded
No. 13-2760 3

guilty (to the conspiracy charge along with a charge that he

had reentered the country illegally following deportation) and

had agreed to cooperate with the government. Alvarez

recounted his past narcotics transactions with Rucker, which

included sales of both marijuana and cocaine; by Alvarez’s

estimate, Rucker had been purchasing two or three kilograms

of cocaine from him every two to three months beginning in

2007 or 2008. Rucker was present in court for this testimony;

indeed, Alvarez identified him from the witness stand. After a

thorough cross-examinationofAlvarez, Rucker’s lawyer asked

for a continuance so that he could look further into the veracity

of Alvarez’s testimony, unless the court was prepared to say

that it would not consider his testimony in assessing relevant

conduct. The court indicated that it was not prepared to

disregard Alvarez’s testimony; it therefore continued the

hearing until December 12, 2012. 

At the continued hearing, the parties presented a stipulation in which they agreed that an additional three and one-half

to five kilograms of cocaine should be attributed to Rucker as

relevant conduct. That quantity resulted in a two-level increase

to Rucker’s base offense level, and in turn boosted the advisory

sentencing range from a prison term of 63 to 78 months to a

term of 78 to 97 months. Defense counsel characterized the

agreed-upon drug quantity as a “compromise,” and urged the 

courtto consider the possibility that Alvarez had been less than

truthful in his testimony and that Rucker may in fact have

purchased substantially less cocaine from him than Alvarez

had said. United States v. Rucker, No. 11 CR 50052-5, R. 154 at

6-7. In its sentencing remarks, the district court noted the

apparent inconsistency betweenRucker’s substantial history of
4 No. 13-2760

drug-dealing (among other offenses) on the one hand and his

positive attributes on the other (the court had received a

number of glowing letters from family, friends, and clergy). 

I have a hard time reconciling these two people. You

can be a wonderful person who does noble acts, and

you can also be a monster. Who is the real Damon

Rucker[?] I don’t know.

Id. at 16. For his part, Rucker assured the court that his narcotics offense was “out of character” and that he would “take the

time to get everything in order in my life and come back home

and be a productive citizen.” Id. at 11. The district court

ordered Rucker to serve a within-Guidelines prison term of 87

months.

On December 20, 2012, eight days after he was sentenced,

Rucker encountered Alvarez in a holding cell in the Ogle

County jail where inmates were being assembled and prepared

for transport to other locations. Rucker was present in the cell 1

with other prisoners when Alvarez was brought into the cell

already secured for transport in hand and leg shackles. Unlike

Alvarez, Rucker had not yet been placed in restraints. According to Alvarez, when he first entered the cell, he did not notice

Rucker (who was at the far end of the cell) and instead began

chatting with another inmate that he knew. Alvarez first

became aware of Rucker’s presence when Rucker remarked,

The Ogle County jail in Oregon, Illinois (roughly 100 miles west of 1

Chicago) was one of a number of county jails in or near the Chicago

metropolitan area that had contracted with the United States Marshals

Service to house federal detainees while criminal proceedings involving

those detainees were pending in the district court in Chicago.
No. 13-2760 5

“There’s the trick” or “That’s the trick right there.” R. 83 at 186,

199. Alvarez understood the comment to be a reference to the

fact that he had testified against Rucker. Two other inmates in

the cell would later testify that they heard Rucker make a

remark that likewise referred to Alvarez’s status as a cooperating witness, although they recalled Rucker using different

language. According to Tony Walton, Rucker had declared,

“You like to get on the stand on people.” R. 84 at 45. And

according to William “Joe” Farrell, Rucker had stated, “You’re

going to have to show your paperwork wherever you go.”

R. 84 at 78. Alvarez recalled uttering a brief retort to Rucker

along the lines of, “[W]hy don’t you say the full story?” R. 83

at 187.

Apart from the words Rucker uttered, what he did next is

undisputed and, in fact, was captured on video (albeit without

sound) by a security camera. Rucker waited for another

prisoner to be removed from the cell for shackling and for the

departing guards to close the outer as well as the inner door at

the entry to the cell. As soon as the outer door was closed,

Rucker walked across the room to Alvarez (whom he outweighed by almost eighty pounds), put his hand on Alvarez’s

shoulder, moved him off the ledge where he was standing to

a nearby wall, and then slammed Alvarez’s head against the

concrete wall. To Walton, it “[s]ounded like a baseball hitting

a bat[.]” R. 84 at 46. Alvarez immediately collapsed to the floor

and began to convulse; blood ran from his head. Rucker

returned to the other side of the cell and stood watching

Alvarez. After twenty seconds or so, Rucker walked to the cell

door and informed the guard that Alvarez had slipped and

fallen and was having a seizure. Guards cleared the cell while
6 No. 13-2760

emergency medical personnel attended to Alvarez, who was

still shaking. Walton testified that Rucker subsequently

remarked to the other prisoners, “He shouldn’t have snitched

on me. He shouldn’t have told on me. That’s what happens.

Whatever happens, happens.” R. 84 at 48. Farrell recalled

Rucker saying, ”He shouldn’t have done it.” R. 84 at 83.

Alvarez was transported by ambulance to a local hospital,

where he underwent a CT scan and had a small laceration on

his head cleaned and stapled; he was returned to the jail within

a few hours. Alvarez testified that he still experiences daily

neck pain as a result of the injury.

Rucker was subsequently charged with witness retaliation

in violation of section 1513(b), and the case went to trial. The

government presented the testimony of Alvarez, Walton, and

Farrell, among others. And, of course, the video recording of

the incident was played for the jury. The defense did not

present any witnesses, but argued that the government’s

evidence did not show that Rucker attacked Alvarez with the

intent to retaliate against him for his testimony at Rucker’s

sentencing. The jury found Rucker guilty as charged.

The Sentencing Guidelines advised a sentence in the range

of 210 to 262 months, which was capped at 240 months by the

statutory maximum. After considering the sentencing factors

set forth in 18 U.S.C. § 3553(a), the district court opted to

impose a sentence at the statutory maximum. The court

described Rucker’s retaliatory attack on Alvarez as “cold,

calculated, and deliberate,” R. 85 at 41, and emphasized that it

undermined the safety and security of the jail as well as the

integrity of the judicial process. A substantial sentence was

therefore warranted, in the court’s view, in order to deter
No. 13-2760 7

Rucker and others from committing similar acts. The court also

noted that just eight days prior to the attack, Rucker had

assured the court that his narcotics offense was out of character

and that he was making an effort to get his life in order and to

become a productive citizen. In light of the subsequent attack

on Alvarez, the court found these assurances to be “insincere

and deceitful.” R. 85 at 44. In short, Rucker was “a menace”

from whom the public needed protection. R. 85 at 43–44. The

court thus concluded that he should not only be sentenced to

the maximum term of 240 months, but that he should serve

that sentence consecutively to the term imposed on his

narcotics conviction. 

II.

As we noted at the outset, Rucker pursues three issues in

this appeal. He first challenges the sufficiency of the evidence

underlying his conviction,primarily attacking the credibility of

the three witnesses to the attack on Alvarez. He moves on to

contest the reasonableness of the sentence, including the

district court’s order that he serve it consecutively to his

narcotics sentence. Finally, Rucker contends that his trial

counsel was ineffective, both in stipulating that Alvarez’s

testimony contributed to an increase in his narcotics sentence

and in failing to move for a judgment of acquittal at the close

of evidence.

A. Sufficiency of the Evidence

Rucker’s contention that the evidence is insufficient to

support the jury’s verdict focuses, as his defense at trial did, on

the element of intent. To prove Rucker guilty of the section

1513(b) offense, the government was obliged to show not only
8 No. 13-2760

that Rucker caused bodily injury to Alvarez, but that he did so

with the intent to retaliate against Alvarez for the latter’s

testimony against Rucker. United States v. Bolen, 45 F.3d 140,

142 (7th Cir. 1995). Rucker contends that there is inadequate

evidence that he harbored such an intent when he injured

Alvarez. He notes that the encounter between them was

fortuitous and occurred without forewarning: the Marshals

Service had requested that Alvarez be separated from Rucker,

and it is undisputed that the two never should have been

placed in the cell together. Rucker also maintains, as he did

below, that he harmed Alvarez in the midst of an argument,

not with an intent to punish him for his testimony.

Typically, we will affirm a conviction against a challenge to

the sufficiency of the underlying evidence so long as that

evidence, construed favorably to the government, would

permit a rational jury to find that each element of the offense

was proven beyond a reasonable doubt. E.g., United States v.

Whiteagle, No. 12-3554, — F.3d —, 2014 WL 3562716, at *14 (7th

Cir. Jul. 21, 2014). In this case, however, there was no defense

motion for a judgment of acquittal made at the close of

evidence, so our review is solely for a miscarriage of justice.

E.g., United States v. Natale, 719 F.3d 719, 743 (7th Cir. 2013),

cert. denied, 134 S. Ct. 1875 (2014). “This ‘most demanding

standard of appellate review’ permits reversal only if ‘the

record is devoid of evidence pointing to guilt, orif the evidence

on a key element of the offense was so tenuous that a conviction would be shocking.’” Id. (quoting United States v. Taylor,

226 F.3d 593, 597–98 (7th Cir. 2000)). 
No. 13-2760 9

Our review of the record satisfies us that the evidence is

sufficient to support Rucker’s conviction under either of these

two standards. Although the placement of the two men in the

same holding cell occurred by mistake, the evidence supports

the inference that Rucker took full and deliberate advantage of

the unexpected opportunity to punish Alvarez. Upon

Alvarez’s arrival in the cell, Rucker uttered a remark indicating

that Alvarez’s testimony against him was at the forefront of

Rucker’s mind. It is true, as Rucker emphasizes, that Alvarez,

Walton, and Farrell differed on the words that Rucker used.

But this is not surprising. The incident was over just as quickly

as it had begun, the trial did not occur until some four months

later, and human memory is imperfect. What matters is that

each of the witnesses recalled Rucker making a remark that

highlighted Alvarez’s status as a cooperating witness. Rucker

was free to argue, as he did, that the jury should not credit the

witnesses’ accounts given the inconsistencies as to exactly what

they heard Rucker say. But the jury was entitled to conclude,

as it obviously did, that the witnesses were being truthful and

that regardless of the exact words Rucker used, he was chiding

Alvarez for his cooperation with the government and that

Rucker’s subsequent attack on Alvarez was animated by an

intent to retaliate against Alvarez for that cooperation.

The jury could also infer that the steps Rucker took next

amounted to a deliberate and calculated attack on Alvarez,

rather than a sudden loss of temper and control in the heat of

an argument. Both the testimony and the video establish that

Rucker waited until the guards had closed the outer door to

the cell before he approached Alvarez and slammed his head

against the concrete wall. The evidence likewise reveals that
10 No. 13-2760

Rucker waited for another moment after the attack, watching

Alvarez on the floor, before he went to the door and summoned help, falsely telling the guard that Alvarez had slipped

and fallen. Finally, and perhaps most tellingly, after he and the

other prisoners were removed from the holding cell, Rucker

remarked to the other prisoners, “He shouldn’t have snitched

on me. He shouldn’t have told on me. That’s what happens.”

R. 84 at 48; see also R. 84 at 83 (“He shouldn’t have done it.”).

Rucker contends that the evidence does not demonstrate

that he perceived Alvarez’s testimony as having had a negative

impact on his sentence, noting that the dispute as to his

relevant conduct was ultimately resolved by way of a stipulation between the parties. But whatever impact Alvarez’s

testimony ultimately did or did not have on the sentence is, in

a sense, beside the point. Alvarez testified on the government’s

behalf at Rucker’s sentencing, and he did so at a point in the

proceeding when the defense was contesting the extent of

Rucker’s relevant conduct. Rucker was present in court for

Alvarez’s testimony, and it is a fair inference, to say the least,

that he would have appreciated that Alvarez was not there to

help the defense. In short, the jury readily and reasonably

could have inferred (independently of the parties’ stipulation

that Alvarez’s testimony contributed to an increase in Rucker’s

sentence) that Rucker had reason to be displeased with

Alvarez’s cooperation with the government and his decision to

testify for the government at Rucker’s sentencing.

In sum, from Rucker’s words and actions, the jury reasonably concluded that Rucker attacked and caused bodily harm

to Alvarez because of his cooperation withthegovernment and

with the intent to retaliate against him for that cooperation.
No. 13-2760 11

B. Reasonableness of the Sentence

We begin our evaluation of Rucker’s sentence with the

observation that the sentence, although at the statutory

maximum, was within the advisory Guidelines range. We

therefore presume that it is reasonable. Rita v. United States, 551

U.S. 338, 347, 127 S. Ct. 2456, 2462–63 (2007); see also, e.g., United

States v. Valley, 755 F.3d 581, 587 (7th Cir. 2014) (per curiam).

Rucker bears the burden of rebutting that presumption by

showing that the sentence is unreasonable as measured against

the sentencing factors set forth in section 3553(a). United States

v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). He fails in his

attempt to make this showing.

The district court considered both the mitigating as well as

the aggravating aspects of Rucker’s history and his offense in

light of the section 3553(a) criteria. The court ultimately

concluded that what was most important was that the offense

was calculated, that Rucker committed the offense within days

of his sentencing for another offense, that an offense of this

nature was an affront to the judicial process and jeopardized

prison security and discipline, and that, consequently, a stiff

sentence was warranted in order to both protect the public

from Rucker and to deter others from committing a similar

offense. We can find no fault either with the thoroughness of

the court’s analysis of the pertinent factors orthe conclusion to

which it came. The sentence is severe, but it is a lawful sentence

and the judge appears to have given conscientious consideration to it.

Rucker challenges certain of the factualfindingsunderlying

the court’s determination. We have already addressed his
12 No. 13-2760

contention that the evidence does not support a finding that he

had reason to believe that Alvarez’s testimony had had a

negative impact on his sentence, and that he was acting with an

intent to punish Alvarez on that ground. Rucker also contends

that the evidence does not support the judge’s finding that his

actions during the encounter were “cold, calculated, and

deliberate.” R. 85 at 41. But this was by no means a clearly

erroneous characterization of his actions: Rucker had time to

contemplate what he was doing; he simply seized an unexpected opportunity to obtain retribution against Alvarez. His

remarks after the fact lend allthe confirmation that is necessary

to show that his actions were deliberate. 

Rucker also challenges the court’s decision to order that his

sentence on the retaliation charge be served consecutively to

his sentence on the narcotics charge. Our review of that

decision is for abuse of discretion. See United States v. Littrice,

666 F.3d 1053, 1059 (7th Cir. 2012) (citing United States v.

O’Hara, 301 F.3d 563, 571 (7th Cir. 2002)). 

That court was well within its discretion in making the

retaliation sentence consecutive to the narcotics sentence. The

criminal code indicates that ordering a defendant to serve

consecutive rather than concurrent sentences which were

imposed at different times is the default, and the relevant 2

provision of the Guidelines specifically advises consecutive

18 U.S.C. § 3584 provides, in relevant part, that “[m]ultiple terms of

2

imprisonment imposed at differenttimes runconsecutively unless the court

orders that the terms are to run concurrently.” See United States v. Jackson,

546 F.3d 465, 472 (7th Cir. 2008) (citing Romandine v. United States, 206 F.3d

731, 737–38 (7th Cir. 2000)). 
No. 13-2760 13

sentences in this situation. The court appropriately considered 3

the section 3553(a) sentencing factors in deciding between

concurrent or consecutive terms, and its choice of the latter was

entirely rational. The retaliatory attack on Alvarez was an

offense entirely distinct from Rucker’s narcotics offense;

moreover, as the district court pointed out, his calculated

decision to commit the attack, just days after he assured the

court that he was on the road to reform, revealed Rucker to be

a genuine threat to the public.

Finally, there is no merit to Rucker’s contention that the

district court erred in treating him as a career offender, a

determination which was based in part on his narcotics

conviction, and in relying upon that status as a reason (among

others) for the consecutive sentence. Rucker was not being

punished twice for his narcotics offense; he was being punished incrementally for his decision to engage in a second

offense—and a particularly serious one in terms of its ramifications for cooperating witnesses like Alvarez—having already

been convicted and sentenced for the first offense.

C. Ineffective assistance

Rucker contends his trial counsel was ineffective for two

reasons. First, his counsel stipulated that Alvarez’s testimony

Guidelines section 5G1.3(a) states that “[i]f the instant offense was

3

committed while the defendant was serving a term of imprisonment ... or

after sentencing for, but before commencing service of, such term of

imprisonment, the sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.” See United States

v. Campbell, 617 F.3d 958, 960 (7th Cir. 2010) (noting that the guideline’s

specification of consecutive sentences is “informative, but not binding”).
14 No. 13-2760

at Rucker’s narcotics sentencing contributed to a twenty-four

month increase in that sentence. See R. 83 at 214. Second, his

attorney did not move for a judgment of acquittal at the close

of evidence, which as noted limits our review to one for a

miscarriage of justice. 

A claim that a defendant was deprived of the effective

assistance of trial counsel is one that is ill-suited to resolution

on direct appeal, as it typically requires evaluation of the

circumstances that confronted counsel and the reasoning that

informed his decisions and defense strategy. E.g., United States

v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, “a

defendant who presents an ineffective-assistance claim for the

first time on direct appeal has little to gain and everything to

lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009)

(quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.

1997)), as the record is unlikely to lend sufficient support to

such a claim, and by raising it on direct appeal, the defendant

will be foreclosed from pursuing the same claim on collateral

review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir.

2014). At oral argument, we asked Rucker’s counsel whether

she really wished to pursue this claim on direct appeal, and

counsel confirmed that she does. So be it.

We see no evidence that trial counsel departed from

professional norms in stipulating that Alvarez’s testimony

contributed to an increase in Rucker’s sentence. The purpose

of Alvarez’s testimony was to establish relevant conduct (i.e.,

additional amounts of narcotics for which Rucker was responsible beyond the two kilograms that he had acknowledged in

pleading guilty) that would increase Rucker’s offense level and
No. 13-2760 15

with it his advisory sentencing range. The extent of that

conduct was a subject of dispute between the defense and the

government until Alvarez testified. That Alvarez was examined and cross-examined extensively demonstrates his importance to that determination. Rucker’s counsel described the

eventual agreement as to the additional amount of cocaine as

a “compromise,” United States v. Rucker, No. 11 CR 50052-5,

R. 154 at 6, and we note that it came to pass after the court, at

the close of Alvarez’s testimony, indicated that it was not

prepared to altogether disregard his testimony as incredible, as

the defense had suggested it should, see United States v. Rucker,

No. 11 CR. 50052-5, R. 153 at 125–126. It is thus a fair inference

that the eventual agreement between the parties as to Rucker’s

relevant conduct came to pass in part (if not in whole) because

of Alvarez’s adverse testimony. Rucker has given us no reason

to believe that he had a plausible factual basis on which to

dispute the notion that Alvarez’s testimony contributed to an

increase in his sentence, nor has he given us reason to secondguess counsel’s strategic decision to stipulate to the nexus,

which obviated the need for testimony explaining the context

and significance of Alvarez’s testimony and thus confined to a

minimum prejudicial evidence regarding Rucker’s history of

narcotics trafficking. Cf. United States v. Hope, 906 F.2d 254, 264

(7th Cir. 1990) (noting that stipulating to a prior conviction

may be the lesser of two evils for the defense).

Our previous discussion of the sufficiency of evidence

supporting Rucker’s conviction disposes of his contention that

his counsel was ineffective in failing to move for a judgment of

acquittal at the close of evidence. Even if we assume that trial

counsel is invariably required to make such a motion, Rucker
16 No. 13-2760

cannot possibly establish that he was prejudiced by the

omission, see, e.g., United States v. Persfull, 660 F.3d 286, 296 (7th

Cir. 2011); United States v. Allen, 390 F.3d 944, 951 (7th Cir.

2004), as the proof that he caused bodily harm to Alvarez with

the intent to retaliate against Alvarez for testifying against him

as a cooperating witness was more than sufficient. This was not

a case, in other words, in which the standard of review

applicable to the sufficiency claim made a difference.

III.

Rucker’s conviction on the chargeofwitness retaliation was

amply supported by the evidence, the sentence he received

was substantively reasonable, and the record does not support

his contention that his trial counsel was prejudicially ineffective as to the two matters he highlights. The judgment is

AFFIRMED.