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# United States Court of Appeals For the Seventh Circuit

No. 13-2760
U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee ,

v.

D AMO N RU C KE R

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Western Di v i sio n. No. 13 CR 50 00 5 — Frederic k J. K apa la , Judg e.
A RGUE D A P R

I L 3, 2014

— D E C I D E D A UGUST 19, 2014

Before P O S N E R

, F L AUM , and R OVN E R

, Circ uit Judges.

R OVN ER , Cir cui t Judge. After Damon Rucker physi cally attacke d a co-defendan t who had testifi ed again st hi m a t hi s sentencing on a narcotics convic tion, Rucker w as charged wi th and convic ted of wi tness ret ali a t io n, in violati on of 18 U.S.C. § 1513(b)

. The di stric t court or dered hi m to serv e a pris on ter m of tw enty y ears (the statuto ry maxi mum ), consec uti v e to the ter m i mposed on hi s narcotics convic tion. Rucke r appeals,2 No. 13-2760
contending that the evidenc e w as not suffi ci ent to supp or t hi s convic tion, that hi s sentence i s s ub s tan tive l y u n re asonable, and that he w as depriv ed of the effecti v e assi stance of tr i al couns el. Fin ding no merit in any of these arg uments, w e affi rm Rucker’s convic tion and s entence. I. Rucker purchas ed tw o kilograms of cocaine from Celesti no Alv arez-Mo ntej ano (“Alv arez”) for $64,000 in cash on October 8, 2011. Six w eeks later

, a gr and jury charged Rucker, Alv arez, and t hr ee other s wi th conspi racy to di strib ute a contro lled sub stance and other narcotics offenses

. Rucker chose to plead gui lty to a charg e t ha t he had atte mpted to possess, wi th the intent t o dis tr ibute, tw o kilogr ams of c ocaine. Rucker ini tiall y di sputed the addi tional quanti ty of narcotics that should be attr ibuted to hi m as relev ant conduc t a nd whi ch w ould increase hi s base offense lev el. See U.S.S .G. §§ 1B1.3, 2D1.1(c ). The gover nment av err ed that, in the fi v e y ears prior to the October 2011 sale, Rucker had been purchas

ing kilogram-quanti ties of cocaine from Alv arez as often as si x to ei ght tim es per y ear; Rucker w ould then “ro ck” the powder
co caine by conv ert ing i t to crack cocaine. The government ’ s posi tion w as that an addi tional fi ftee n k ilo gr ams of cocaine should be attr ibuted to Rucker as relev ant conduc t, ba sed on a conserv ativ e assu mpti on that he had purchas ed one to three kilograms of cocaine from Alv arez three to four tim es y early

. See United S tat es v. Ruc ker , No. 11 CR 50052-5, R. 83 at3 ¶ 7. At a sente nc ing hearin g conduc ted on Nov ember 8, 2012, the government presented the testim ony of Alv arez in supp or t of i ts posi tion as to relev ant conduc t. Alv arez had also pleadedNo. 13-2760 3 gui lty (to t he co ns pi racy charge along wi th a charge that he had reent ered the country i llegally following deport ation) and had agr e e d to cooper ate wi th the government. Alv arez recounted hi s past narcotics tr ansac tions wi th Rucker , which inclu ded sales of both mari juana and cocaine; by Alv arez’s esti mate, Rucker had been purchas ing tw o or three kilograms of cocaine from hi m ev ery tw o to t hr e e mo nths begi nning in 2007 or 2008. Rucker w as present in court for thi s testim ony; indeed, Alv arez i denti fi ed hi m from the wi tness stand. After a thor ough cross-ex a m in a ti on of Al v a rez, Rucker’s lawy er asked for a conti nuanc e so that he could look further into the v eraci ty of Alv arez’s testim ony

, unles s the court w as p r epared to say that i t w ould not consi der hi s t esti mony in assessing relev ant conduc t. The court indi cat e d that i t w as not prepar ed to di sregar d Alv arez’s test imo ny ; i t there fore conti nued the hearin g untilDecember 12, 2012. At the co nt inued hearin g, the parties presented a sti pulation in whi ch they agr eed that an addi tional three and one-half to fiv e kilograms of cocaine should be attr ibuted to Rucker as relev ant conduc t. That quanti ty resulted in a tw o-lev el increas e to Rucker’s base offense lev el, and in turn boosted the advis or y sentencing range from a priso n t e r m of 63 to 78 months to a ter m of 78 to 97 months. Defens e couns el characterized the agr eed-upon drug quanti ty as a “compromi se,” and urged the
co u rt to consi der the possi bi li ty that Alv arez had been less than tr uthful in hi s testim ony and that Rucker may in fact hav e purchas ed sub stanti ally less cocaine from hi m than Alv arez had sai d. United State s v
. R u cker , No. 11 CR 50052-5, R. 154 at 6-7. In i ts sentencing remark s, the d ist ric t court noted the apparent inconsi s te n cy b e twe e n Ru c ke r’s sub stanti al hi stor y of4 No. 13-2760 drug-deali ng ( among other offens es) on the one hand and hi s p o sit ive attr ibutes on the other (the court had receiv ed a numb er o f glowing lett ers from fami ly , fri ends, and clergy ). I hav e a hard tim e reconci ling these tw o people. Y ou can be a w onderful person who does noble acts, and y ou can also be a monster

. Who i s the real Damon Rucker[?] I don’t k now

. Id. at 16. For hi s part, Rucker assu red the court that hi s narcoti cs offense w as “out of character” and that he w ould “take the tim e to get ev ery thi ng in or der in my li fe and come back home and be a productiv e ci tiz e n. ” Id. at 11. The di stric t court
or dered Rucker to serv e a wi thi n-Gu i delines pris on ter m of 87 months. On December 20, 2012, ei ght days after he w as sen t enced, Rucker encountered Alv arez in a ho lding cell in the Ogle County jail where inmates w ere being a s s e mb l e d and prepar ed for tr ansport to other locations

. Rucker w as present in the cell 1 wi th othe r pris oners when Alv arez w as brought into the cell already secu red for tr ansport in hand and leg shac kles. Unli ke Alv arez, Rucker had not y et been placed in restr aints. According to Alv arez, when he fi rst enter ed the cell, he di d not notic e Rucker (who w as at the far end o f t he cell) and instead began chatti ng wi th another inmate that he knew

. Alv arez fi rst bec a me aw are of Rucker’s presence when Rucker remark ed,

The Ogle Co unty jai l i n Oregon, Il l i noi s (ro ughly 10 0 mil es west of 1 Chic ago) was one of a numb er of county jai l s i n or near the Chic ago metrop ol i tan ar e a tha t had contracted with the Uni ted States Marshals Ser v i ce t o house fed eral detainee s whil e cri minal pro ceed i ngs i nv ol v i ng those d etainees wer e pe nding i n the di stric t co urt i n Chicago.No. 13-2760 5
“There’s the tr i ck” or “That’s the tr i ck right there .” R. 83 at 186, 199. Alv arez un dersto od the comment to be a refer ence to the fact that he had testifi ed again st Rucker. T w o other inmates in the cell w ould later testif y that the y he a r d Rucker make a remark that li kewi se refer red to Alv arez’s status as a cooper ating wi tness, although they recalled Rucker using di fferent language. Accordi ng to T ony W alton, Ruck er had declared, “Y ou li ke to get on the stand on people.” R. 84 at 4 5. And according to Wi lli am “Joe” Far rell, Rucker had stated, “Y ou’re going to hav e to show you r p aperw or k wherev er y ou go.” R. 84 at 78. Alv arez r e ca l l e d ut ter ing a bri ef ret or t to Rucker along the lines o f, “[W]hy don’t y ou say the full stor y?” R. 83 at 187. Apartfrom the w or ds Ruc ker utter ed, what he di d next is undi sputed and, in fact, w as captured on video (albei t wi thout sound) by a security camera. Rucker w ai ted for another pris oner to be removed from the cell for shac klin g and for the departing guards to close the outer as well as the inner door at the entry to t he ce l l. As soon as the outer door w as closed, Rucker w a lked across the ro om to Alv arez (wh om he outw ei ghed by almost ei ghty pounds) , put hi s hand on Alv arez’s should e r , mov ed hi m off the ledge where he w as standing to
a nearby w all, and then sl a mmed Alv arez’s head again st the concrete w all. T

o W alton, i t “[s] ounded like a base ba l l hi tting
a bat[.]” R. 84 at 46. Alv arez i mmedi ately collapsed to the floor and be gan to convulse; blood ran from hi s head. Rucker ret urned to the other si de of t he cell and stood w atching Alv arez. After tw enty seconds or so, Rucker w alked to the cell door and info r me d t he guard that Alv arez had sli pped and fallen and w as havin g a sei zure. Guards cleared the cell whi le6 No. 13-2760
emerge ncy medi cal p e r sonnel atte nded to Alv arez, who w as sti ll shaking. W

alton testifi ed that Ruck e r sub sequently remark ed to the other pris oners, “He shouldn ’t hav e sni tched
on me. He shouldn ’t hav e told on me. That’s what happens

. W hat ev er happens, happens .” R. 84 at 48. Far rell rec a l l e d Rucker saying, ”He sh o uldn’t hav e done i t.” R. 84 at 83. Alv arez w as tr ansported by ambu lance t o a local hospi tal, where he underw ent a CT scan and had a sm all laceration on hi s head cleaned and stapled; he w as ret urned to the jail wi thi n a few hours. A l v a r e z testifi ed that he sti ll exper i ences dai ly neck pain as a result of the injury

. Rucker w as sub sequently charged wi th wi tness ret ali ation in violati on of sectio n 1 5 1 3 (b ), and the case w ent to tr i al. The government presented the testim ony o f Alv arez, W alton, and Fa r rell, among other s. And, of course, the video recor ding of the inci dent w as play ed for the jury

. Th e d efense di d not prese nt any wi tnesses, but arg ued that the government’s evidenc e di d not sh ow that Ruc ker attacke d Alv arez wi th the intent to ret ali ate again st hi m for hi s testim ony a t R ucker ’s sentencing. The jury found Ruc ker gui lty as charged. The Sente ncing Gui delines advis ed a sentence in the range of 210 to 262 months, whi ch w as capped at 240 months by the statuto ry maxi mum

. After consi dering t he sentencing factors set fort h in 18 U.S.C. § 3553(a), the d ist r i ct court opted to i mpose a sentence at the statuto ry maxi mum

. The court described R uc k e r ’s ret ali ator y attack on Alv arez as “cold, calculated, and deliberate,” R. 85 at 41, and emphas i zed that i t undermined the safety and se cu r it y of the jail as well as the integr i ty of the judi ci al process. A sub stanti al sentence w as there fore w arr anted, in the court’s view , in or der to deterNo. 13-2760 7
Rucker and other s from commi tting si mi lar acts. The court also
no t e d that just ei ght days prior to the attack, Rucker had
assu red the court that hi s narcotics offense w as out of character and that he w as maki ng an effort to get hi s li fe in or der and to become a productiv e ci tizen. In li ght o f the sub sequent attack
on Alv arez, the court found these assu rances t o be “ins incere and decei tful.” R. 85 at 44. In shor t, Rucker w as “a menace” from whom t he publi c needed prot ecti on. R. 85 at 4 3

–4 4. The court t hus conclu ded that he should not only be sentenced to the maxi mum ter m of 240 months, but that he should se rv e that sentence consecuti v ely to the ter m i mposed on hi s narcotics convic tion. II. As w e noted at the outset, R uc k e r pursues three i ssu es in thi s appeal. He fi rst challenges the s uffi ci ency of the evi dence underlyin g hi s co nvi c ti on , p rim a ri ly attacking the credibi li ty of the three wi tnesses to the attack on Alv arez. He mov es on to contest the re a so na bleness of the sentence, inclu ding the di st r ict court’s or der that he serv e i t consec uti v ely to hi s narcotics sentence. Fin ally , Rucker contends th at hi s tr i al
couns e l w as ineffec tiv e, both in sti pulating that Alv arez’s testim ony contr ibuted to an in crease in his narcotics sentence and in fai ling to mov e for a judgment of acqui ttal at the close of evidenc e. A. Suffi ci ency of the Evidenc e Rucker’s contention that t he evidenc e i s insu ffi ci ent to supp or t the jury ’s v erdic t focus es, as hi s defense at tr i al di d, on the element of intent. T o prove Rucker gui lty of t he se ct ion 1513(b) offense, the government w as obli ged to show not only8 No. 13-2760
that Rucker caus ed bodi ly injury to Alv arez, but that he di d so wi th the intent to ret ali ate again st Alv a r e z for the latter ’s testim o ny again st Rucker. United States v
. Bolen , 45 F .3d 140, 142 (7 t h Ci r
. 1995). Rucker contends that there i s inadequate evidenc e that he harbor ed such an intent when he inju red Alv arez. He notes that the encounter betw een them w as fort ui tous and occurred wi thout forew arnin g: the Mar shals Ser vic e had requested that Alv arez be separated from Rucker, and i t i s undi sputed that the t w o nev er should hav e been placed in the cel l tog ether

. Rucker also maintains, as he di d below , that he harmed Alv arez in the mi dst of an a r g um e nt , not wi th an intent t o puni sh hi m for hi s testi mony

. T ypic ally , w e wi ll affi rm a convic tion again st a challen ge to the suffi ci ency of the underlyin g evid e nc e so long as that evidenc e, construed fav or ably to the government, w ould permi t a rat i onal jury to find t hat each element of t he offense

w as proven bey ond a reasonable doubt. E.g. , Unite d S tates v
. Whiteagle, No. 12-3554, — F .3d —, 2014 WL 3562716, at *14 (7th C ir

. Ju l. 21, 2014). I n t hi s case, how ev er , there w as no defense motion for a judgment of acquittal made at the close of evidenc e, so our rev i ew i s solel y fo r a mi scarri age of justic e. E.g. , United States v
. Nata le, 719 F .3d 719, 743 (7th Ci r
. 2013 ),

c e r t. denied, 134 S. Ct. 1875 (2014). “Thi s ‘most deman d ing standard of appellate rev i ew’ permi ts rev ersal only i f ‘the
recor d i s dev oid of evidenc e poin tin g to gui lt, or i f the evidenc e on a key element of th e offense w as so tenuous t hat a convic

tion w ould be shocking. ’ ” Id. (quoti ng United States v
. T aylor , 226 F .3d 593, 597–98 (7th Ci r . 2000)).No. 13-2760 9
Our rev i ew of the r e co r d sati sfi es us that the evidenc e i s suffi ci ent to supp or t Rucker’s convic tion under ei ther of these tw o standards. Although the placemen t of the tw o men in the
same holding cell occurred by mi stake, the evidenc e supp or ts the inference that Rucker too k full and deliberate adv antage of the unexpected oppor tuni ty to puni sh Alv arez. Upon Alv arez’s arr i v al in the cell, Rucker utter ed a remark indi cating that Alv arez’s testim ony again st hi m w as at the fo refro nt of Rucker’s m ind. It i s true, as Rucker emph asi zes, that Alv arez, W alton, and Far rell di ffered on the w or ds that Rucker used. But thi s i s not surpri sing. The inci dent w as ov er just as qui ckly
as i t had begun, the tr i al di d not occur unti l some four months later , and human memory is imp erfect. What matter s i s that each of the wi tnesses recalled Rucker making a r emark that hi ghli ghted Alv arez’s s tatus as a cooper atin g wi tness. Rucker

w as free to arg ue, as he di d, that the jury should not credi t the

w i tne s s e s ’ accoun ts giv en the inconsi stenci es as to exactly wh a t they heard Rucker say

. But the jury w as entitled t o co nclu de,
as i t obviousl y di d, that the wi tnesses w ere being tr uthful and that reg ardless of the exact w or ds Rucker used, he w as chi ding Alv arez for hi s cooper ation wi th the government and that Rucker’s sub sequent attack on Alv a r e z w as ani mated by an intent t o r etaliate agai nst Alv arez for that coo perat i on. The j ur y co uld also infer that the steps Rucker too k next
a mo unted to a deliberate and calc ulated attack on Alv arez, rat her than a s udden loss of temper and contro l in the heat of an argument. Both the testim ony and t he video establi sh that Rucker w a it e d unti l the guards had closed the outer door to the cell befor e he approached Alv arez and slammed h i s head
a g a inst the concrete w all. The evidenc e li kewi se rev eals tha t10 No. 13-2760
Rucker w ai ted for another moment after the att ack, w atching Alv arez on the floor

, before he w ent to the door a nd sum
moned help, falsely tellin g the guard that Alv arez had sli pped and fallen. Fin ally

, and perhaps most tellin gly , after he and the other pris oners w ere removed from the holding cell, Ruck e r remark ed to the other pris oners, “He shouldn ’t hav e sni tched
on me. He shouldn ’t hav e told on me. That’ s what happens .” R. 84 at 48; see also R. 84 at 83 (“He shouldn’t hav e done it.”). Rucker contends that the evidenc e doe s no t demonstrate that he percei v ed Alv arez’s testim ony as havin g had a negativ e i mpact on hi s sentence, noting that the di spute as to hi s relev ant conduc t w as ulti mately resolv ed by w ay of a sti pulation betw een the parties. But whatev er i mpact Alv arez’s testim ony ulti mately di d or di d not hav e on the sentence i s, in a sens e, besi de the poin t. Alv arez testifi ed on the government’s be ha l f a t R ucker’s sentencing, and he di d so at a poin t in the proceeding when the defense w as contestin g the ext ent of Rucker’s relev ant conduc t. Rucker w as present in co urt for Alv arez’s testim ony

, and it i s a fa ir inference, t o say the least, that he w ould hav e appreci ated thatAlv arez w as not there to help the defens e

. I n short, the jury readily and reasonably could hav e inferred (in dependently of the par ties ’ sti pulati on that Alv arez’s testim ony contribu ted to an increase in Rucker’s sentence ) that Rucker had reason to be di spleas ed wi th Alv arez’s cooper ation wi th the government and hi s deci si on to testif y for the go v ernment at R ucker’s sentencing. In sum, from Ruc ker ’s w or ds and acti ons, the jury reasonably conclu ded that Ruc ker attacke d and caus ed bodi ly h arm to Alv arez becau se of hi s cooper ation w i th the go v ernment and wi th the intent to r etaliate agai nst hi m for thatcooper ation.No. 13-2760 11
B. Reasonableness of the S entence W e begi n our ev al ua t io n of Rucker’s sentence wi th the
o bserv ation that the sentence, although at the statuto ry maxi mum, w as wi thi n the advisory Gui delines range. W e there fore presume that i t i s reasonable. Rita v
. United States , 551 U.S. 338, 347, 127 S. Ct. 2456, 2462–63 (2007); see also , e.g. , United S tates v
. V

alley, 755 F .3d 581, 587 (7th Ci r
. 2014) (per curi am). Rucke r be ars the burden of rebutting that presumpti on by showing that the sentence i s unreasonable as measu red against the sentencing factors set fort h in secti on 3553(a). United States

v
. Mykyt iuk

, 415 F

. 3 d 6 0 6 , 6 08 (7th Ci r
. 2005). He fai ls in hi s atte mpt to mak e this showing. The di stric t court consi dered both the mi tigati ng as w ell as the agg rav atin g aspects o f Rucker’s hi stor y and hi s offens e i n li ght of the secti on 3553(a) cri ter i a. The court ulti mately conclu ded that what w as most i mport ant w as that the offense

w as calculated, that Rucker commi tte d the offense wi thi n days of hi s sentencing for another offense, that an offense of thi s nature w as an affront to the judi ci al process and jeo pardized pris on secu rity and di sci pline, and that, consequently , a sti ff sentence w as w arr anted in or der to both prot ect the publi c from Rucker and to deter other s from commi tting a si mi lar offense. W

e can find no fault ei ther wit h t he thor oughness of the court’s analysi s of the pert inent factors or the conclu si on to whi ch i t came. The sentence i s sev ere, but i t i s a lawfu l sentence and the judge appears to hav e giv e n co ns ci entious consi der

ation to it. Rucker challen ges certain of the factua l fin d in gs u n d e rlying the court’s d eter minati on. W e hav e already addressed hi s12 No. 13-2760
contention that the evidenc e does not supp or t a finding that he had reason to beli ev e that Alv arez’s test imo ny had had a negativ e i mpact on hi s sentence, and that he w as acting wi th an intent to puni sh Alv arez on that gr ound. Rucker also contends that the evidenc e does not supp or t the judge’ s finding that hi s acti ons during th e encounter w ere “cold, calc ulated, and deliberate.” R. 85 at 41. But thi s w a s by no means a clearly
err oneous characterizati on of hi s acti ons: Rucker had tim e to contemplate what he w as doin g; he si mply sei zed an unexpected oppor tuni ty to obtain retribu tion against Alv arez. Hi s remark s after the fact lend all the confi rmation that i s necess ary to show that his acti ons w ere deliberate. Rucker also challen ges the court’s deci si on to or der that hi s sentence on the ret ali ation charge be serv ed consecut iv ely to hi s sentence on the narcotics charge. Our r e view of that deci si on i s for abus e of di screti on. See United States v
. Littrice, 666 F .3d 1053, 1059 (7th Ci r
. 2012) (ci tin g Unite d S ta te s v
. O’Hara , 301 F .3d 563, 571 (7th Ci r . 2002)). That court w as w ell wi thi n i ts di scretio n in mak ing the ret ali ation sentence consecuti v e to the narcotics sentence. The cri minal code indi cates that or dering a defe ndant to serv e consecuti v e rat he r than concu rr ent sentences whi ch w ere i mpose d a t d i fferent tim es i s the default, and the relev ant 2 prov i si on of the Guid e lines speci fi cally advis es consec uti v e

18 U.S .C. § 35 84 pro v i des, i n rel evant part, tha t “[ m]ul tip l e t e r ms o f 2 i mpri sonment i mposed at di ffere nt tim es run consecuti v el y unless the cour t
or ders tha t the terms are to run co ncurrentl y.” See United States v. Jack son , 54 6 F.3d 46 5, 47 2 (7 th Ci r. 20 08 ) (ci ting Romandine v. United States , 20 6 F.3d 73 1, 73 7– 38 (7 th Ci r. 2 00 0) ).No. 13-2760 13

sentences in thi s si tuation

. Th e c ou rt appropr i ately consi dered 3 t he secti on 3553(a) sentencing factors in deci ding betw een concu rr ent or consecuti v e ter ms, and i ts choi ce of the latter w as entirely rat i onal. The ret ali ator y attack on A lv arez w as an offense entirely di stinct from Rucker’s narcotics offense;
moreo v er

, as the d i stric t court pointed out, hi s calculated deci si on to commi t the attack, just day s after he assu red the court that he w as on the ro ad to refor m, rev ealed Rucker to be a genuine threatto t he publ i c. Fin ally , there i s no merit to Rucker’s contention that t he di stric t court err ed in t r e atin g hi m as a career offender , a deter minati on which w as based in part on hi s narcotics convic tion, and in rely ing upon that status as a reason (among other s) for the consecuti v e sentence

. R uc ker w as not being puni shed twi ce for hi s narcotics o ff e ns e ; he w as being puni shed incremen t a l l y for hi s deci si on to engage in a second offense—and a particu larly seri ous one in ter ms of i ts rami fi cations for cooper atin g wi tnesses l i ke Alv arez—hav ing already been convi cted and sentenc ed for t he fi rst o ffens e. C. Ineffecti v e assi stance Rucker contends hi s tr i al couns el w as ineffect iv e for tw o reasons. First, hi s coun sel sti pulated that Alv arez’s te sti mony

Gu i del i nes secti on 5G1. 3( a) states tha t “[ i ]f the i nstant of fense was 3 commi tted wh i l e th e def endant was serving a term ofimpri sonment ... or after sentencing fo r , but b efo re commenci ng service of, such term of i mpri sonment, the sentence fo r the i nstant of fense sha l l b e i mposed to run consecuti v el y to the undischarged term of i mpri sonment.” See United States

v. Campbell, 61 7 F

. 3 d 95 8, 96 0 (7 th Ci r. 20 10 ) (noti ng tha t the guid el i ne’s speci fi catio n ofco nsecutive sentences i s “i nfor mati v e, but not bindi ng”).14 No. 13-2760

at Rucker’s narcotics sentencing contribu ted to a tw enty-four month increase in that sentence. See R. 83 at 214. Second, hi s atto rney di d not mov e for a judgment of acqui ttal at the c lose of evidenc e, whi ch as noted li mi ts our r e view to one for a mi scarri age o f justi ce. A clai m that a defendant w as depriv ed of the effectiv e assi stance o f t rial counsel i s one that i s ill- sui ted to resolution
on di rect appeal, as i t typical ly requires e v aluati on of the ci rcums tances that confronted coun sel and the reasoning that informed hi s deci si ons and defense strat egy

. E.g. , United States

v
. Jones , 635 F .3d 90 9 , 9 1 6 (7th Ci r
. 2011). Consequently , “a defendant who presents an ineffec tiv e-ass i stance clai m for the fi rst tim e on di rect appeal ha s l it t le to gain and everything t o lose,” United States v
. T aylor , 5 6 9 F .3d 742, 748 (7th Ci r
. 2009) (q uo t ing United States v
. Cooke, 110 F .3d 1288, 1299 (7th Ci r
. 1 9 9 7)), as the recor d i s unlikely to lend suffi ci ent supp or t t o such a clai m, and by rais ing i t on di rect appeal, the defendant wi ll be foreclosed fr om pursuing the same clai m on collateral
rev i ew , e.g. , United States v

. W allace, 753 F .3d 671, 676 (7th Ci r
. 2014). At or al arg ument, w e asked Rucker’s couns el whether she really wi shed to pursue thi s clai m on di rect appe a l , and
couns el confi rmed that she does. So be i t. W e see no evidenc e that tr i al couns el departe d fr om professi onal norms in sti pulating that Alv are z ’ s testim ony contribu ted to an increase in Rucker’s sentence. The purpose of A lv arez’s testim ony w as to establi sh relev ant conduc t ( i.e. , addi tional amounts of narcotics for whi ch Rucker w as responsi ble bey ond the tw o kilograms t hat he had acknowledged in pleading gui lty) that w ould in c rease Rucker’s offense lev el andNo. 13-2760 15
wi th i t hi s advis or y sentencin g range. The ext ent of that conduc t w as a subject o f di spute betw een the defense and the government unti l Alv arez testifi ed. That Alv arez w as examined and cross-examined ext ensi v ely demonstrate s hi s i mpor
t a nc e to that deter minati on. Rucker’s couns el described the
ev entual agr eement as to t he addi tional am ount of cocaine as a “compromi se,” United States v
. Ru c ke r , No. 11 CR 50052-5, R. 154 at 6, and w e note that i t came to pass after the cour t, at the close of Alv arez’s testim ony , indi cated that i t w as not prepar ed to altog ethe r d i s regard hi s testim ony as incredible, as the defense had suggested i t should, see United States v
. Ruc ker , No. 11 CR. 50052-5, R. 153 at 125–126. It i s thus a fai r inference that the ev entual agr eement betw een the parties as to Rucker’s relev ant conduc t came to pass in part (i f not in whole) becau se of Alv arez’s adv erse testim ony

. Rucker has giv en us no reason to beli ev e that he had a plaus ible factual bas is o n whi ch to di spute the not i on that A lv arez’s te sti mony contr ibuted to an increase in hi s sentence, nor has he given us reason to secondguess co uns el’s strat egic deci si on to sti pulate to the nexus, whi ch obviated the n eed for testi mony explaining the context and si gni fi canc e of Alv arez’s testim ony and thus confined to a mini mum prej udi cial evidenc e reg ardin g Rucker’s hi stor y of narcotics tr affi cking. Cf. United States v
. Hope, 906 F .2d 254, 264 (7th Ci r
. 1990) (notin g that sti pulating to a prior convic tion may be the lesser of tw o ev i ls for the defense). O ur prev i ous di scu ssi on of the suffi ci ency of eviden ce supp or tin g Rucker’s convic tion di sposes of hi s contention that hi s couns el w as ineffec tiv e in fai ling to mov e for a judgment of acqui ttal at the close of evidenc e. Ev en i f we assu me that tr i al
couns el i s inv ariab ly re qui red t o m ake such a m otion, Rucker16 No. 13-2760

cannot possibly establi sh that he w as prej udi ced by the omi ssi on, see, e.g. , United States v
. Persful l , 660 F .3d 286, 296 (7th Ci r
. 2011); United States v
. Al len , 390 F .3d 944, 951 (7th Ci r
. 2004), as the proo f that he caus ed bodi ly harm to Alv arez wi th the intent to ret ali ate again st Alv arez for testif yin g again st hi m as a cooper atin g wi tness w as more than suffi ci ent. Thi s w as not
a case, in other w or ds, in whi ch the standard of r e v i ew appli cable to the suffi ci ency clai m made a di fference. III. Rucker’s convic tion on the charge of w i tne ss ret ali ation w as amply supp or ted by the evidenc e, the sentence he r e ce ived

w as sub stanti v ely reasonable, and the recor d does not supp or t hi s contentio n t hat hi s tr i al couns el w as prej udi ci ally ineffec

tiv e as to the tw o matter s he hi ghli ghts. The judgme nt i s AFF IRM ED.