In the

United States Court of Appeals

For the Seventh Circuit

No. 16-4182

IVY T. TUCKER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the 

Eastern District of Wisconsin

Nos. 2:14-cv-01303-LA and 2:14-cv-01304-LA — Lynn Adelman, Judge.

ARGUED APRIL 11, 2018 — DECIDED MAY 10, 2018

Before BAUER, SYKES, and BARRETT, Circuit Judges.

BAUER, Circuit Judge. In 2010, a jury convicted Petitioner

Ivy Tucker of conspiring to distribute more than one gram of

heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He

was sentenced to 40 years’ imprisonment after the district

court found that hisdrug distribution resulted in a death. After

his conviction was affirmed on direct appeal, Tucker filed a
2 No. 16-4182

petition pursuant to 28 U.S.C. § 2255, alleging that he received

ineffective assistance of counsel. The district court denied his

petition, and this appeal followed.

I. BACKGROUND

On June 23, 2009, a superseding indictment charged Tucker

and nine co-defendants with conspiracy to distribute more

than one gram of heroin. Paragraph Three of the indictment

included the additional allegation that “[o]n January 9, 2009,

death resulted from the use of heroin distributed by the

conspiracy.” All of Tucker’s co-defendants pleaded guilty;

Tucker proceeded to trial.

Prior to trial, Tucker and the government entered into a

stipulation to omit all evidence of the causation of the death

referenced in Paragraph Three and request that the district

court decline to instruct the jury on that portion of the indictment. On the first day of trial, the government orally presented

the district court with the following description of the parties’

agreement:

The government believes that [the causation of

death issue is] a sentencing factor and addresses

the mandatory minimum sentence in this case,

which would be 20 years ... . The mandatory

minimum of 20 years is still in play, and the

government believes it’s even more of a sentencing factor than an element of the offense, and

the government and defense believe that it

might be somewhat prejudicial to Mr. Tucker.

Based upon the fact that we have a young female who died because of the distribution of this
No. 16-4182 3

controlled substance—that it may be appropriate forthe case to be tried on the conspiracy, and

to leave the issue of causation of the overdose

death ... or remove the causing death aspect.

Include that as part of any sentencing factor if

the—or the sentencing phase of this case. (sic)

The court asked defense counsel if that was a correct

recitation of the parties’ discussion and counsel stated that it

was. 

Accordingly, the government did not present any evidence

regarding a death, and the court omitted Paragraph Three’s

charge of a resulting death when it read the indictment to

the jury. On October 14, 2010, the jury convicted Tucker of

conspiracy and, in response to the only additional special

verdict question, found that the offense involved more than

one kilogram of heroin.

Priorto sentencing, the United States Probation Office filed

a Presentence Investigation Report (“PSR”), which explained

that Tucker’s base offense level under the Sentencing Guidelines was 32 based on his conviction under 21 U.S.C.

§ 841(a)(1). However, the PSR recommended that, pursuant to

U.S.S.G. § 2D1.1(a)(2), the base level should increase to 38

because his offense involved more than one kilogram of

cocaine and “the offense of conviction establishe[d] that death

or serious bodily injury resulted from the use of the substance.”

Tucker’s sentencing hearing occurred on February 3, 2012.

At the hearing, the government presented evidence and called

several witnesses to establish that the heroin Tucker distrib-
4 No. 16-4182

uted was sold to Amanda Ward, who overdosed and died. The

district court found that, although other drugs were involved,

the heroin distributed by the members of the conspiracy was

the proximate cause of Ward’s death. Therefore, the court

adopted the findings of the PSR, which established a Guidelines range of 360 months’ to life imprisonment, and sentenced

Tucker to 40 years in prison with five years of supervised

release. Tucker’s counsel did not object to the court’s specific

finding as to Ward’s death, nor its adoption of the other

findings in the PSR. Tucker’s conviction was affirmed on

direct appeal. See United States v. Tucker, 714 F.3d 1006 (7th Cir.

2013).

Tucker then filed a petition under 28 U.S.C. § 2255, raising

a number of claims of ineffective assistance of counsel. Those

included claims that his trial counsel failed to object to certain

improper testimony and evidence, as well as general claims

that his appellate counsel failed to contest the sentencing

enhancements the district court applied.

While the petition was pending, Tucker filed, and the

district court granted, a “Motion to Expand the Record” to

include the specific argument at issue in this appeal. In that

motion, Tucker cited United States v. Lawler, 818 F.3d 281, 285

(7th Cir. 2016), where we held for the first time that

§ 2D1.1(a)(2) can apply only “when a resulting death (or

serious bodily injury) was an element of the crime of conviction, proven beyond a reasonable doubt or admitted by the

defendant.” Even though Lawler was decided well after Tucker

was sentenced, Tucker argued that his trial counsel rendered

ineffective assistance by failing to challenge the application of

§ 2D1.1(a)(2) in light of the fact that the jury made no finding
No. 16-4182 5

regarding Ward’s death in his case. The district court denied

Tucker’s petition in its entirety, and Tucker timely appealed.

II. DISCUSSION

Tucker appeals only from the denial of his claim that his

trial counsel rendered ineffective assistance by failing to

challenge the district court’s application of the § 2D1.1(a)(2)

enhancement. We review de novo the denial of a § 2255 petition

based on a claim of ineffective assistance of counsel. Fountain

v. United States, 211 F.3d 429, 433 (7th Cir. 2000).

To succeed on a claim of ineffective assistance of counsel

Tucker must satisfy the two-pronged burden set forth in

Strickland v. Washington, 466 U.S. 668 (1984). The “deficient

performance” prong requires him to “show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. Upon making that showing, he must then

demonstrate that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Because it is dispositive,

we need only address the first prong of the inquiry.

Section 2D1.1(a)(2) of the United States Sentencing Guidelines sets a base offense level of 38 if the defendant is convicted

of distributing one kilogram or more of heroin “and the offense

of conviction establishes that death or serious bodily injury

resulted from the use of the substance.” In 2016, this Court

followed the Third, Fifth, and Sixth Circuits in holding that the

enhancement only applies where the resulting death or serious

bodily injury “was an element of the crime of conviction,

proven beyond a reasonable doubt or admitted by the defendant.” Lawler, 818 F.3d at 285.
6 No. 16-4182

As a result of the parties’ stipulation, the jury in Tucker’s

case did not have the opportunity to make such a finding.

Tucker contends that his counsel’s failure to object to the

district court making the finding at sentencing and applying 

§ 2D1.1(a)(2) constituted deficient performance. Despite the

fact that Lawler was decided over four years after his sentencing hearing, he argues that the state of the law in other circuits

was such that it was unreasonable for his counsel to allow the

court to make that finding without objection. This argument is

unpersuasive.

Putting to one side the appropriate impact of rulings from

other circuits on counsel’s failure to object, Tucker’s argument

ignores that his counsel made the strategic decision to completely remove from the jury the factual question of whether a

death resulted from the drug distribution. By agreeing to cede

the determination of that issue to the district court at sentencing, Tucker’s counsel made the calculation that Tucker was

more likely to achieve an acquittal on the drug charge if the

jury did not hear any evidence regarding a death. “It is well

established that our scrutiny of counsel’s trial strategy is to be

deferential and that we do not second guess the reasonable

tactical decisions of counsel in assessing whether his performance was deficient.” Johnson v. Thurmer, 624 F.3d 786, 792

(7th Cir. 2010). It was surely a reasonable tactical decision

to strike a deal that would prevent the government from

putting evidence before the jury that Tucker’s drug dealing

resulted in the death of a 22-year-old woman.

It is true, as Tucker points out, that at the time of his

sentencing, three of our sister circuits had either explicitly held

or suggested that § 2D1.1(a)(2) applies only where the resulting
No. 16-4182 7

death is established beyond a reasonable doubt (or as part of

a plea agreement). See United States v. Greenough, 669 F.3d 567,

574–75 (5th Cir. 2012); United States v. Rebmann, 321 F.3d 540,

544 (6th Cir. 2003); United States v. Pressler, 256 F.3d 144, 157 n.7

(3d Cir. 2001). However, that was not established in this Circuit

until Lawler, and we have held that a failure to anticipate a

change or advancement in the law does not qualify as ineffective assistance. Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993).

Regardless, the question of whether Tucker’s counsel

should have known, based on existing case law, to make the

argument is not dispositive in this case because he made a

strategic decision not to do so. By agreeing to the stipulation,

he made the reasonable calculation that his client would be

better off if the jury did not hear any evidence regarding the

resulting death. It would lead to an absurd result if Tucker

were able to gain the benefit of taking that factual issue away

from the jury, only to turn around and argue that the district

court was also barred from resolving it. Because the issue was

not yet settled in this Circuit, and because Tucker’s counsel

made a reasonable tactical decision, we cannot say that the

failure to object to the application of the enhancement constituted deficient performance. See Johnson, 624 F.3d at 792.

III. CONCLUSION

Forthe foregoing reasons, the judgment of the district court

is AFFIRMED.