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Tucker v. United States

United States Court of Appeals, Seventh Circuit

May 10, 2018

Ivy T. Tucker, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued April 11, 2018

          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.

          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 his drug distribution resulted in a death. After his conviction was affirmed on direct appeal, Tucker filed a 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 controlled substance-that it may be appropriate for the 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.

         Prior to 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- 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 ...


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