Tucker v. United States, No. 16-4182 (7th Cir. 2018)Annotate this Case
Tucker and co-defendants were charged with conspiracy to distribute heroin, with an allegation that a 2009 death resulted from the use of heroin distributed by the conspiracy. Tucker’s co-defendants pleaded guilty. Tucker and the government agreed to omit all evidence concerning the death and requested that the court not instruct the jury on that portion of the indictment. The prosecution stated that the death was "a sentencing factor and addresses the mandatory minimum sentence ... 20 years" and did not present evidence regarding a death. The jury convicted Tucker of conspiracy, 21 U.S.C. 841(a)(1), and found that the offense involved more than one kilogram of heroin. The PSR explained that Tucker’s base offense level was 32 but recommended that, under U.S.S.G. 2D1.1(a)(2), the 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.” Tucker was sentenced to 40 years’ imprisonment after the court found that his drug distribution resulted in a death. The Seventh Circuit affirmed the rejection of his habeas petition, in which he claimed ineffective assistance of counsel. Whether Tucker’s counsel should have known to challenge the 2D1.1(a)(2) enhancement, is not dispositive because he made a strategic decision not to do so, based on the reasonable calculation that his client would be better off if the jury did not hear evidence regarding the resulting death.