                             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 his drug 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 indict-
ment. 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 senten-
       cing 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 fe-
       male who died because of the distribution of this
No. 16-4182                                                    3

       controlled substance—that it may be appropri-
       ate 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 Guide-
lines 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 sub-
stance.”
    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 Guide-
lines 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 convic-
tion, 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 reasonable-
ness.” 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 Guide-
lines 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 defen-
dant.” 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 sentenc-
ing 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 com-
pletely 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 sentenc-
ing, 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 perfor-
mance 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 ineffec-
tive 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 consti-
tuted deficient performance. See Johnson, 624 F.3d at 792.
                      III. CONCLUSION
    For the foregoing reasons, the judgment of the district court
is AFFIRMED.
