United States v. Damon Rucker , 766 F.3d 638 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2760
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAMON RUCKER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13 CR 50005 — Frederick J. Kapala, Judge.
ARGUED APRIL 3, 2014 — DECIDED AUGUST 19, 2014
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After Damon Rucker physically
attacked a co-defendant who had testified against him at his
sentencing on a narcotics conviction, Rucker was charged with
and convicted of witness retaliation, in violation of 18 U.S.C.
§ 1513(b). The district court ordered him to serve a prison term
of twenty years (the statutory maximum), consecutive to the
term imposed on his narcotics conviction. Rucker appeals,
2 No. 13-2760
contending that the evidence was not sufficient to support his
conviction, that his sentence is substantively unreasonable, and
that he was deprived of the effective assistance of trial counsel.
Finding no merit in any of these arguments, we affirm Rucker’s
conviction and sentence.
I.
Rucker purchased two kilograms of cocaine from Celestino
Alvarez-Montejano (“Alvarez”) for $64,000 in cash on October
8, 2011. Six weeks later, a grand jury charged Rucker, Alvarez,
and three others with conspiracy to distribute a controlled
substance and other narcotics offenses. Rucker chose to plead
guilty to a charge that he had attempted to possess, with the
intent to distribute, two kilograms of cocaine.
Rucker initially disputed the additional quantity of narcot-
ics that should be attributed to him as relevant conduct and
which would increase his base offense level. See U.S.S.G.
§§ 1B1.3, 2D1.1(c). The government averred that, in the five
years prior to the October 2011 sale, Rucker had been purchas-
ing kilogram-quantities of cocaine from Alvarez as often as six
to eight times per year; Rucker would then “rock” the powder
cocaine by converting it to crack cocaine. The government’s
position was that an additional fifteen kilograms of cocaine
should be attributed to Rucker as relevant conduct, based on
a conservative assumption that he had purchased one to three
kilograms of cocaine from Alvarez three to four times yearly.
See United States v. Rucker, No. 11 CR 50052-5, R. 83 at 3 ¶ 7.
At a sentencing hearing conducted on November 8, 2012,
the government presented the testimony of Alvarez in support
of its position as to relevant conduct. Alvarez had also pleaded
No. 13-2760 3
guilty (to the conspiracy charge along with a charge that he
had reentered the country illegally following deportation) and
had agreed to cooperate with the government. Alvarez
recounted his past narcotics transactions with Rucker, which
included sales of both marijuana and cocaine; by Alvarez’s
estimate, Rucker had been purchasing two or three kilograms
of cocaine from him every two to three months beginning in
2007 or 2008. Rucker was present in court for this testimony;
indeed, Alvarez identified him from the witness stand. After a
thorough cross-examination of Alvarez, Rucker’s lawyer asked
for a continuance so that he could look further into the veracity
of Alvarez’s testimony, unless the court was prepared to say
that it would not consider his testimony in assessing relevant
conduct. The court indicated that it was not prepared to
disregard Alvarez’s testimony; it therefore continued the
hearing until December 12, 2012.
At the continued hearing, the parties presented a stipula-
tion in which they agreed that an additional three and one-half
to five kilograms of cocaine should be attributed to Rucker as
relevant conduct. That quantity resulted in a two-level increase
to Rucker’s base offense level, and in turn boosted the advisory
sentencing range from a prison term of 63 to 78 months to a
term of 78 to 97 months. Defense counsel characterized the
agreed-upon drug quantity as a “compromise,” and urged the
court to consider the possibility that Alvarez had been less than
truthful in his testimony and that Rucker may in fact have
purchased substantially less cocaine from him than Alvarez
had said. United States v. Rucker, No. 11 CR 50052-5, R. 154 at
6-7. In its sentencing remarks, the district court noted the
apparent inconsistency between Rucker’s substantial history of
4 No. 13-2760
drug-dealing (among other offenses) on the one hand and his
positive attributes on the other (the court had received a
number of glowing letters from family, friends, and clergy).
I have a hard time reconciling these two people. You
can be a wonderful person who does noble acts, and
you can also be a monster. Who is the real Damon
Rucker[?] I don’t know.
Id. at 16. For his part, Rucker assured the court that his narcot-
ics offense was “out of character” and that he would “take the
time to get everything in order in my life and come back home
and be a productive citizen.” Id. at 11. The district court
ordered Rucker to serve a within-Guidelines prison term of 87
months.
On December 20, 2012, eight days after he was sentenced,
Rucker encountered Alvarez in a holding cell in the Ogle
County jail where inmates were being assembled and prepared
for transport to other locations.1 Rucker was present in the cell
with other prisoners when Alvarez was brought into the cell
already secured for transport in hand and leg shackles. Unlike
Alvarez, Rucker had not yet been placed in restraints. Accord-
ing to Alvarez, when he first entered the cell, he did not notice
Rucker (who was at the far end of the cell) and instead began
chatting with another inmate that he knew. Alvarez first
became aware of Rucker’s presence when Rucker remarked,
1
The Ogle County jail in Oregon, Illinois (roughly 100 miles west of
Chicago) was one of a number of county jails in or near the Chicago
metropolitan area that had contracted with the United States Marshals
Service to house federal detainees while criminal proceedings involving
those detainees were pending in the district court in Chicago.
No. 13-2760 5
“There’s the trick” or “That’s the trick right there.” R. 83 at 186,
199. Alvarez understood the comment to be a reference to the
fact that he had testified against Rucker. Two other inmates in
the cell would later testify that they heard Rucker make a
remark that likewise referred to Alvarez’s status as a cooperat-
ing witness, although they recalled Rucker using different
language. According to Tony Walton, Rucker had declared,
“You like to get on the stand on people.” R. 84 at 45. And
according to William “Joe” Farrell, Rucker had stated, “You’re
going to have to show your paperwork wherever you go.”
R. 84 at 78. Alvarez recalled uttering a brief retort to Rucker
along the lines of, “[W]hy don’t you say the full story?” R. 83
at 187.
Apart from the words Rucker uttered, what he did next is
undisputed and, in fact, was captured on video (albeit without
sound) by a security camera. Rucker waited for another
prisoner to be removed from the cell for shackling and for the
departing guards to close the outer as well as the inner door at
the entry to the cell. As soon as the outer door was closed,
Rucker walked across the room to Alvarez (whom he out-
weighed by almost eighty pounds), put his hand on Alvarez’s
shoulder, moved him off the ledge where he was standing to
a nearby wall, and then slammed Alvarez’s head against the
concrete wall. To Walton, it “[s]ounded like a baseball hitting
a bat[.]” R. 84 at 46. Alvarez immediately collapsed to the floor
and began to convulse; blood ran from his head. Rucker
returned to the other side of the cell and stood watching
Alvarez. After twenty seconds or so, Rucker walked to the cell
door and informed the guard that Alvarez had slipped and
fallen and was having a seizure. Guards cleared the cell while
6 No. 13-2760
emergency medical personnel attended to Alvarez, who was
still shaking. Walton testified that Rucker subsequently
remarked to the other prisoners, “He shouldn’t have snitched
on me. He shouldn’t have told on me. That’s what happens.
Whatever happens, happens.” R. 84 at 48. Farrell recalled
Rucker saying, ”He shouldn’t have done it.” R. 84 at 83.
Alvarez was transported by ambulance to a local hospital,
where he underwent a CT scan and had a small laceration on
his head cleaned and stapled; he was returned to the jail within
a few hours. Alvarez testified that he still experiences daily
neck pain as a result of the injury.
Rucker was subsequently charged with witness retaliation
in violation of section 1513(b), and the case went to trial. The
government presented the testimony of Alvarez, Walton, and
Farrell, among others. And, of course, the video recording of
the incident was played for the jury. The defense did not
present any witnesses, but argued that the government’s
evidence did not show that Rucker attacked Alvarez with the
intent to retaliate against him for his testimony at Rucker’s
sentencing. The jury found Rucker guilty as charged.
The Sentencing Guidelines advised a sentence in the range
of 210 to 262 months, which was capped at 240 months by the
statutory maximum. After considering the sentencing factors
set forth in 18 U.S.C. § 3553(a), the district court opted to
impose a sentence at the statutory maximum. The court
described Rucker’s retaliatory attack on Alvarez as “cold,
calculated, and deliberate,” R. 85 at 41, and emphasized that it
undermined the safety and security of the jail as well as the
integrity of the judicial process. A substantial sentence was
therefore warranted, in the court’s view, in order to deter
No. 13-2760 7
Rucker and others from committing similar acts. The court also
noted that just eight days prior to the attack, Rucker had
assured the court that his narcotics offense was out of character
and that he was making an effort to get his life in order and to
become a productive citizen. In light of the subsequent attack
on Alvarez, the court found these assurances to be “insincere
and deceitful.” R. 85 at 44. In short, Rucker was “a menace”
from whom the public needed protection. R. 85 at 43–44. The
court thus concluded that he should not only be sentenced to
the maximum term of 240 months, but that he should serve
that sentence consecutively to the term imposed on his
narcotics conviction.
II.
As we noted at the outset, Rucker pursues three issues in
this appeal. He first challenges the sufficiency of the evidence
underlying his conviction, primarily attacking the credibility of
the three witnesses to the attack on Alvarez. He moves on to
contest the reasonableness of the sentence, including the
district court’s order that he serve it consecutively to his
narcotics sentence. Finally, Rucker contends that his trial
counsel was ineffective, both in stipulating that Alvarez’s
testimony contributed to an increase in his narcotics sentence
and in failing to move for a judgment of acquittal at the close
of evidence.
A. Sufficiency of the Evidence
Rucker’s contention that the evidence is insufficient to
support the jury’s verdict focuses, as his defense at trial did, on
the element of intent. To prove Rucker guilty of the section
1513(b) offense, the government was obliged to show not only
8 No. 13-2760
that Rucker caused bodily injury to Alvarez, but that he did so
with the intent to retaliate against Alvarez for the latter’s
testimony against Rucker. United States v. Bolen, 45 F.3d 140,
142 (7th Cir. 1995). Rucker contends that there is inadequate
evidence that he harbored such an intent when he injured
Alvarez. He notes that the encounter between them was
fortuitous and occurred without forewarning: the Marshals
Service had requested that Alvarez be separated from Rucker,
and it is undisputed that the two never should have been
placed in the cell together. Rucker also maintains, as he did
below, that he harmed Alvarez in the midst of an argument,
not with an intent to punish him for his testimony.
Typically, we will affirm a conviction against a challenge to
the sufficiency of the underlying evidence so long as that
evidence, construed favorably to the government, would
permit a rational jury to find that each element of the offense
was proven beyond a reasonable doubt. E.g., United States v.
Whiteagle, No. 12-3554, — F.3d —, 2014 WL 3562716, at *14 (7th
Cir. Jul. 21, 2014). In this case, however, there was no defense
motion for a judgment of acquittal made at the close of
evidence, so our review is solely for a miscarriage of justice.
E.g., United States v. Natale, 719 F.3d 719, 743 (7th Cir. 2013),
cert. denied, 134 S. Ct. 1875 (2014). “This ‘most demanding
standard of appellate review’ permits reversal only if ‘the
record is devoid of evidence pointing to guilt, or if the evidence
on a key element of the offense was so tenuous that a convic-
tion would be shocking.’” Id. (quoting United States v. Taylor,
226 F.3d 593, 597–98 (7th Cir. 2000)).
No. 13-2760 9
Our review of the record satisfies us that the evidence is
sufficient to support Rucker’s conviction under either of these
two standards. Although the placement of the two men in the
same holding cell occurred by mistake, the evidence supports
the inference that Rucker took full and deliberate advantage of
the unexpected opportunity to punish Alvarez. Upon
Alvarez’s arrival in the cell, Rucker uttered a remark indicating
that Alvarez’s testimony against him was at the forefront of
Rucker’s mind. It is true, as Rucker emphasizes, that Alvarez,
Walton, and Farrell differed on the words that Rucker used.
But this is not surprising. The incident was over just as quickly
as it had begun, the trial did not occur until some four months
later, and human memory is imperfect. What matters is that
each of the witnesses recalled Rucker making a remark that
highlighted Alvarez’s status as a cooperating witness. Rucker
was free to argue, as he did, that the jury should not credit the
witnesses’ accounts given the inconsistencies as to exactly what
they heard Rucker say. But the jury was entitled to conclude,
as it obviously did, that the witnesses were being truthful and
that regardless of the exact words Rucker used, he was chiding
Alvarez for his cooperation with the government and that
Rucker’s subsequent attack on Alvarez was animated by an
intent to retaliate against Alvarez for that cooperation.
The jury could also infer that the steps Rucker took next
amounted to a deliberate and calculated attack on Alvarez,
rather than a sudden loss of temper and control in the heat of
an argument. Both the testimony and the video establish that
Rucker waited until the guards had closed the outer door to
the cell before he approached Alvarez and slammed his head
against the concrete wall. The evidence likewise reveals that
10 No. 13-2760
Rucker waited for another moment after the attack, watching
Alvarez on the floor, before he went to the door and sum-
moned help, falsely telling the guard that Rucker had slipped
and fallen. Finally, and perhaps most tellingly, after he and the
other prisoners were removed from the holding cell, Rucker
remarked to the other prisoners, “He shouldn’t have snitched
on me. He shouldn’t have told on me. That’s what happens.”
R. 84 at 48; see also R. 84 at 83 (“He shouldn’t have done it.”).
Rucker contends that the evidence does not demonstrate
that he perceived Alvarez’s testimony as having had a negative
impact on his sentence, noting that the dispute as to his
relevant conduct was ultimately resolved by way of a stipula-
tion between the parties. But whatever impact Alvarez’s
testimony ultimately did or did not have on the sentence is, in
a sense, beside the point. Alvarez testified on the government’s
behalf at Rucker’s sentencing, and he did so at a point in the
proceeding when the defense was contesting the extent of
Rucker’s relevant conduct. Rucker was present in court for
Alvarez’s testimony, and it is a fair inference, to say the least,
that he would have appreciated that Alvarez was not there to
help the defense. In short, the jury readily and reasonably
could have inferred (independently of the parties’ stipulation
that Alvarez’s testimony contributed to an increase in Rucker’s
sentence) that Rucker had reason to be displeased with
Alvarez’s cooperation with the government and his decision to
testify for the government at Rucker’s sentencing.
In sum, from Rucker’s words and actions, the jury reason-
ably concluded that Rucker attacked and caused bodily harm
to Alvarez because of his cooperation with the government and
with the intent to retaliate against him for that cooperation.
No. 13-2760 11
B. Reasonableness of the Sentence
We begin our evaluation of Rucker’s sentence with the
observation that the sentence, although at the statutory
maximum, was within the advisory Guidelines range. We
therefore presume that it is reasonable. Rita v. United States, 551
U.S. 338, 347, 127 S. Ct. 2456, 2462–63 (2007); see also, e.g., United
States v. Valley, 755 F.3d 581, 587 (7th Cir. 2014) (per curiam).
Rucker bears the burden of rebutting that presumption by
showing that the sentence is unreasonable as measured against
the sentencing factors set forth in section 3553(a). United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). He fails in his
attempt to make this showing.
The district court considered both the mitigating as well as
the aggravating aspects of Rucker’s history and his offense in
light of the section 3553(a) criteria. The court ultimately
concluded that what was most important was that the offense
was calculated, that Rucker committed the offense within days
of his sentencing for another offense, that an offense of this
nature was an affront to the judicial process and jeopardized
prison security and discipline, and that, consequently, a stiff
sentence was warranted in order to both protect the public
from Rucker and to deter others from committing a similar
offense. We can find no fault either with the thoroughness of
the court’s analysis of the pertinent factors or the conclusion to
which it came. The sentence is severe, but it is a lawful sentence
and the judge appears to have given conscientious consider-
ation to it.
Rucker challenges certain of the factual findings underlying
the court’s determination. We have already addressed his
12 No. 13-2760
contention that the evidence does not support a finding that he
had reason to believe that Alvarez’s testimony had had a
negative impact on his sentence, and that he was acting with an
intent to punish Alvarez on that ground. Rucker also contends
that the evidence does not support the judge’s finding that his
actions during the encounter were “cold, calculated, and
deliberate.” R. 85 at 41. But this was by no means a clearly
erroneous characterization of his actions: Rucker had time to
contemplate what he was doing; he simply seized an unex-
pected opportunity to obtain retribution against Alvarez. His
remarks after the fact lend all the confirmation that is necessary
to show that his actions were deliberate.
Rucker also challenges the court’s decision to order that his
sentence on the retaliation charge be served consecutively to
his sentence on the narcotics charge. Our review of that
decision is for abuse of discretion. See United States v. Littrice,
666 F.3d 1053, 1059 (7th Cir. 2012) (citing United States v.
O’Hara, 301 F.3d 563, 571 (7th Cir. 2002)).
That court was well within its discretion in making the
retaliation sentence consecutive to the narcotics sentence. The
criminal code indicates that ordering a defendant to serve
consecutive rather than concurrent sentences which were
imposed at different times is the default,2 and the relevant
provision of the Guidelines specifically advises consecutive
2
18 U.S.C. § 3584 provides, in relevant part, that “[m]ultiple terms of
imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.” See United States v. Jackson,
546 F.3d 465, 472 (7th Cir. 2008) (citing Romandine v. United States, 206 F.3d
731, 737–38 (7th Cir. 2000)).
No. 13-2760 13
sentences in this situation.3 The court appropriately considered
the section 3553(a) sentencing factors in deciding between
concurrent or consecutive terms, and its choice of the latter was
entirely rational. The retaliatory attack on Alvarez was an
offense entirely distinct from Rucker’s narcotics offense;
moreover, as the district court pointed out, his calculated
decision to commit the attack, just days after he assured the
court that he was on the road to reform, revealed Rucker to be
a genuine threat to the public.
Finally, there is no merit to Rucker’s contention that the
district court erred in treating him as a career offender, a
determination which was based in part on his narcotics
conviction, and in relying upon that status as a reason (among
others) for the consecutive sentence. Rucker was not being
punished twice for his narcotics offense; he was being pun-
ished incrementally for his decision to engage in a second
offense—and a particularly serious one in terms of its ramifica-
tions for cooperating witnesses like Alvarez—having already
been convicted and sentenced for the first offense.
C. Ineffective assistance
Rucker contends his trial counsel was ineffective for two
reasons. First, his counsel stipulated that Alvarez’s testimony
3
Guidelines section 5G1.3(a) states that “[i]f the instant offense was
committed while the defendant was serving a term of imprisonment … or
after sentencing for, but before commencing service of, such term of
imprisonment, the sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment.” See United States
v. Campbell, 617 F.3d 958, 960 (7th Cir. 2010) (noting that the guideline’s
specification of consecutive sentences is “informative, but not binding”).
14 No. 13-2760
at Rucker’s narcotics sentencing contributed to a twenty-four
month increase in that sentence. See R. 83 at 214. Second, his
attorney did not move for a judgment of acquittal at the close
of evidence, which as noted limits our review to one for a
miscarriage of justice.
A claim that a defendant was deprived of the effective
assistance of trial counsel is one that is ill-suited to resolution
on direct appeal, as it typically requires evaluation of the
circumstances that confronted counsel and the reasoning that
informed his decisions and defense strategy. E.g., United States
v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, “a
defendant who presents an ineffective-assistance claim for the
first time on direct appeal has little to gain and everything to
lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009)
(quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.
1997)), as the record is unlikely to lend sufficient support to
such a claim, and by raising it on direct appeal, the defendant
will be foreclosed from pursuing the same claim on collateral
review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir.
2014). At oral argument, we asked Rucker’s counsel whether
she really wished to pursue this claim on direct appeal, and
counsel confirmed that she does. So be it.
We see no evidence that trial counsel departed from
professional norms in stipulating that Alvarez’s testimony
contributed to an increase in Rucker’s sentence. The purpose
of Alvarez’s testimony was to establish relevant conduct (i.e.,
additional amounts of narcotics for which Rucker was respon-
sible beyond the two kilograms that he had acknowledged in
pleading guilty) that would increase Rucker’s offense level and
No. 13-2760 15
with it his advisory sentencing range. The extent of that
conduct was a subject of dispute between the defense and the
government until Alvarez testified. That Alvarez was exam-
ined and cross-examined extensively demonstrates his impor-
tance to that determination. Rucker’s counsel described the
eventual agreement as to the additional amount of cocaine as
a “compromise,” United States v. Rucker, No. 11 CR 50052-5,
R. 154 at 6, and we note that it came to pass after the court, at
the close of Alvarez’s testimony, indicated that it was not
prepared to altogether disregard his testimony as incredible, as
the defense had suggested it should, see United States v. Rucker,
No. 11 CR. 50052-5, R. 153 at 125–126. It is thus a fair inference
that the eventual agreement between the parties as to Rucker’s
relevant conduct came to pass in part (if not in whole) because
of Alvarez’s adverse testimony. Rucker has given us no reason
to believe that he had a plausible factual basis on which to
dispute the notion that Alvarez’s testimony contributed to an
increase in his sentence, nor has he given us reason to second-
guess counsel’s strategic decision to stipulate to the nexus,
which obviated the need for testimony explaining the context
and significance of Alvarez’s testimony and thus confined to a
minimum prejudicial evidence regarding Rucker’s history of
narcotics trafficking. Cf. United States v. Hope, 906 F.2d 254, 264
(7th Cir. 1990) (noting that stipulating to a prior conviction
may be the lesser of two evils for the defense).
Our previous discussion of the sufficiency of evidence
supporting Rucker’s conviction disposes of his contention that
his counsel was ineffective in failing to move for a judgment of
acquittal at the close of evidence. Even if we assume that trial
counsel is invariably required to make such a motion, Rucker
16 No. 13-2760
cannot possibly establish that he was prejudiced by the
omission, see, e.g., United States v. Persfull, 660 F.3d 286, 296 (7th
Cir. 2011); United States v. Allen, 390 F.3d 944, 951 (7th Cir.
2004), as the proof that he caused bodily harm to Alvarez with
the intent to retaliate against Alvarez for testifying against him
as a cooperating witness was more than sufficient. This was not
a case, in other words, in which the standard of review
applicable to the sufficiency claim made a difference.
III.
Rucker’s conviction on the charge of witness retaliation was
amply supported by the evidence, the sentence he received
was substantively reasonable, and the record does not support
his contention that his trial counsel was prejudicially ineffec-
tive as to the two matters he highlights. The judgment is
AFFIRMED.