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If your lawyer made a mistake at sentencing — like not objecting to a wrong Guidelines calculation or an enhancement that did not apply — and there is a reasonable probability your sentence would have been lower without the mistake, that may be ineffective assistance of counsel you can raise under § 2255.
Most federal cases end in a conviction, by plea or trial, so sentencing is where a lawyer’s work often matters most. Even a small increase counts: “any amount of actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203 (2001).
This page is the sentencing part of our guide to ineffective assistance. The main page explains the two-part test from Strickland v. Washington, plea and appeal claims, and why these claims usually go in a § 2255 motion. Here we focus on what lawyers have missed at sentencing.
Below are decisions where courts found, or ordered a hearing on, ineffective assistance at sentencing. One (Manning) corrected the same kind of error on direct appeal instead. These are other people’s cases, not results obtained by this firm.
What sentencing mistakes have courts recognized?
- Jansen v. United States, 369 F.3d 237 (3d Cir. 2004). Counsel was ineffective where he failed to object to use of the defendant’s personal drugs in calculating his base level under the United States Sentencing Guidelines.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- Johnson v. United States, 313 F.3d 815 (2d Cir. 2002). Counsel was ineffective in failing to object to the miscalculation of defendant’s base level under the United States Sentencing Guidelines.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Manning, 452 F. App’x 700 (8th Cir. 2012) (per curiam) (unpublished). On direct appeal, the government agreed that counsel should have objected to a career offender calculation that used the wrong statutory maximum. The court decided the case as plain error in the Guidelines calculation and ordered resentencing.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Horey, 333 F.3d 1185 (10th Cir. 2003). Counsel’s failure to object to an inapplicable career offender enhancement amounted to ineffective assistance of counsel.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- Neary v. United States, 998 F.2d 563 (8th Cir. 1993). Counsel was ineffective where he advised defendant to waive the government’s noncompliance with the 21 U.S.C. § 851 filing requirement for an enhancement. Sentence vacated.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Headley, 923 F.2d 1079 (3d Cir. 1991). Counsel was ineffective for failing to argue for a minor-role reduction under U.S.S.G. § 3B1.2. The case was sent back so the court could consider that reduction.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Baird, 218 F.3d 221 (3d Cir. 2000). Remand for IAC determination where counsel failed to object to the use of defendant’s incriminating statements, which were immunized as part of a cooperation agreement.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- West v. United States, 994 F.2d 510 (8th Cir. 1993). Remand for IAC determination where counsel failed to object to not receiving the presentence report at least ten days before sentencing, as the rule then required, and also failed to object to errors in the report.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Conley, 349 F.3d 837 (5th Cir. 2003). Both trial and appellate counsel were ineffective where they failed to object to the defendant’s sentence, which exceeded the statutory maximum.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
What do these cases have in common?
In each one, the lawyer missed something that likely made the sentence longer. For the person serving it, any extra time matters — and as Glover holds, the law agrees.
Sentencing errors can also be raised in other ways, depending on timing: an objection at the hearing, a direct appeal, or a later motion. For how we approach federal sentencing itself, see federal sentencing at Criminal Center.
Common questions
My lawyer did not object to a badly miscalculated Guidelines range. Can I file a § 2255 motion?
Possibly. Federal sentencing is complicated, and lawyers sometimes miss errors. Failing to object to a Guidelines miscalculation is a common basis for these claims. You must show the error was real, a reasonable lawyer would have objected, and there is a reasonable probability the sentence would have been lower.
What is an example of ineffective assistance of counsel at sentencing?
A common example is a lawyer who does not object when the Guidelines range is calculated wrong, such as counting drugs for personal use in the drug quantity (Jansen, above). Start with the sentencing cases above. The links below have examples from the pretrial, trial, and appeal stages.
My lawyer did not object to a career offender enhancement, and I am not a career offender. Was that ineffective?
It may have been. Enhancements like career offender are heavily litigated, and the rules differ from circuit to circuit. Courts have found ineffective assistance where a lawyer failed to object to a career offender enhancement that did not apply. United States v. Horey, 333 F.3d 1185 (10th Cir. 2003). If you think this happened to you, book a consultation with Brandon Sample to talk it through.
Related pages
Cognizable Claims: The Court Lacked Jurisdiction
Cognizable Claims: The Conviction or Sentence Violates the Constitution
Cognizable Claims: Ineffective Assistance of Counsel
Strickland v. Washington (1984): The Two-Prong Test
Ineffective Assistance of Counsel: Pretrial
Ineffective Assistance of Counsel: Trial
Ineffective Assistance of Counsel: Appeal
Cognizable Claims: The Conviction or Sentence Violates Federal Law
Cognizable Claims: The Conviction or Sentence is Otherwise Subject to Collateral Attack
Questions about your case? Book a consultation to talk it through with Brandon Sample.