Ineffective Assistance at Sentencing Still Needs Prejudice

The Tenth Circuit affirmed the denial of Mubarak Sulaiman Ukashat's motion to vacate his sentence. In United States v. Ukashat, No. 26-4108 (Read the decision (PDF)), filed November 12, 2026, the court held that he had not shown a reasonable probability that a document his lawyer never obtained would have led to a lower sentence.

The decision is an unpublished order and judgment. It says it is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited for its persuasive value under Tenth Circuit Rule 32.1.

The case before the § 2255 motion

Ukashat was indicted in the District of Utah on wire fraud, aggravated identity theft, and money laundering counts tied to four federal disaster-loan applications. He said an acquaintance had set up the applications and misused his identity. He instead pleaded guilty to a separate charge of failing to file currency reports, 31 U.S.C. § 5324(c)(1). The plea was under Federal Rule of Criminal Procedure 11(c)(1)(C), with an agreed range of 12 to 36 months in prison.

The plea agreement also had a collateral-attack waiver. That is a promise not to challenge the conviction or sentence later, including in a § 2255 motion. His waiver kept one exception: claims of ineffective assistance of counsel.

At sentencing, Ukashat objected to counting the loan and unemployment-benefit money as "relevant conduct," meaning conduct beyond the count of conviction that the judge uses in figuring the guideline range. On August 6, 2025, about two weeks before the August 21 hearing, he told his lawyer that Interpol's office in Nigeria had sent a notice about the acquaintance's crimes to its office in Washington, D.C. Prosecutors said they could not confirm the notice existed, because the Department of Justice had no record of it. The lawyer did not ask for a continuance, which is a postponement of the hearing. The judge overruled the objection and imposed 24 months, the bottom of the 24-to-30-month guideline range, with three years of supervised release.

In his 28 U.S.C. § 2255 motion, Ukashat argued that his lawyer was ineffective for not seeking a continuance to get the notice. He attached a draft summary dated July 30, 2025. The Tenth Circuit noted that it has many typographical and grammatical errors and that nothing shows it came from Interpol's Nigeria office. The district court denied the motion without a hearing, held his other claims barred by the waiver, and granted a certificate of appealability on the Interpol claim only.

What the court decided

Judge Carolyn B. McHugh wrote for the panel. Under Strickland v. Washington, 466 U.S. 668 (1984), a person must show deficient performance and prejudice. A court may decide either part first and stop if one fails.

The panel cited Glover v. United States, 531 U.S. 198 (2001), for the rule that any amount of added prison time caused by counsel's error matters under the Sixth Amendment. But the person must still show a reasonable probability that the error changed the sentence. Ukashat had not, for two reasons.

First, his lawyer made the same argument at sentencing, and the judge rejected it. The judge relied on the presentence report and the restitution, both of which Ukashat accepted in his plea agreement. The judge also doubted his account, saying that one does not generally "buy automobiles with grants, especially grants for charity."

Second, the district court read the Interpol materials when it ruled on the § 2255 motion. It found it "extremely doubtful" that a delay would have produced a lower sentence. The panel agreed. Because prejudice failed, it did not decide whether the lawyer's performance was deficient.

The panel then refused to expand the certificate to other issues. Under 28 U.S.C. § 2253(c)(2) and Slack v. McDaniel, 529 U.S. 473 (2000), reasonable jurists had to be able to debate the rulings. It held:

• No evidentiary hearing was needed. A hearing is not required when the facts, even if found in his favor, would not entitle him to relief.
• Cumulative error, which adds up several errors, needs at least two actual errors.
• His claim under Brady v. Maryland that the government mishandled the notice fell within the collateral-attack waiver. He did not meaningfully challenge the district court's ruling that the waiver was knowing, voluntary, and enforceable.
• A new claim about his lawyer's advice before the plea was raised for the first time on appeal, without a plain-error argument, so it was waived.

What it means for a § 2255 motion

A claim that a lawyer made a mistake at sentencing has to connect the missing evidence to a different sentence. In this case, the panel measured the Interpol material against what the judge actually relied on: the presentence report, the restitution, and facts admitted in the plea. Evidence that repeats an argument the judge already rejected did not meet that test here.

The case also shows how a collateral-attack waiver works. Claims outside its ineffective-assistance exception were barred, and an issue first raised in the court of appeals was treated as waived. Every claim should be in the § 2255 motion filed in the district court.

This note describes one unpublished order and judgment. Other panels and other circuits can apply these rules to different records.