The United States Court of Appeals for the Eighth Circuit recently quantified the value of having "sophisticated" defense counsel at criminal sentencing hearings: as much as 27 months less prison time. The issue arose when a convicted defendant challenged his conviction because he received ineffective assistance of counsel. He argued that his attorney missed an argument explicitly provided for by the Sentencing Guidelines and that the District Court would not have imposed a 6 point enhancement on him but for his attorney’s negligence. This enhancement amounted to a 27 month difference between the bottom of the respective guideline ranges. 

The Eighth Circuit denied the requested relief and concluded that the attorney’s performance did not fall below the "degree of skill, care, and diligence of a reasonably competent attorney." The Court offered a number of reasons for its decision, such as: "this is not your garden variety Guidelines argument;” the argument is “‘relatively sophisticated’ and ‘counter-intuitive;’" and the argument "was overlooked by several extremely competent folks, starting with the probation officer . . . and ending with the district court."  Both the Government and the Court described the argument as "novel."  But the Eighth Circuit also acknowledged that the "Guideline sections at issue have been in effect for several years." 

According to my dictionary, "novel" means "new and not resembling something formerly known or used." Merriam-Webster’s Collegiate Dictionary 849 (11th Ed. 2012). But the argument the Court called "novel" is provided for in the Sentencing Guidelines.  It may be fair to say that these particular provisions of the Sentencing Guidelines are seldom used, but the word "novel" is incorrect by definition. Moreover, it is somewhat troubling that the Eighth Circuit has set the bar so low simply because it characterizes a Guideline argument as "relatively sophisticated."

So the lesson from this case is that, if your attorney muffs your sentencing because he or she could not be troubled to read the Sentencing Guideline provisions that apply to your case, do not expect habeas relief. Getting the correct argument before the sentencing court has always been better than hoping for relief through direct appeal or through a habeas petition, but the Eighth Circuit has upped the ante dramatically.

The case described and quoted from above is: Pierce v. United States, 686 F.3d 529 (8th Cir. 2012).