(B)  Ineffective legal argument at sentence.[273]

[273] Gentry v. Roe, 320 F.3d 891 (9th Cir. August 8, 2002), reversed by Yarborough v. Gentry, 124 S.Ct. 1 (October 20, 2003) (ineffective assistance shown where trial counsel elected, in closing argument, to ignore evidence on record that would help client and highlight detrimental record and non-record evidence, which did not fall within the area of legitimate “trial strategy”). But see Bell v. Cone, 535 U.S. 685 (May 28, 2002) (state court finding that defense counsel’s failure to present mitigating evidence at sentencing and waiver of closing argument did not amount to ineffective assistance was neither “contrary to” nor an “unreasonable application” of federal law under Strickland standard).

Ninth Circuit

POST CON REVIEW " SENTENCE " GROUNDS " DUE PROCESS " RELIANCE ON UNRELIABLE, UNSUBSTANTIATED ALLEGATIONS
United States v. McGowan, 668 F.3d 601 (9th Cir. Jan. 26, 2012) (federal sentencing court violated due process, by relying on unreliable, unsubstantiated allegations in imposing sentence, where prisoner witness made unreliable allegations that defendant prison guard smuggled drugs into prison; there was no further evidence in record or inference that might be drawn in support of prisoner's extremely serious charges, there was no explanation as to why defendant would have engaged in such felonious conduct with prisoner, and sentencing judge had no opportunity to observe prisoner in order to evaluate his credibility).

POST CON RELIEF - SENTENCE - GROUNDS - DOUBLE JEOPARDY
United States v. Brobst, 558 F.3d 982 (9th Cir. Mar. 9, 2009) (vacating sentence, where concurrent sentences for child pornography possession and receipt violated the Double Jeopardy Clause).

POST CON RELIEF - HABEAS - GROUNDS - INSUFFICIENT EVIDENCE TO SUPPORT SENTENCE ENHANCEMENT
Garcia v. Carey, ___ F.3d ___, 2005 WL 107090 (9th Cir. Jan. 20, 2005) (grant of habeas relief affirmed where there was constitutionally insufficient evidence to support the imposition of gang and gun sentencing enhancements).
http://caselaw.lp.findlaw.com/data2/circs/9th/0256895p.pdf

POST CON REVIEW " SENTENCE " GROUNDS " DUE PROCESS " RELIANCE ON UNRELIABLE, UNSUBSTANTIATED ALLEGATIONS " STANDARD OF REVIEW
United States v. McGowan, 668 F.3d 601 (9th Cir. Jan. 26, 2012) (To establish that his right to due process [at sentence] was violated, McGowan must show that the allegations were (1) false or unreliable, and (2) demonstrably made the basis for the sentence. . . . Challenged information is deemed false or unreliable if it lacks some minimal indicium of reliability beyond mere allegation.); citing United States v. Vanderwerfhorst, 576 F.3d 929, 935"36 (9th Cir.2009) (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984); see United States v. Hanna, 49 F.3d 572, 577 (9th Cir.1995) (sentencing court violated due process by relying on allegations made under oath, but not subjected to many of the procedural mechanisms traditionally used to test witness testimony, where the jailhouse informant had everything to gain and nothing to lose by implicating the defendant, and presumably provided information to the FBI in the hope of being granted some sort of leniency, and could be expected to confirm the truth of this information when he testified at trial); cf. Gonzalez v. Wong, No. 08"99025, 2011 WL 6061514, at *33"*37 (9th Cir. Dec.7, 2011) (recounting a 1989"90 Los Angeles County Grand Jury investigation that revealed the disturbing ease and frequency with which jailhouse informants provided false testimony); United States v. Corral, 172 F.3d 714, 716 (9th Cir. 1998) (In determining whether a defendant has shown that unreliable information was demonstrably made the basis for [his] sentence, we read the record and decide whether reliance on [the] information ... probably did occur.).