(B)Failure to use all available means to achieve a lower sentence.   Counsel can be faulted for failing to present mitigating evidence that counsel may have discovered during the investigation stage.[224]   Likewise, counsel’s failure to object to a misapplication of the sentencing law or guideline scheme can amount to deficient performance.[225]  Counsel’s failure to use all available means to achieve a lower sentence will not be considered a tactical decision where counsel fails to conduct an adequate investigation of the law or applicable facts.[226]  

[224] Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999) (finding counsel ineffective for failure to investigate after remand of sentence and failure to present mitigating mental health evidence); Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (abandonment of forceful mitigating evidence at sentencing not a reasonable tactical decision).

[225] United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996) (counsel’s failure to argue that six prior offenses were related and could not support career criminal sentencing could constitute prejudicial ineffective assistance of counsel). 

[226] See United States v. Castro, 26 F.3d 557 (5th Cir. 1994)(counsel’s failure to request Judicial Recommendation Against Deportation at sentencing is not strategic decision where counsel is not aware of its availability); see also United States v. Acklen, 47 F.3d 739, 743 (5th Cir. 1995) (counsel’s failure to note and appreciate the difference between “d-methamphetamine” and “l-methamphetamine,” and object to sentencing on that basis, could constitute prejudicial ineffective assistance of counsel).

Seventh Circuit

POST CON RELIEF " SENTENCE " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO OBTAIN AND REVIEW DOCUMENTS RELIED ON TO IMPOSE FEDERAL SENTENCE
United States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. Oct. 13, 2010) (The lawyer's failure . . . to obtain a copy of the indictment may conceivably have been a breach of her professional obligations to her client. United States v. Davenport, 986 F.2d 1047, 1048, 1049-50 (7th Cir.1993); cf. United States v. Tucker, 603 F.3d 260, 266-67 (4th Cir.2010). If so, and if the summary is inaccurate and the inaccuracy material, the defendant may have a claim of ineffective assistance of counsel that he can raise in a post-conviction proceeding.).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE
James v. Schriro, 659 F.3d 855 (9th Cir. Oct. 12, 2011) (prejudicial failure to investigate social history, mental state, and drug abuse required reversal of the sentence).