Whether a defendant claiming ineffective assistance of counsel at sentencing can establish prejudice from a Sentencing Guidelines error despite the sentence relying in part on factors outside the Guidelines

QUESTION PRESENTED Due to defense counsel’s deficiency, petitioner was sentenced based on an incorrect Sentencing Guidelines range (57 months, using a range of 46-57 months), after which the sentencing court recited that if it was wrong in rejecting the defense calculation (37-46 months — also incorrect), it would vary upwards to impose the same sentence. The record is silent as to what sentence would have been imposed but for counsel’s deficiency, that is, if the correct range (21-27 months) had been considered. This case presents the question whether under Molina-Martinez v. United States, 578 U.S. 189 (2016), a defendant claiming ineffective assistance of counsel at sentencing can establish prejudice from such a Sentencing Guidelines error despite the sentence relying “in part” on factors outside the Guidelines. i