Scoggins does contend that the submission of the sentencing issues to the jury was an improper trial procedure that violated his rights under the Sixth Amendment. He claims it was error for the court to read to the jury allegations from the indictment that pertained only to sentencing issues, and that the jury instructions on these issues were inadequate. The government asserts that because this case was tried after Blakely, but before the Supreme Court's decision in Booker, the district court acted correctly under the law at the time of the trial. Although there was ambiguity in the law before Booker was decided, we consider Scoggins's argument in light of law as it has developed by the time of this appeal. United States v. O'Malley, 425 F.3d 492, 495 (8th Cir. 2005). It is now clear, under the advisory guidelines scheme announced in Booker, that allegations concerning adjustments under the sentencing guidelines need not be included in an indictment or submitted to a jury.

The Court considered the appropriate 18 U.S.C. § 3553 factors, looked to the guidelines as advisory and sentenced the Petitioner to the low end of the guideline range. See, United States v. O'Malley, 425 F.3d 492 (8th Cir. 2005) ( Booker does not preclude a court from determining sentencing enhancements). To obtain relief on his ineffective assistance of counsel claim, petitioner must show both that his counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense.