USA v. Custis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
TAYVION D. HOWARD (04),
Defendant.
Case No. 22-20057-04-DDC
MEMORANDUM AND ORDER
Defendant Tayvion D. Howard has filed an unopposed motion under 28 U.S.C. § 2255.
Doc. 192. He asks the court to vacate his sentence because his trial counsel rendered
constitutionally deficient performance. Specifically, Mr. Howard asserts that “his lawyer failed
to object to an improper sentencing guideline enhancement.” Id. at 2. “To establish an
ineffective-assistance-of-counsel claim, one must show both deficient performance and resultant
prejudice to the defendant.” United States v. Babcock, 40 F.4th 1172, 1176 (10th Cir. 2022)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The court considers each prong, in
turn, below.
To prevail on Strickland’s first prong—constitutionally deficient performance—
defendant “must show ‘that counsel’s representation fell below an objective standard of
reasonableness[.]’” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting
Strickland, 466 U.S. at 688). The court recognizes that, usually, review of this prong is highly
deferential. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011). But, in this case, the
government has conceded that Mr. Howard’s counsel rendered inadequate assistance. Doc. 192
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at 1 (“The government joins in the requested relief.”). Such a concession isn’t unheard of. See
United States v. McGaughy, 670 F.3d 1149, 1153 (10th Cir. 2012) (“Here, the government
essentially conceded ineffective assistance of counsel[.]”). And so, the court adopts the parties’
position and finds that defense counsel’s failure to object to an inapplicable enhancement1
amounted to deficient performance.
“As for Strickland’s prejudice prong, [Mr. Howard] must establish that but for counsel’s
errors, there is a reasonable probability ‘the result of the proceeding would have been different.’”
Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010) (quoting Strickland, 466 U.S. at 694).
The erroneous enhancement added two levels to Mr. Howard’s offense level. Mr. Howard’s
Guideline range was 46 to 57 months, when a correct calculation would have produced 37 to 46
months. U.S.S.G. ch. 5 pt. A (sentencing table). The court sentenced Mr. Howard to 46
months—the lowest rung of a Guidelines sentence. Doc. 147 at 2 (Judgment). Had the PSR
calculated Mr. Howard’s Guideline range properly, the court likely would’ve sentenced him to
37 months. So, a reasonable probability exists that Mr. Howard, had counsel not missed the
improper enhancement, would have received a lower sentence.
The court thus grants Mr. Howard’s § 2255 motion and vacates his sentence. This Order
is stayed until the court can conduct a new sentencing hearing and enter an amended judgment
on the docket.
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Howard’s unopposed
Motion to Vacate Sentence under § 2255 (Doc. 192) is granted.
IT IS SO ORDERED.
1 	The court assumes the reader’s familiarity with its prior Order in this case, Doc. 175. That Order
explains the same error made for co-defendant Deldrick L. Bryant.
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Dated this 13th day of May, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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