US v. Aaron Keith Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00216-RDB-1 Copies to all parties and the district court/agency. [999693580].. [15-4018]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4018

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON KEITH HOWARD,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cr-00216-RDB-1)

Submitted:

October 29, 2015

Decided:

November 5,2015

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Lucius T. Outlaw, III,
Assistant Federal Public Defender, Baltimore, Maryland, for
Appellant.
Rod J. Rosenstein, United States Attorney, Paul E.
Budlow, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Aaron

Keith

Howard

pled

guilty

to

conspiracy

to

steal

government property and theft of government property, 18 U.S.C.
§§

371,

641

(2012),

imprisonment.

and

Howard’s

was

sentenced

conviction

to

arose

84
out

months’
of

his

participation in a four-year operation with co-defendant Roland
Muir involving the theft of aluminum carts from a United States
Postal Service bulk mail facility in Maryland.

Howard and Muir

would arrive at the facility late at night and load the carts
into a truck; they later resold the carts for scrap metal value.
Over the course of their conspiracy, Howard and Muir stole 2611
carts, valued at approximately $3.7 million (netting them over
$400,000).
On appeal, Howard argues that the district court erred in
applying

a

two-level

enhancement

pursuant

to

U.S.

Sentencing

Guidelines Manual § 2B1.1(B)(9)(A) (2014), which provides for
the

enhancement

if

“the

offense

involved

.

.

.

a

misrepresentation that the defendant was acting on behalf of . .
. a government agency.”
In

assessing

a

Finding no error, we affirm.
challenge

to

the

district

court’s

application of the Guidelines, this court reviews the district
court’s factual findings for clear error, its legal conclusions
de

novo,

and

unpreserved

arguments

for

plain

error.

States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
2

United
This

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court will “find clear error only if, on the entire evidence,
[the court is] left with the definite and firm conviction that a
mistake has been committed.”

United States v. Manigan, 592 F.3d

621, 631 (4th Cir. 2010) (internal quotation marks and citations
omitted).
The Guidelines provide a two-level enhancement “in any case
in which the defendant represented that the defendant was acting
to obtain a benefit on behalf of . . . a government agency
(regardless
with

the

comment.

.

of
.

whether
.

the

government

(n.8(B)).

Here,

defendant

actually

agency).”
we

find

that

was

USSG

§

the

associated

2B1.1(b)(9),

district

court

properly concluded that Howard’s statement to a USPS employee
that

Howard

worked

for

the

IRS

in

Baltimore

warranted

the

enhancement.
Howard also argues, for the first time on appeal, that the
enhancement under § 2B1.1(b)(9) applies only to crimes involving
fraud and not theft.

Because Howard failed to raise this claim

below, review is for plain error.

See Fed. R. Crim. P. 52(b).

We find no error—let alone plain error—in the district court’s
application of § 2B1.1(b)(9) to a theft crime.

Section 2B1.1 is

entitled, in part, “Larceny, Embezzlement, and Other Forms of
Theft” and the Introductory Commentary to this section of the
Guidelines states that “[t]hese sections address basic forms of
property offenses: theft, embezzlement, fraud, forgery . . .”
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Accordingly, we affirm Howard’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.

AFFIRMED

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