United States of America v. Aaron Keith Howard

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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), and was sentenced to 84 months’
imprisonment. Howard’s conviction arose out 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.” Finding no error, we affirm.
In assessing a 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. United
States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). 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 of whether the defendant actually was associated
with the . . . government agency).” USSG § 2B1.1(b)(9),
comment. (n.8(B)). Here, we find that the 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. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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