                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                      June 12, 2018
                     _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff–Appellee,

v.                                                 No. 17-8060
                                         (D.C. No. 1:17-CR-00072-SWS-1)
MATTHEW WADE HOWARD,                                 (D. Wyo.)

       Defendant–Appellant.
                  _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      Mr. Matthew Wade Howard pleaded guilty to possession of a firearm

by a person subject to a domestic violence protection order, possession of

stolen firearms, and possession of an unregistered firearm. 18 U.S.C.

§ 922(g)(8), 922(j); 26 U.S.C. §§ 5841, 5845(a), 5861(d). The district




*
      The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
court sentenced Mr. Howard to 54 months’ imprisonment, 3 years’

supervised release, and a $300 fine. Mr. Howard appeals, arguing that

           the district court erred in applying a four-level sentencing
            enhancement for possession of a firearm in connection with
            another felony and

           the sentence is substantively unreasonable based on a failure to
            adequately weigh the mitigating factors.

We reject both arguments.

I.    The Sentencing Enhancement

      The probation office recommended a four-level sentencing

enhancement for possession of a firearm “in connection with another

felony offense.” See U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B).

The district court agreed and imposed the enhancement. Mr. Howard argues

that this enhancement cannot be applied when the other felony is theft and

the firearms are simply the items that were taken.

      Because Mr. Howard did not present this challenge in district court,

we apply the plain-error standard. United States v. Banks, 761 F.3d 1163,

1196 (10th Cir. 2014). Under this standard, an error is reversible only if it

is obvious. FDIC v. Kan. Bankers Sur. Co., 840 F.3d 1167, 1172 (10th Cir.

2016). If any error was committed here, it was not obvious.

      Mr. Howard’s challenge is foreclosed by United States v. Marrufo,

661 F.3d 1204 (10th Cir. 2011). There we applied the same enhancement,

and the issue was the applicability of the enhancement when the other


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felony was tampering with evidence consisting of a firearm. 661 F.3d at

1206–07. The defendant argued that the firearm had to be separate from the

other offense. Id. at 1208. We rejected this argument based on the

guideline’s text and the fact that the defendant could have committed the

crime of unlawfully possessing the gun without tampering with it. Id.

      Mr. Howard concedes that under Marrufo, the enhancement could be

applied even if the firearms were the items taken. We need not decide

whether Mr. Howard’s concession was necessary. Even if it wasn’t, any

possible error would not have been obvious. As a result, we conclude that

Mr. Howard has not shown plain error.

II.   Substantive Reasonableness

      Mr. Howard also argues that his 54-month sentence is substantively

unreasonable. We disagree.

      Sentences must be substantively reasonable. United States v. Walker,

844 F.3d 1253, 1255 (10th Cir. 2017). Substantive reasonableness is

reviewed under the abuse-of-discretion standard. United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). A district court abuses its

discretion by deciding an issue arbitrarily, capriciously, whimsically, or in

a way that is manifestly unreasonable. Id.

      Because the 54-month sentence was below the guideline range, the

sentence is considered presumptively reasonable. United States v. Balbin-

Mesa, 643 F.3d 783, 788 (10th Cir. 2011). In addition, the district court

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could reasonably consider aggravating circumstances, such as Mr.

Howard’s act of sawing off a shotgun and threats to shoot police and have

his father and ex-wife murdered.

       Mr. Howard contends that the district court should have put greater

weight on mitigating factors, such as his drug addiction, concussions,

positive support system, and lack of a lengthy criminal history. These

factors persuaded the court to vary downward by 33 months. The refusal to

vary downward even further was not arbitrary, capricious, whimsical, or

manifestly unreasonable. Thus, we conclude that Mr. Howard has not

shown an abuse of discretion.

III.   Disposition

       We reject Mr. Howard’s challenges to the sentence. As a result, we

affirm.

                                   Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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