United States v. Howe

Case: 24-40340 Document: 78-1 Page: 1 Date Filed: 09/16/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

September 16, 2025

No. 24-40340

____________ Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Keenan Edward Howe,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:22-CR-21-1

______________________________

Before Elrod, Chief Judge, and King, and Graves, Circuit Judges.

James e. Graves, Jr., Circuit Judge:*

Keenan Edward Howe appeals the district court’s imposition of a

sentencing enhancement of 5 levels under U.S.S.G. § 2G2.2(b)(3)(B) and the

assignment of criminal history points under U.S.S.G. § 4A1.1(d). Finding no

error, we AFFIRM.

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-40340 Document: 78-1 Page: 2 Date Filed: 09/16/2025

No. 24-40340

FACTS AND PROCEDURAL HISTORY

Pursuant to an online investigation into child pornography by the

Federal Bureau of Investigation (FBI) in Montana, an undercover agent

(UC), who purported to be an adult male in Montana with access to two

children, posted on an adult website that he “was a father seeking like-

minded individuals for friendship or ‘swaps.’” On September 2, 2022,

Keenan Edward Howe of Texas sent the UC a direct message, and the two

then began corresponding on WhatsApp, a social messaging platform. Howe

immediately asked the UC if he had a daughter, to which the UC said that he

had access to a 4-year-old female and a 12-year-old female. Howe told the

UC that he had a 6-year-old daughter, and minutes later offered sexual access

to his daughter in exchange for sexual access to the UC’s daughters in

Montana. Howe discussed a plan to kidnap his daughter in Texas and take

her to Montana, and he told the UC he had previously sexually assaulted her

before a prior prison term. Howe also asked to buy the UC’s 4-year-old to

take back to Texas and offered to provide the UC with any video he took

while raping her. Howe explicitly detailed his plans to rape his daughter, the

UC’s children, and others, and he bragged about having raped other children.

Howe sent the UC photos of his daughter and the daughter’s mother, as well

as photos of other children. On September 8, Howe sent the UC six videos

and three images containing child pornography that he said he had received

from others on the same website. On September 13, Howe and the UC

discussed travel arrangements for the purpose of meeting the UC’s children

for sexual encounters, and Howe offered to pick them up from the airport in

Texas.

On September 14, 2022, authorities executed a search warrant for

Howe’s residence and an arrest warrant for Howe. During a recorded

interview, Howe admitted to receiving and distributing child pornography

with his cell phone. Pursuant to the search, FBI agents discovered hundreds

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of images and videos depicting child sex abuse material (CSAM) on Howe’s

two phones and two laptop computers. Agents also discovered conversations

in which CSAM was distributed and received between Howe and other

individuals on September 10, 2022, and September 12-14, 2022. Howe’s

sister later provided authorities with a Universal Serial Bus (USB) drive,

which contained additional CSAM, that she had found while cleaning out

Howe’s residence. Following indictment, Howe pleaded guilty without a

plea agreement to the following: One count of distribution of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B), (b)(1); one count

of receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B),

(b)(1); and one count of possession of child pornography in violation of 18

U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Prior to the plea hearing, the

government filed a written factual basis for the plea. Howe confirmed that

the factual basis was true.

The Presentence Investigation Report (PSR) calculated a total offense

level of 42, which included a 5-level enhancement under U.S.S.G.

§ 2G2.2(b)(3)(B) for distributing child pornography in exchange for valuable

consideration, i.e., sexual access to the UC’s minor daughters. The

probation officer also concluded that Howe’s criminal history category was

IV based on a total criminal history score of 8. That criminal history score

included 3 criminal history points under U.S.S.G. § 4A1.1(a) for a 2017 Texas

conviction for sexual assault of a child. The criminal history score also

included 3 criminal history points under U.S.S.G. § 4A1.1(d), which provides

for an additional point for each sentence resulting from a conviction of a

crime of violence that had been treated as a single sentence. Of these 3 points,

1 point was for a 2017 conviction for sexual performance of a child, and 2

points were for two 2017 Texas convictions for sexual assault of a child. The

PSR set out the guidelines imprisonment range of 360 months to life but

noted the statutory maximum of 100 years or 1,200 months. See U.S.S.G.

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§ 5G1.1(c)(1). Because Howe had a prior conviction for sexual assault of a

minor, the applicable statutory mandatory minimum for each of counts one

and two was 15 years and the mandatory maximum was 40 years. See 18

U.S.C. §§ 2252A(a)(2)(B), (b)(1). The mandatory minimum for count three

was 10 years and the mandatory maximum was 20 years. See 18 U.S.C.

§§ 2252A(a)(5)(B), (b)(2).

Howe filed a written objection to the 5-level enhancement under

U.S.S.G. § 2G2.2(b)(3)(B), and he reasserted his objection during the

sentencing hearing. Howe essentially argued that he sent the CSAM simply

because he was asked if he had any pornography and not because he wanted

something in return. The government argued that the entire purpose of the

exchange between Howe and the UC was for Howe to get access to the UC’s

children, and that the quid pro quo could also be implicit. The district court

overruled Howe’s objection to the enhancement. The government

requested a sentence of 960 months. However, the district court sentenced

Howe to a total of 720 months—300 months each on counts one and two,

and 120 months on count three, consecutive—and three concurrent life

terms of supervised release. Howe appealed his sentence.

STANDARD OF REVIEW

For preserved issues, this court reviews the district court’s

application of the sentencing guidelines de novo and its findings of fact for

clear error. United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018). “A

factual finding is not clearly erroneous if it is plausible in light of the record

as a whole.” United States v. Okulaja, 21 F.4th 338, 344 (5th Cir. 2021)

(internal marks and citation omitted). This court “will conclude that a

finding of fact is clearly erroneous only if a review of all the evidence leaves

us with the definite and firm conviction that a mistake has been committed.”

United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (internal marks

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and citation omitted). “The clear-error standard of review is a deferential

one.” Id. If there was procedural error, this court will remand unless the

government establishes that the error was harmless. Halverson, 897 F.3d at

651.

If the defendant failed to make an objection, this court reviews for

plain error. United States v. Randall, 924 F.3d 790, 795 (5th Cir. 2019); see

also Fed. R. Crim. P. 52(b). To prevail, the defendant must show an error

that is “clear or obvious,” i.e., not subject to reasonable dispute, and affected

his substantial rights. Randall, 924 F.3d at 795-96 (internal citation omitted).

If those three conditions are met, this court “should exercise its discretion to

correct the forfeited error if the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.” Id. at 796 (internal marks and

citation omitted).

DISCUSSION

I. Enhancement under U.S.S.G. § 2G2.2(b)(3)(B).

Howe asserts that the district court reversibly erred by applying a 5-

level enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which provides for the

base offense level to be increased by 5 levels “[i]f the defendant distributed

[child pornography] in exchange for any valuable consideration, but not for

pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B); see also U.S.S.G. § 2G2.2, cmt.

n.1. Howe objected to the enhancement. Because this issue was preserved,

this court reviews the district court’s application of the guidelines de novo

and its factual findings for clear error, as set out above.

On appeal, Howe asserts that there was not sufficient evidence that he

distributed child pornography in exchange for valuable consideration. He

argues that the government’s evidence does not show a quid pro quo

agreement with the UC or the other users to whom he distributed child

pornography. Howe asserts the plan to meet had already been decided at the

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time he sent the child pornography, and there is no evidence that the child

pornography was conditioned on his receipt of some benefit. Howe also

asserts that he did not actually receive such consideration. Further, Howe

asserts that the government cannot meet the burden of establishing that the

guidelines calculation error was harmless, particularly when combined with

the alleged error he raises in the second issue.

The government counters that the district court did not err in finding

that Howe distributed child pornography in exchange for valuable

consideration and imposing the enhancement. The government asserts that

there is sufficient evidence to show that Howe exchanged child pornography

for the purposes of gaining the UC’s trust and access to his minor daughters

because he wanted to drug and sexually abuse them. Alternatively, the

government asserts that even if there had been error, it was harmless because

it did not change Howe’s advisory guidelines sentencing range. The

government asserts that defense counsel previously conceded that, even if

the district court had granted Howe’s objection to the 5-level enhancement,

Howe would have received an additional 2-level enhancement under

U.S.S.G. § 2G2.2(b)(3)(F). Further, in such a situation, Howe would have

had a total offense level of 39, a criminal history category of IV, and the

guidelines range would have been the same—360 to 1,200 months.

As set out in Halverson, the government must prove by a

preponderance of evidence that: “(1) the defendant agreed to an exchange

with another person, (2) the defendant knowingly distributed child

pornography to that person (3) for the purpose of obtaining something of

valuable consideration, and (4) the valuable consideration came from that

person.” 897 F.3d at 652. In Halverson, this court concluded that “the

government failed to present any evidence to show that Halverson

distributed any child pornography to receive something of valuable

consideration from that person with whom he traded.” Id. (internal marks

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omitted). This court also concluded that the procedural error there was

harmless. Id.

Following Halverson, there was some disagreement as to whether the

fourth prong required the actual receipt of the valuable consideration. In an

unpublished opinion, a panel of this court acknowledged the Halverson test

while deciding a case on harmless error. See United States v. Dedual, 760 F.

App’x 339, 340 (5th Cir. 2019). The Sixth and Ninth Circuits concluded that

there is no requirement that the defendant actually receive the valuable

consideration. See United States v. Oliver, 919 F.3d 393, 398 (6th Cir. 2019);

see also United States v. Randall, 34 F.4th 867, 872 (9th Cir. 2022). At the

time of screening of Howe’s case, this court was considering the issue of

whether the fourth factor required the actual receipt of the valuable

consideration in another case, in which an opinion has since issued. In United

States v. Fucito, 129 F.4th 289 (5th Cir. 2025), this court clarified that there

is no requirement under Halverson that the defendant actually receive the

valuable consideration in exchange for distributing child pornography under

§ 2G2.2(b)(3)(B). Id. at 293-95. Thus, Fucito dispenses with Howe’s

argument regarding the fourth prong. But Howe also asserts that he did not

distribute the child pornography “for the purpose of obtaining something of

valuable consideration” under prong three because he and the UC had

already agreed to meet and provide access to their children.

This court in Fucito reiterated that such an agreement can be explicit

or implicit. Id. at 294. The record here provides sufficient evidence of an

implicit agreement, much like that in Fucito. Further, despite Howe’s

argument that the UC had not expressed any reluctance about following

through, it is clear from the record that Howe was still trying to convince the

UC that he was serious well after the initial discussion of the plan. Howe

made statements like, “I’m for real wanna rape your kids and hers tbh…and

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mine.”1 Howe also continued to share disturbing details of additional crimes

he had committed or wanted to commit. The initial discussion was of Howe

taking his daughter to Montana to meet up with the UC and his children. But

then Howe tried to convince the UC to bring his daughters to Texas and to

sell his 4-year-old daughter to Howe.

The district court’s finding that Howe distributed child pornography

in exchange for valuable consideration is plausible in light of the record as a

whole. See Okulaja, 21 F.4th at 34. Thus, Howe is unable to establish clear

error in the district court’s application of the 5-level enhancement.

II. Criminal history.

Howe asserts that the district court plainly erred by classifying his

2017 Texas convictions for sexual assault of a child and sexual performance

of a child as crimes of violence under U.S.S.G. § 4B1.2(a) and assessing 3

criminal history points under U.S.S.G. § 4A1.1(d).

Howe had a total criminal history score of 8, including 3 criminal

history points under § 4A1.1(d), which provides for an additional point for

each sentence resulting from a conviction of a crime of violence that had been

treated as a single sentence. Of those 3 points, 1 point was for a 2017

conviction for sexual performance of a child, and 2 points were for two 2017

convictions for sexual assault of a child. See Tex. Pen. Code §§ 22.011(a)( 2),

(c)(1) and 43.25(a)(2), (b).

Howe asserts that those 2017 Texas convictions do not qualify as

crimes of violence pursuant to § 4B1.2(a) under this court’s precedent

because neither has the use of force as an element, both can be committed

when a victim has factually consented, and sexual performance can be

_____________________

1

“[T]bh” is typically slang for “to be honest.”

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committed in Texas through mere touching. He also asserts that neither

offense qualifies as a “forcible sex offense” under § 4B1.2(e)(1). However,

even if Howe is arguably able to establish error, he is unable to establish that

it affected his substantial rights unless he also prevails on the first issue of

whether the district court erred by applying a 5-level enhancement under

U.S.S.G. § 2G2.2(b)(3)(B). Because he does not prevail on the first issue,

the 3 criminal points here would not affect his guidelines range. Without the

3 points, Howe’s criminal history category would have been III instead of IV.

A criminal history category of III and a total offense level of 42 would

ordinarily result in a guidelines range of 360 months to life, and Howe’s

guidelines range would still be 360 to 1,200 months based on the mandatory

terms. Thus, he is unable to demonstrate that any error affected his

substantial rights under prong three, and we do not reach the fourth prong.

See Randall, 924 F.3d at 795-96.

For these reasons, the judgment of conviction and sentence are

AFFIRMED.

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