___________ No. 95-2641

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Walter Cavanaugh, also known as * District of North Dakota Porgie Cavanaugh, * * (UNPUBLISHED) Appellant. *

___________ Submitted: February 7, 1996 Filed: May 10, 1996

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________ PER CURIAM.

Walter Cavanaugh appeals from the final judgment entered in th e Distric t Court for the District of North Dakota upon a guilty plea to a superc eding information charging him with abusive sexual contact with a child under the age of 12, within Indian country, in violation of 18 U.S.C

. §§ 2244(a) (1) and 1153. The district court sentenced Cavanaugh to 2 4
mon ths imprisonment and two years supervised release. For reversal, h e argues that the district court erred in calculating his base offense level

. For the following reasons, we vacate Cavanaugh's sentence and remand for resentencing.

The vic tim told investigators that, in the summer of 1993, she wa s walk ing down a road with Cavanaugh when he lay down by the side of th e road, asked her to approach him, and requested that she lie

### -2-

down beside him, whic h she did. Cavanaugh removed the victim's pants and "bloomers," began to rub her between the legs, and placed his finger insid e her vagina. The vict im stated that Cavanaugh would not stop rubbing her, and that he was kissing her and trying to get on top of her. Cavanaug h finally told the victim to pull up her pants, that he was just trickin g her, and that she should never tell anyone or he would kill her.

The probation officer who prepared Cavanaugh's presentence repor t (PSR) recommended a base offense level of 16 und er U.S.S.G. § 2A3.4(a)(1), whichapplies "if the offense was committed by the means set forth in 18 U.S.C. § 2241(a) or (b)." Commentary explains i n relevant part that those "means " include "using force against the victim," or "threatening o r placing the victim in fear that any person will be subjected to death , serious bodily injury , or kidnapping." U.S.S.G. § 2A3.4, comment. (n.1). The probation officer added 4 levels because the victim was under age 12, and subtracted 3 levels for acceptance of responsiblity. The resultin g offense level of 17 and Cavanaugh's Category I criminal history produced a Guidelines sentencing range of 24-30 months.
Cavanaugh objected to the base offen se level of 16, arguing that the proper base offense level was 10. See U.S.S.G. § 2A3.4(a)(3) (base offens e level is 10 when offense was committed by means other than those set forth in § 2241(a) or (b), or in 18 U.S.C. § 2242). The district cour t
neve rtheless adopted the calculations in the PSR, noting that it wa s considering Cavanaugh's act; the victim's age, c oupled with the warning to her; and the child's helplessness. The district court did not connec t these factors, however, with the issue of whether the offense was committe d by the use of force or threats. Instead, the district court indicated tha t these factors weighed against awarding Cavanaugh an acceptance-of

responsibility reduction.
On appeal, Cavanaugh maintains that the information before the

### We r eject as meritless the remaining arguments raised i n 1 

### Cavanaugh's brief. -3- district court did not support a factual finding that force or threats wer e used to commit the crime, and that the district court wanted to assess a final offense level of 17 and honor the governme nt's recommendation for an acceptance-of-responsibilityreduction, regardless of the correc t application of the Guidelines. The government a grees that the case should be remanded.

Upon ou r review of the record, we conclude that the district cour t failed separately to analyze the issues of acceptance of responsibility an d base offense level. The district court also did not make clear findings on whether force or threats were used in commiss ion of the offense. It is theref ore unclear why the district court concluded the appropriate bas e offense level was 16. Accordingly, we vacate Cavanaugh's sentence an d remand the case with directions to the district court to reconsider these sentencing issues, consistent with this opinion, and to resentence him. 1

A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.