FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSHUA WILLIAM SCHEU, 

Defendant-Appellant.

No. 22-10044 

D.C. No. 

4:19-cr-02615-

CKJ-DTF-1 

OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted February 7, 2023

Phoenix, Arizona

Filed August 2, 2023

Before: Michael Daly Hawkins, Susan P. Graber, and 

Morgan Christen, Circuit Judges.

Opinion by Judge Hawkins
2 USA V. SCHEU

SUMMARY*

Criminal Law

The panel affirmed a sentence for two counts of 

aggravated sexual abuse of a child in violation of 18 U.S.C. 

§§ 2241(c), 2246(2), & 1152, in a case in which the district 

court applied a four-level enhancement under U.S.S.G. 

§ 2A3.1(b)(5) because “the victim was abducted.”

The panel wrote that whether it evaluates the plain 

meaning of the term “abducted” as it appears in the 

Guideline itself, or considers “abducted” to be ambiguous 

and looks to the definition in the Guidelines’ commentary, 

U.S.S.G. § 1B1.1, cmt. n.1(A) (2004), it would reach the 

same conclusion: the victim was “abducted” when the 

defendant forced her from the roadside where he 

encountered her into a nearby cornfield to perpetrate the 

sexual assault.

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. SCHEU 3 

 

COUNSEL

J. Ryan Moore (argued), Assistant Federal Public Defender; 

Jon M. Sands, Federal Public Defender; Federal Public 

Defender’s Office for the District of Arizona; Tucson, 

Arizona; for Defendant-Appellant. 

Shelley K.G. Clemens (argued) and Corey J. Mantei, 

Assistant United States Attorneys; Christina M. Cabanillas, 

Deputy Appellate Chief; Gary M. Restaino, United States 

Attorney, District of Arizona; Office of the United States 

Attorney; Tucson, Arizona; for Plaintiff-Appellee. 

OPINION

HAWKINS, Circuit Judge: 

Defendant Joshua William Scheu appeals his sentence 

following a guilty plea to two counts of aggravated sexual 

abuse of a child in violation of 18 U.S.C. §§ 2241(c), 

2246(2) & 1152. He contends that the district court 

misapplied a sentencing enhancement for abduction and thus 

improperly added four levels to his sentencing range. We 

have jurisdiction pursuant to 28 U.S.C. § 1291, and we 

affirm.

FACTS AND PROCEDURAL HISTORY

In October 2019, Scheu was indicted on two counts of 

aggravated sexual abuse of a child for sexual acts of violence 

committed against a fourteen-year-old Native American girl 

on the Gila River Indian Community outside of Phoenix, 

Arizona, in November 2004. Scheu pled guilty without the 

benefit of a plea agreement. 
4 USA V. SCHEU

The Presentence Investigation Report calculated the 

sentence using the 2004 version of the Guidelines, applied a 

downward adjustment for acceptance of responsibility, and 

added a four-level enhancement because “the victim was 

abducted.” U.S. Sent’g Guidelines Manual (“U.S.S.G.”)

§ 2A3.1(b)(5). This enhancement increased both ends of the 

advisory sentencing range by more than six years. Scheu 

objected, arguing that the abduction enhancement should not 

be applied because there was no significant change in 

location during or prior to the assault.

At the sentencing hearing, the government presented the 

testimony of a former Gila River Police Department 

detective who had investigated the case in 2004.1 The 

detective testified that the victim and victim’s mother said 

that the victim had been waiting by a dirt berm and water 

pumping station along 83rd Avenue when the defendant 

drove by, made a U-turn, parked, and got out of his vehicle. 

As he approached the victim, she began walking backwards, 

but Scheu caught up to her, grabbed her arms, and put his 

hand over her mouth. He then pushed, pulled, dragged 

and/or moved her approximately 35 to 40 feet into the corner 

of a nearby cornfield where the sexual assault occurred, and 

ordered her to lie down and not to scream or cry. The field 

was adjacent to the road, and the corn was approximately 

two-and-a-half feet high at the time. Several photographs 

and a hand-drawn diagram of the crime scene were admitted

in evidence. 

Overruling Scheu’s objection to the enhancement, the 

district court concluded that the forced movement of the 

victim from the roadside into the cornfield was sufficient to 

1 The victim died of natural causes in 2020 and was not available to 

testify at Scheu’s sentencing hearing.
USA V. SCHEU 5

support the abduction enhancement and noted that the 

defendant had “physically forced the victim into a cornfield 

to conceal the assault from public view or detection.” The 

court sentenced Scheu to 210 months of imprisonment and 

lifetime supervised release.

STANDARD OF REVIEW

We review de novo the district court’s legal 

interpretation of the Guidelines. United States v. GascaRuiz, 852 F.3d 1167, 1171 (9th Cir. 2017) (en banc). A 

court’s application of the Guidelines to the facts of a case is 

reviewed for an abuse of discretion and its factual findings 

for clear error. Id. at 1170.

DISCUSSION

The Sentencing Guideline at issue, U.S.S.G. 

§ 2A3.1(b)(5) (2004), provides:

Criminal Sexual Abuse; Attempt to Commit 

Criminal Sexual Abuse:

a. Base Offense Level: 30

b. Specific Offense Characteristics

. . . .

(5) If the victim was abducted, increase by 4 

levels.

The application note to this Guideline further provides that 

the term “abducted” in subsection (b)(5) shall “have the 

meaning given those terms in Application Note 1 of the 

Commentary to § 1B1.1.” In turn, the commentary to 

§ 1B1.1 explains:

“Abducted” means that a victim was forced 

to accompany an offender to a different 
6 USA V. SCHEU

location. For example, a bank robber’s 

forcing a bank teller from the bank into a 

getaway car would constitute an abduction. 

U.S.S.G. § 1B1.1, cmt. n.1(A) (2004). 

Applying the definition in the commentary, the district 

court found the defendant had forcibly moved the victim 

from the shoulder of the road into an adjoining cornfield, 

where he shoved her onto the ground, approximately 35 to 

40 feet from the spot where he had initially grabbed her by 

the open road. The district court ruled that this movement 

was sufficient to demonstrate by clear and convincing 

evidence that Scheu had forced the victim to accompany him 

to a different location and applied the four-level 

enhancement.

I.

For many years, the leading case on how courts should 

treat definitions, examples, and other information in the 

Guideline commentary has been Stinson v. United States, 

508 U.S. 36 (1993). Stinson concluded that the Sentencing 

Commission’s commentary in the Guidelines manual that 

interprets or explains a Guideline is binding and that courts 

must follow it unless it is plainly erroneous, inconsistent 

with the Guideline provision itself, or violates the 

Constitution. Id. at 47. In reaching this conclusion, the 

Court considered various analogies to other legal areas and 

ultimately concluded that, although “not precise,” the 

Guideline commentary was much like an agency’s 

interpretation of its own legislative rule (and not like an 

agency’s construction of a federal statute that it 

administers). Id. at 43‒45. 
USA V. SCHEU 7

Twenty-six years after Stinson, the Supreme Court 

decided Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which 

addressed the proper deference to an agency’s interpretation 

of its regulations (in that case, the Board of Veterans’ 

Appeals interpretation of an agency rule in a particular 

decision). Kisor reaffirmed the existence of, but limited the 

scope of, “Auer / Seminole Rock deference”; the Court 

explained that “the possibility of deference can arise only if 

a regulation is genuinely ambiguous” and a court has 

exhausted all the “traditional tools of construction.” Id. at 

2414‒15 (citation omitted); see Auer v. Robbins, 519 U.S. 

452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 

410 (1945).

Since Kisor was decided, a circuit split has arisen over 

whether this more limited deference should apply to the 

Sentencing Guidelines commentary and application notes. 

Compare United States v. Moses, 23 F.4th 347, 351‒58 (4th 

Cir. 2022), cert. denied, 143 S. Ct. 640 (Jan. 9, 2023) (setting 

forth reasons why Kisor did not apply to the Guidelines, and 

continuing to apply Stinson), with United States v. Riccardi, 

989 F.3d 476, 484‒85 (6th Cir. 2021) (applying Kisor to the 

Guidelines and concluding that a court may defer to 

commentary only if Guideline is ambiguous).

Our court recently weighed in on the debate and agreed 

that the “more demanding deference standard articulated in 

Kisor applies to the Guidelines’ commentary.” United 

States v. Castillo, 69 F.4th 648, 655 (9th Cir. 2023). As we 

explained:

Kisor directly examined and narrowed 

Seminole Rock and Auer deference in the 

context of an administrative agency’s 

interpretation of its own regulation, noting 
8 USA V. SCHEU

that such deference is not permitted without 

first finding the regulation ambiguous. 

Stinson deference is directly grounded in 

Seminole Rock and Auer deference. . . . 

Therefore, to follow Stinson’s instruction to 

treat the commentary like an agency’s 

interpretation of its own rule, we must apply 

Kisor’s clarification of Auer deference to 

Stinson. 

Id. at 655‒56 (internal quotations and citations 

omitted).

In any event, the result in this case is unaffected by this 

change in analysis. As discussed below, we would reach the 

same conclusion in this case whether we evaluate the plain 

meaning of the term “abducted” as it appears in the 

Guideline itself, or whether we consider “abducted” to be 

ambiguous and look to the commentary’s definition. 

II.

We apply “the traditional rules of statutory construction 

when interpreting the sentencing guidelines.” United States 

v. Flores, 729 F.3d 910, 914 n.2 (9th Cir. 2013). “Our 

interpretation will most often begin and end with the text and 

structure of the guidelines provisions themselves.” United 

States v. Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019)

(citation and internal quotation marks omitted). 

Here, the Guideline itself simply provides that “[i]f the 

victim was abducted, increase by 4 levels.” U.S.S.G. 

§ 2A3.1(b)(5). The word “abduct” derives from the Latin 

“‘abduco’ to lead away.” Humphrey v. Pope, 54 P. 847, 848 

(Cal 1898). Contemporary dictionary definitions define 

“abduct” as “to seize and take away (a person) by force,” 
USA V. SCHEU 9 

 

Merriam Webster Online (2023), https://www.merriamwebster.com/dictionary/abduct [https://perma.cc/32EULC8Y], “to carry off by force,” The American Heritage 

Dictionary (2d Coll. Ed. 1991), and “[t]o take (a person) 

away by force or deception,” The Oxford English Dictionary 

Online (2023), https://www.oed.com/view/Entry/212

[https://perma.cc/KJ3L-Z3KX]. Black’s Law Dictionary

similarly defines abduct(ion) as “[t]he act of leading 

someone away by force or fraudulent persuasion.” (9th Ed. 

2009). Scheu argues that “abducted” requires a “substantial 

leading away” and is “akin to protracted custody, captivity, 

or significant isolation.” 

The plain meaning of “abducted” is not difficult to 

discern, and the facts of this case would constitute an 

abduction under any of these definitions. The defendant 

encountered, chased, and caught the victim by the side of the 

open road, and then forced her to accompany him 35 to 40 

feet into a nearby cornfield, where the corn was 

approximately two-and-a-half feet high; he then pushed her 

down onto the ground so they could not be seen by passing 

vehicles, ordered her not to scream or cry so no one would 

come to her aid, and raped her. It can easily be said that the 

defendant seized the victim and led her away by force, 

significantly isolating her and holding her in his custody and 

captivity while he perpetrated the crime. 

We note that this interpretation is also consistent with the 

structure and use of “abducted” as an enhancement in other 

Guidelines provisions, such as U.S.S.G. § 2B3.1 (robbery)

and § 2B3.2 (extortion by force or threat). In these 

Guidelines, there is lesser, two-level enhancement if the 

victim was “physically restrained” and a separate, four-level 

enhancement if the victim was abducted. Unlike abduction, 

physical restraint does not require any movement of the 
10 USA V. SCHEU

victim and applies if the victim is simply restrained in place. 

See, e.g., United States v. Thompson, 109 F.3d 639, 641 (9th 

Cir. 1997) (noting examples such as being tied, bound, or 

locked up). Applying the abduction enhancement in this case 

is also completely consistent with the underlying purpose of 

the enhancement in the sexual assault guideline. As the 

Eighth Circuit has noted: “Abduction increases the gravity 

of sexual assault or other crimes because the perpetrator’s 

ability to isolate the victim increases the likelihood that the 

victim will be harmed.” United States v. Saknikent, 30 F.3d 

1012, 1013 (8th Cir. 1994). 

Employing these “traditional tools of construction,” 

Kisor, 139 S. Ct. at 2415 (citation and internal quotation 

marks omitted), we conclude that the text of § 2A3.1(b)(5) 

is not ambiguous and that the district court correctly applied 

the abduction enhancement in this case.

III.

Because § 2A3.1(b)(5) is not ambiguous, “we are not 

permitted under Kisor to defer to the Commission’s 

commentary.” Castillo, 69 F.4th at 658. However, we 

recognize that the commentary reflects the Commission’s 

“experience and informed judgment,” and we may weigh it 

according to its “power to persuade.” Hernandez v. 

Garland, 38 F.4th 785, 789, 792 (9th Cir. 2022) (first 

quoting Orellana v. Barr, 967 F.3d 927, 934 (9th Cir. 2020); 

and then quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 

(1944)). The commentary defines “abducted” as “forced to 

accompany an offender to a different location.” U.S.S.G. 

§ 1B1.1, cmt. n.1(A) (2004); see United States v. Jordan, 

256 F.3d 922, 933 (9th Cir. 2001) (interpreting U.S.S.G. 

§ 2B3.1(b)(4) and applying this definition of “abducted”). 

This commentary provision does not conflict with or 
USA V. SCHEU 11

 

impermissibly expand the text of U.S.S.G. § 2A3.1(b)(5) but

seeks to clarify the meaning of the term as used in this (and

several other) Guidelines. The relevant commentary to 

§§ 2A3.1(b)(5) & 1B1.1 is particularly authoritative because 

it has remained substantively unchanged since the initial 

Sentencing Guidelines were adopted in 1987, and those 

Guidelines went through public notice-and-comment. 2

This circuit has not yet had an occasion to consider what 

constitutes a “different location” when applying this 

commentary definition to the sexual assault 

Guideline. Although Scheu argues for an interpretation that 

requires a “substantial change in place” and argues that the 

approximately 35 to 40 feet of movement here was 

insufficient, there is no requirement of “substantial” 

movement in the Guideline or the commentary’s definition, 

and we will not read requirements into a Guideline that do 

not appear in its text. See Whitfield v. United States, 574 

U.S. 265, 269 (2015); United States v. Gonzalez, 262 F.3d 

867, 870 (9th Cir. 2001) (per curiam) (declining to read a 

2 See Sentencing Guidelines for U.S. Courts, 52 Fed. Reg. 44,674, 

44,681, 44,685 (Nov. 20, 1987); U.S.S.G. § 2A3.1(b)(5) & app. n.1 

(1987); id. § 1B1.1, cmt. n.1(a) (1987); see also Kisor, 139 S. Ct. at 2416 

(“[W]e have deferred to ‘official staff memoranda’ that were ‘published 

in the Federal Register . . . .’” (quoting Ford Motor Credit Co. v. 

Milhollin, 444 U.S. 555, 566 n.9, 567 n.10 (1980))); Skidmore, 323 U.S. 

at 140 (explaining that the weight we may accord to agency guidance 

“depend[s] upon the thoroughness evident in its consideration, the 

validity of its reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power to persuade, 

if lacking power to control.”); see generally United States v. Dupree, 57 

F.4th 1269, 1280 (11th Cir. 2023) (en banc) (Pryor, J., concurring) 

(explaining that “Guidelines commentary ordinarily goes through the 

same notice-and-comment and congressional review procedures as 

substantive guidelines revisions”).
12 USA V. SCHEU

scienter requirement into a Guideline “because the plain 

language of the guideline does not require” knowledge). 

Numerous other circuits have examined this aspect of the 

commentary’s definition in a variety of fact patterns; in 

reviewing them, it becomes apparent that it is the qualitative

change in location that is of more significance than the 

distance traveled. Thus, for example, moving from indoors 

to outdoors (or vice versa) has been considered a “different 

location,” even if only a few feet have been traversed. See 

United States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2002)

(defendant forced bank employee approximately 65 feet 

from building into parking lot, but not all the way to getaway 

vehicle); United States v. Davis, 48 F.3d 277, 278‒79 (7th 

Cir. 1993) (defendant forced employee from parking lot into 

credit union); United States v. Kills in Water, 293 F.3d 432, 

434 (8th Cir. 2002) (defendant “picked up,” “dragged,” and 

“lifted” victim inside abandoned trailer after she willingly 

accompanied him to the trailer’s vicinity). 

But the definition has not been applied “mechanically 

based on the presence or absence of doorways, lot lines, 

thresholds, and the like,” and thus movement at gunpoint 40 

to 50 feet between vehicles in the same parking lot has also 

been held sufficient to support the enhancement, even 

though no technical property line was crossed. United States 

v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996) (per 

curiam).3 As that court explained: 

The victims were accosted at one “location,” 

near the pickup truck, then were dragged and 

3 We note there does appear to be tension among the circuits as to 

whether movement of a victim within a single building can constitute a 

“different location” within the meaning of the commentary’s 
USA V. SCHEU 13

 

forced at gunpoint some 40 to 50 feet to 

another “location,” at the van. We are 

satisfied that it would be unduly legalistic, 

even punctilious, of us to say that those were 

not separate “locations” for purposes of the 

guidelines’ definition of “abduction,” or that 

something as coincidental and insignificant 

as a lot line or doorway could make or break 

the determination of “different location.” 

The district court did not commit reversible 

error in concluding, under the instant set of 

facts, that an abduction occurred. 

Id.

In United States v. Hefferon, the Fifth Circuit confronted 

a factual scenario somewhat similar to what we confront 

today. 314 F.3d 211, 215 (5th Cir. 2002). The defendant 

encountered the seven-year-old victim in an outdoor area on 

an Air Force base’s temporary lodging facility. Id. He 

initially sexually assaulted her near some trees by a 

playground; when her brother and sister approached, he 

moved with the victim to an area behind some garbage 

dumpsters and continued the assault. The court concluded 

that this move was sufficient to constitute a “different 

definition. Compare, e.g., United States v. Wells, 38 F.4th 1246, 1262, 

1264 (11th Cir. 2022) (holding that forcibly dragging a victim from the 

precipice of the front door as she was leaving the house into a back 

bedroom where sexual assault occurred constituted more than “trivial 

movement”) with United States v. Hill, 963 F.3d 528, 530‒31 (6th Cir. 

2020) (concluding that forcing customers from a cell phone store sales 

floor into a back room is not movement to a “different location” from the 

store itself). As we are not confronted with a situation involving 

movement within a building, we express no opinion on the reasoning in 

these cases. 
14 USA V. SCHEU

location” even though the trees and garbage repository were 

both located on the lodging facility’s property. Id. at 

225. Although the court did not estimate the distance 

between the two areas, it appears that the trees and 

dumpsters were relatively close together, but the dumpsters 

were more isolated and allowed the defendant to hide the 

victim from the view of her family. Id. at 215. 

So too here, the cornfield was a qualitatively different 

location than the (much more visible) side of the road, and 

the defendant forced the victim to accompany him to this 

location. The commentary’s definition of “abducted” thus 

confirms that the district court properly applied the 

enhancement. 

CONCLUSION

Whether we look only at the text of § 2A3.1(b)(5) or 

consult the definition of “abduct” provided in the 

Guidelines’ commentary, § 1B1.1, cmt. n.1(A), we have no 

difficulty concluding that the victim in this case was indeed 

“abducted” when the defendant forced her from the roadside 

where he encountered her into a nearby cornfield to 

perpetrate the sexual assault. The district court did not abuse 

its discretion by applying the four-level enhancement.

AFFIRMED.