FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 27, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15556

Non-Argument Calendar

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D. C. Docket No. 08-14021-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK ALDRICH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 27, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

BARKETT, Circuit Judge:

Jack Aldrich appeals his 168-month sentence for using a computer to entice
a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). Aldrich

argues that the district court erred in applying a two-level enhancement at

sentencing under U.S.S.G. § 2G2.1(b)(2)(A) based on a finding that Aldrich’s

masturbating for a minor female in front of his web camera constituted a “sexual

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contact.” Aldrich also raises a due process argument based on the alleged

inaccuracy of the statement in his presentence investigation report (“PSI”) that

Aldrich was masturbating “in front of” a minor when in fact he was in front of his

web camera.

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Under U.S.S.G. § 2G2.1(b)(2)(A), a two-level increase applies to a

defendant’s base offense level if the base offense involves “the commission of a

sexual act or sexual contact.” A “sexual contact” is defined as “the intentional

touching . . . of the genitalia, anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person.” 18 U.S.C. § 2246(3) (emphasis added).

The district court applied the two-level enhancement based on its finding

that the plain meaning of the phrase “any person,” as used in the definition of

 In fact, the “minor” was an undercover officer posing as a fifteen year-old female. 1

 We “review a district court’s finding of fact for clear error and its application of the 2

Sentencing Guidelines de novo.” United States v. Rendon, 354 F.3d 1320, 1329 (11thCir.

2003). We also review “de novo questions of statutory interpretation.” United States v. Maupin,

520 F.3d 1304, 1306 (11th Cir. 2008).

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“sexual contact,” unambiguously referred to the touching of all people, including

Aldrich himself, and that therefore, contrary to Aldrich’s position, masturbation

constituted “sexual contact” for purposes of the enhancement. The district court

also rejected Aldrich’s argument – made for the first time at sentencing – that “any

person” could not include oneself, because it was not possible for Aldrich to

“harass” himself, one of the six potential motives of § 2246(3). Aldrich argued

that an individual must be able to perform all six prohibited acts under the statute

in order to violate it. Finally, the district court rejected Aldrich’s argument that the

rule of lenity should apply in his favor, because the statute was ambiguous and

there was no controlling precedent. U.S. v. Santos, __ U.S. __, 128 S.Ct. 2020,

2025 (2008). Aldrich reiterates his arguments on appeal, and we address each

below.

The Supreme Court has held that the “starting point” of statutory

interpretation is “the language of the statute itself.” Randall v. Loftsgaarden, 478

U.S. 647, 656 (1986). The “cardinal canon” of statutory interpretation is that

“courts must presume that a legislature says in a statute what it means and means

in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992). Finally, statutes should be construed so that “no clause, sentence,

or word shall be superfluous, void, or insignificant. U.S. v. Ballinger, 395 F.3d

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1218, 1236 (11th Cir. 2005) (quotations and citations omitted).

Based on our review of the record and the relevant law, we conclude as the

district court did that the plain meaning of “sexual contact” under U.S.S.G.

§ 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating. The

statute’s operative phrase “any person” applies to all persons, including Aldrich

himself. We come to this conclusion based on our observation that § 2246(2)(D)

defines a “sexual act” as the “intentional touching, not through the clothing, of the

genitalia of another person who has not attained the age of 16 years with an intent

to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person.” (emphases added). We believe that § 2246(2)(D) clearly indicates that

Congress used the phrase “any person” when it meant to include the offender

himself, as well as another individual, and the phrase “another person” when it

meant to exclude the offender. Therefore, the use of the phrase “any person” in the

§ 2246(3) definition of “sexual contact” demonstrates Congress’s intent to include

masturbation among the acts to which the definition and the § 2G2.1(b)(2)(A)

enhancement was meant to apply.

We also reject Aldrich’s argument that because one cannot “harass” oneself,

the definition of “sexual contact” must not include masturbation. Section 2246(3)

uses the conjunction “or” instead of “and” in its list of potential motives; therefore

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a defendant need only intend to “abuse, humiliate, harass, degrade, or arouse or

gratify” in order to violate the statute. Id. (emphasis added). That Aldrich could

not do one of these things is immaterial so long as he could do another.

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Finally, we find no merit to Aldrich’s due process argument, because the PSI

did not contain invalid factual premises that infringed on Aldrich’s constitutional

rights. Compare U.S. v. Stephens, 699 F.2d 534, 537 (11th Cir. 1983). There is no

constitutionally significant difference between masturbating in front of a minor in

person versus doing so via web camera, and we see no other indication that Aldrich

lacked proper notice of the sentence he faced. The judgment of the district court is

AFFIRMED.

 Because we have held that the statute is unambiguous, the rule of lenity does not apply,

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and we therefore reject Aldrich’s argument on that issue.

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