PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PADDY PLATERO, Defendant - Appellant. No. 19-2193

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-01819-MV-1)

________________ _________________ Mallory Gagan, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Appellant. Nicholas J. Marshall, Assistant United Stat es Attorney (C. Paig e Messec, Assistant United States Attorney, John C. Anderson, United States Attorney, with him on the brief), Office of the United States Attorney , Albuquerque, New Mexico, for Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, MURPHY , and HARTZ , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Defendant Paddy Platero pleaded guilty to a charge of “[a]busive sexual contact” with a child under 12 in I ndian country. 18 U.S.C. § 2244; see id. § 1153 (offenses in Indian country); id. § 2246(3) (definition of sexual contact ). In FILED United States Court of Appeals Tenth Circuit 

### May 6, 2021 Christopher M. Wolpert Clerk of Court2 computing Defendant’s guideline sent encing range, the United States District Court for the District of New Mexico increased his base offense level on the ground that “the offense involved conduc t described in 18 U.S.C. § 2241(a) or (b).” USSG § 2A3.4(a)(1). 1 Defendant reads the guideline as requiring a violation of § 2241(a) or (b). Section 2241, however, defines th e offense of aggravat ed sexual abuse, not the lesser offense of abus ive sexual contact of which Defendant was convicted. Defendant therefore appeals his sentence, contending that his base offense level should not have been increased. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We reject Defendant’s reading of § 2A3. 4(a)(1). In context, the only reasonable interpretation of the guideline is that the reference to “conduct descri bed in 18 U.S.C. § 2241(a) or (b)” is a reference to th e conduct described in § 2241 th at distinguishes aggravated sexual abuse, which is governed by that sec tion, from sexual abuse in general, which is governed by § 2242. (We will refer to the conduct that disti nguishes one form of sexual abuse from another as the “means” by which the sexual abuse is committed.) Defendant’s interpretation of USSG § 2A3.4(a)(1) must be avoided because it would eliminate any possible application of th e provision, rendering it useless; and our interpretation finds support in both the hi story of § 2A3.4(a)(1) and the statutory scheme, which sets pena lties for the various t ypes of abusive sexual contact set forth

1 Unless otherwise indicated , all references in this opi nion to sentencing guidelines are to those in the 2018 Guidelines Manual, be cause it is the version in effect when Defendant was sentenced. See USSG § 1B1.11(a).3 in § 2244 by reference to the conduct that distinguishes from one another the various types of sexual abuse prohibited by §§ 2241, 2242, and 2243—that is, by reference to the various means employed to commit sexual abuse.
I. BACKGROUND On December 22, 2014, Defendant was helping to watch two stepgranddaughters—Jane Doe (age 11) and L.D. (13)—at his wife’s home in New Mexico. While Jane Doe was sitting in a chair in the liv ing room, Defendant grabbed her feet and used them to rub his erect pe nis through his clothes. Jane Doe videoed this event on her phone, during which she can be heard to say “s top, stop, stop.” R., Vol. 3 at 202. Jane Doe and L.D. described the incide nt to their mother, who reported it to police. Defendant was indicted on one count of knowingly engaging in and causing sexual contact with a child under 12. He pleaded guilty to the charge. The presentence investigation report ( PSR) prepared by the probation office calculated Defendant’s guidelin e sentencing range using USSG § 2A3.4. It set the base offense level at 20 u nder § 2A3.4(a)(1) because “force was involved in the offense.” R., Vol. 3 at 197. The PSR expl ained, “The offense involved the defendant grabbing Jane Doe’s legs a nd then feet and forcibly ru bbing her feet against his penis,” and “The video shows him pulling and manipulating her legs and feet.” Id. After applying various adjustments to th e base offense leve l, the PSR assigned Defendant a total offense level of 28. Ba sed on this offense level and Defendant’s criminal history, the guideline im prisonment range was 78 to 97 months.4 At the sentencing hearing the district court accepted the PSR’s factual findings and its calculation of the guideline range. Defendant did not object. The court imposed a sentence of 97 months in prison.
II. DISCUSSION Defendant argues that the district court committed reversible error by misapplying USSG § 2A3.4(a)(1) at sentenci ng. “Because [Defendant] did not object in the district court, we review his argument under th e plain-error standard.” United
States v. Ramon , 958 F.3d 919, 920 ( 10th Cir. 2020). We ca n reverse under that standard only if we determine that there is “(1) an error, (2) that is plain, which means clear or obvious under current law, . . . (3) that affects subs tantial rights,” and (4) that “seriously affects the fairness, integrity, or pub lic reputation of judicial proceedings.” Id. at 921 (internal quotation marks omitted). As we proceed to explain, we disagree with De fendant that the district c ourt erred, and we therefore affirm his sentence without r eaching the other three elements of the plain-error test. We begin by describing the statutory scheme under which this prosecution arose. Chapter 109A of the federal criminal code is en titled “Sexual Abuse.” Three sections—18 U.S.C. §§ 2241, 2242, and 2243 —set forth sexual-abuse offenses. Each requires engaging in a “sexual act” 2 or attempting or intending to do so. Id. They

2 “[T]he term ‘sexual act’ means—(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however sligh t; (B) contact between the mouth and the penis, the mouth and the vulva, or the mo uth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliat e, harass, degrade, or arouse or gratify5 differ in other elements—nam ely, the means employed to accomplish the sexual act. For example, the first sec tion of the chapter states: § 2241. Aggravated sexual abuse (a) B Y F ORCE OR T HREAT .—Whoever . . . knowingly causes another person to engage in a sexual act— (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, seri ous bodily injury , or ki dnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both. (b) B Y O THER M EANS .—Whoever . . . knowingly— (1) renders another person unconsci ous and thereby engages in a sexual act with that other person; or (2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby–– (A) substantially impairs the ab ility of that other person to appraise or control conduct; and (B) engages in a sexual act with that other person; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both. 18 U.S.C. § 2241 (italics added). Section 2241(c) prohibits engaging in a sexual act with a child under the age of 12 or (if th e offense would otherwise have violated § 2241(a) or (b)) with a child between the ag es of 12 and 16. Similarly, the lesser offense of sexual abuse is committed by causing another pe rson to engage in a sexual act through a less serious th reat or by engaging in a se xual act with an already

the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another pers on 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.” 18 U.S.C. § 2246(2).6 impaired person. See id. § 2242. 3 And sexual abuse of a minor or a ward includes engaging in a sexual act with a ch ild between the ages of 12 and 16, see id. § 2243(a), and engaging in a sexua l act with someone in custody, see id. § 2243(b). 4

3 Section 2242 states: § 2242. Sexual abuse Whoever, . . . knowingly— (1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or (2) engages in a sexual act with a nother person if that other person is— (A) incapable of appraising the nature of the conduct; or (B) physically incapable of d eclining participation in, or communicating unwillingness to e ngage in, that sexual act; or attempts to do so, shall be fine d under this title and imprisoned for any term of years or for life.

4 Section 2243 states: § 2243. Sexual abuse of a minor or ward (a) O F A M INOR .—Whoever, . . . knowingly engages in a sexual act with another person who— (1) has attained the ag e of 12 years but has not attained the age of 16 years; and (2) is at least four years younge r than the person so engaging; or attempts to do so, shall be fi ned under this title , imprisoned not more than 15 years, or both. (b) O F A W ARD .—Whoever, . . . knowingl y engages in a sexual act with another person who is— (1) in official detention; and (2) under the custodial, supervisory, or disciplinary authority of the person so engaging; or attempts to do so, shall be fi ned under this title , imprisoned not more than 15 years, or both.7 Defendant’s crime was a violation of § 2244, entitled “Abusive sexual contact,” which is committed by engaging in or causing nonconsensual “sexual
contact” 5 with or by another person. The sever ity of the penalty depends on what the offense would have been “had the sexual contact been a sexual act.” Id. § 2244. For example, if the offense would have violated § 2241(a) or (b) “had the sexual contact been a sexual act,” the offender could be sentenced to up to 10 years in prison, id. § 2244(a)(1); if the offense would have violated § 2242, the maximum sentence is three years’ imprisonment, see id. § 2244(a)(2); and if th e offense would have violated § 2243(a) or (b), the maximu m sentence is two years’ imprisonment, see id. § 2244(a)(3)–(4). Defendant was convicted of a violation of § 2244(a)(5), which sets a maximum sentence of life if the offense would have viol ated § 2241(c) (engaging in a sexual act with a child under the age of 12). The applicable guideline for convicti ons under §§ 2241 and 2242 is USSG § 2A3.1; the applicable guidelines for § 2243(a) and (b) are §§ 2A3.2 and 2A3.3 respectively; and the appli cable guideline for Defendant’s conviction under § 2244 is § 2A3.4, entitled, “Abusive Sexual Contact or Attempt to Commit Abusive Sexual
Contact.” See USSG App. A at 569. Guidelin e § 2A3.4, which sets the offense levels for abusive sexual contact, mimics 18 U.S.C. § 2244, which sets the maximum

5 “[T]he term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the ge nitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliat e, harass, degrade, or arouse or gratify the sexual desire of any person. ” 18 U.S.C. § 2246(3).8 penalties for abusive sexual contact, by cross- referencing the sexual-abuse statutes in the Criminal Code. The relevant part of the guideline states: (a) Base Offense Level: (1) 20 , if the offense involved conduc t described in 18 U.S.C. § 2241(a) or (b) ; (2) 16 , if the offense involved conduct described in 18 U.S.C. § 2242 ; or (3) 12 , otherwise. (b) Specific Offense Characteristics (1) If the victim had not attained th e age of twelve years, increase by 4 levels; but if the resulting offense level is less than 22 , increase to level 22

. (2) If the base offense level is de termined under subsection (a)(1) or (2), and the victim had attained the age of twelve years but had not attained the age of sixteen years, increase by 2 levels.

. . . (c) Cross References (1) If the offense invo lved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply [USSG] § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Crim inal Sexual Abuse). § 2A3.4 (emphasis added). Application Note 2 to the guideline explai ns that the meaning of the phrase conduct described in 18 U.S.C. § 2241(a) or (b) in § 2A3.4(a)(1) is simply the means required for sexual abuse to be p unishable by § 2241(a ) or (b). The note, tracking the language of § 2 241(a) and (b), states: For purposes of subsection (a)(1), “ conduct described in 18 U.S.C. § 2241(a) or (b) ” is engaging in, or causing sexual contact with, or by another person by: (A) using force agai nst the victim; (B) threatening or placing the victim in fear that any person will be subj ected to death, serious bodily injury, or kidnap ping; (C) rendering the victim unconscious; or (D) administering by force or threat of force, or without the knowledge or permission of the vi ctim, a drug, intoxicant, or other similar substance and thereby substa ntially impairing the ability of the victim to appraise or control conduct.9 § 2A3.4 cmt. n.2. There is no dispute that Defendant’s base o ffense level of 20 was correctly calculated under the note. Defendant argues, however, that the a pplication note is i nvalid because it contradicts the guideline itself . His argument proceeds as follows. To begin with, he notes that § 2241(a), in rele vant part, criminalizes “c aus[ing] another person to engage in a sexual act . . . by using force against th at other person.” 18 U.S.C. § 2241(a) (emphasis added). He disti nguishes § 2241(a)—and its requirement of a “sexual act”—from his own offense of conviction, which requires only “sexual
contact.” Id. § 2244(a)(5). He points out that sexual act and sexual contact are defined differently in Chapter 109A, see id. § 2246(2)–(3); and he observes that although his offense conduct i nvolved sexual contact, it di d not involve a sexual act. Therefore, he continues, his offens e did not “involve[] conduct described in 18 U.S.C. § 2241(a).” USSG § 2A3.4(a)(1). In short, he reads “the offense involved conduct described in 18 U.S.C. § 2241(a) or (b)” to mean “the offense constituted a violation of 18 U.S.C. § 2241(a) or (b).” Defendant acknowledges that Application Note 2 says that for the purposes of § 2A3.4(a)(1), “conduct descri bed in 18 U.S.C. § 2241(a) . . . is engaging in, or causing sexual contact with, or by another person by . . . (A) using force against the victim . . . .” USSG § 2A3.4 cmt. n.2 (emphasis added) (int ernal quotation marks omitted). But he contends that an app lication note cannot override the unambiguous text of a guideline and that USSG § 2A3. 4(a)(1) is unambiguous. The note, he argues, is therefore “invalid,” because “commentary that effe ctively changes the10 definition of the applicable statute cannot . . . be authoritative.” Aplt. Br. at 6; see Stinson v. United States , 508 U.S. 36, 45 (1993) (c ourt should give guideline commentary “controlling weight” unless it “violate[s] the Constitution or a federal statute, . . . [or] it is plai nly erroneous or inconsistent with the [guideline]” (internal quotation marks omitted)); United States v. Keck , 643 F.3d 789, 80 0 (10th Cir. 2011) (“[A]lthough the intent of the Sentenci ng Commission is demonstrated in part through its commentary, a district court is not obliged to fo llow the explanatory application if it is inconsiste nt with the Guidelines.” (o riginal brackets and internal quotation marks omitted)). Defendant concludes that the district court erred when it calculated his guideline range using the base offense leve l found in § 2A3.4(a)(1). We do not dispute Defenda nt’s contention that commentary to a guideline cannot override the unambiguous text. Where we differ fr om Defendant is that we reject his interpretation of th e guideline text. In the ab stract—that is, taken out of context—Defendant’s interpretation of the guideline is a plausible one, perhaps even the most natural one. But that interpretation has a fa tal flaw: under Defendant’s interpretation, § 2A3.4(a)(1) would never apply. Section 2244 is the only Chapter 109A offense for which § 2A3. 4 is the applicable guideline, 6 see USSG App. A, and

6 When the misconduct is similar to a vi olation of § 2244, a court may use § 2A3.4 as the applicable guidelin e for violations of 18 U. S.C. § 37 (“Violence at international airports”) or 18 U.S.C. § 113(a)(2) (“Assaults w ithin maritime and territorial jurisdiction”). See USSG App. A at 554 (Introduction), 558; id. § 1B1.2 cmt. n.1.11 a violation of § 2244 requires onl y sexual contact, not the sexual act that Defendant argues is required for applicat ion of § 2A3.4(a)(1). One might surmise that § 2A3.4(a)(1) could apply to a defendant convicted under § 2244 if the defendant’s relevant conduct had included a viola tion of § 2241.
See USSG § 1B1.1 cmt. n.1(I) (defining offense for purposes of the guidelines as “the offense of conviction and all relevant conduct”); id. § 1B1.3 (defining Relevant Conduct ). For example, the se ntencing judge might determine that the defendant had in fact violated § 2241 even though the defendant had not been convicted of that offense (perhaps the defendant had never b een charged under § 2241, or perhaps such a charge had been dismissed as a result of an acquittal or a plea agreement). But in that event the text of § 2A 3.4 explicitly provides that the applicable guideline for computing the offense level for the se xual-contact conviction would be USSG § 2A3.1, not § 2A3.4. The “Cross Referen ces” provision in § 2A3.4 states: “If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply § 2A3. 1.” USSG § 2A3.4(c)(1);

see United States v. Castillo , 981 F.3d 94, 102 (1st Cir. 2020) (“[T]he cross-reference properly can be utilized if the offense of conviction or a ny relevant conduct— meaning . . . acts committed during the co mmission of the offe nse of conviction— involved sexual abuse or an attempt to commit sexual abuse.” (internal quotation marks omitted)); United States v. No Neck , 472 F.3d 1048, 1052, 1055 (8th Cir. 2007) (although defendant charged with th ree counts of aggravated sexual abuse under § 2241 was convicted only of the le sser-included offenses of abusive sexual12 contact under § 2244, district court did not err in applying the § 2A3.4(c)(1) crossreference to compute defendant’s offense level for the three of fenses under § 2A3.1 rather than § 2A3.4 because there was sufficient evidence for the court to find by a preponderance of the eviden ce that the three offenses involved aggravated sexual abuse). Thus, if we were to interpret § 2A3.4( a)(1) as Defendant suggests, it could not apply even to relevant conduct. We therefore conclude that Defenda nt’s construction of the challenged guideline provision would render that provision a nullity. 7 We have studiously avoided interpretations of th e guidelines that render null even just a single word. See United States v. Collins , 313 F.3d 1251, 1254 (10th Ci r. 2002) (sentencing guideline “must not be interpreted such that . . . pa rt of the provision [i s rendered] a nullity”); see also Loughrin v. United States , 573 U.S. 351, 358 (2014) (recognizing “the cardinal principle of interpreta tion that courts must give e ffect, if possible, to every clause and word of a statute” (internal quotation marks omitted)). To render null an entire provision is unquesti onably a bridge too far. Is there, however, an a lternative reasonable interp retation of the guideline provision? We think so. The language to be construed is “t he offense involved conduct described in 18 U.S. C. § 2241(a) or (b).” U SSG § 2A3.4(a)(1). If the language were, “the offense involved the conduct described in 18 U.S.C. § 2241(a) or

7 Moreover, because Defenda nt’s interpretation means th at § 2A3.4(a)(1) and (2) would never apply, it would al so nullify § 2A3.4(b)(2), wh ich authorizes an offenselevel increase of 2 in limited circumstances if “the base offense level is determined under subsection (a)(1) or (2).”13 (b),” Defendant’s interpretation woul d be rather difficult to avoid. Cf., e.g. , United States v. Johnman , 948 F.3d 612, 618 (3d Cir. 2020) ( pointing to statute’s use of “the definite article ‘the’” in hol ding that “read naturally, ‘the assessment’ or ‘the special assessment’ in subsection (b) means th e total amount of ‘an assessment under subsection (a)’”). But omissi on of the definite article ma kes it eminently reasonable to interpret the phrase to refe r to some component, some subset, of the full conduct described in each provision. And there is one component that makes perfect sense as the ground on which to base the guideline offense level: the means by which the sexual abuse is accomplishe d. As discussed above , the means by which the perpetrator causes the other person to engage in a sexual act is what distinguishes each type of sexual abuse set forth in Chap ter 109A from the other types. And it is the means employed that determines what the maximum sentence is for abusive sexual contact as set forth in § 2244. By setting the gui deline offense level based on the means employed—increas ing the offense level wh en the means employed authorize a higher maximum sentence—Guide line § 2A3.4 reflects the judgment of Congress regarding the relativ e culpability of defendants who employ those means. We conclude that, in context, the best reading of “conduc t described in 18 U.S.C. § 2241(a) or (b)” is the means by which a perpetrato r commits aggravated sexual abuse described in § 2241(a) or (b)

. The history of the guideline language re inforces our reading. Before 2004, § 2A3.4(a)(1) applied “if the offense was committed by the means set forth in 18 U.S.C. § 2241(a) or (b).” USSG App. C, Vol. III at 22 (emphasis added). This14 earlier language referred (per haps more clearly than the present language) only to the provisions of § 2241 that distinguish a de fendant’s culpability based on how he or she obtained submission to the requisite sexual act—that is, by means of force, threats, etc. See, e.g. , United States v. Yates , 22 F.3d 981, 983, 985 n.4 (10th Cir. 1994) (defendant who pleaded guilty to abusive sexual-contact offense under § 2244(a)(1) properly senten ced using the higher base offense level found in § 2A3.4(a)(1) because of his “u se of force”). In other words, the use of force or threats was the “means” by which a perpetra tor compelled the “se xual act” proscribed in § 2241; the sexual act it self was not the “means.” See United States v. Breitweiser , 357 F.3d 1249, 1256 (11th Ci r. 2004) (affirming offens e-level enhancement under § 2A3.4 based on “f inding that the defendant committed the [violation of § 2244(a)(3)] by means of threat or fear.” (emphasis added)); United States v. Fulton , 987 F.2d 631, 632–33 (9th Cir. 1993) (defendant’s guideline offense level for sexualcontact offense in viola tion of § 2244(a)(3) was properly calculated under § 2A3.4(a)(1) because he used force in the commission of his offense and “[t]he means set forth in 18 U.S.C. § 2241(a) or (b) include the use of force against the victim”). So read, the earl ier language of § 2A3.4 is squarely in line with our interpretation of the current guideline. To be sure, the Sentencing Commission changed the “means set forth in” language to the current “involved conduct described in” formulation in November 2004. USSG App. C, Vol. III at 22. The fact of the change mi ght suggest that the Commission meant to change the substance or scope of the guideline as well. But the15 Commission’s notes explaining the N ovember 2004 amendment provide no indication that the change in language wa s meant to be substantive as opposed to stylistic. Id. at 58–63. More importantly, the application note adopted by the Sentencing Commission along with the amende d provisions is substantively identical to its predecessor. See id. at 23–24. We include the original language 8 and amended language 9 in footnotes for ready comparison. The only reasonable inference is that the drafters understood the amended langua ge to make no substantive change. Finally, we take comfort in the fact that the other circuit courts to have considered the issue before us have al so interpreted § 2A3. 4 as we do here. See United States v. Maldonado , 215 F. App’x 938, 941 (11t h Cir. 2007) (unpublished) (“[I]f the district court found that Maldonado has used force against the victim, it was required to apply the higher ba se offense level contained in § 2A3.4(a)(1), defined by

8 The replaced commentary language stated : “‘The means set forth in 18 U.S.C. § 2241(a) or (b)’ are: by using force agains t the victim; by threatening or placing the victim in fear that any pers on will be subjected to death, serious bodily injury, or kidnapping; by rendering the victim uncons cious; or by administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substa ntially impairing the ability of the victim to appraise or control c onduct.” USSG App. C, Vol. III at 24.

9 The new commentary language states: “Application of Subsection (a)(1).—For purposes of subsection (a)(1), ‘conduct desc ribed in 18 U.S.C. § 2241(a) or (b)’ is engaging in, or causing sexual contact with , or by another person by: (A) using force against the victim; (B) threatening or placi ng the victim in fear that any person will be subjected to death, serious bodily inju ry, or kidnapping; (C) rendering the victim unconscious; or (D) administ ering by force or threat of force, or without the knowledge or permission of the victim, a dr ug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct.” USSG § 2A3.4 n.2.16 reference to section 2241.”); United States v. Anderson , 494 F. App’x 658, 660 (7th Cir. 2012) (unpublished) (“[T]he [district] court could concl ude that the victim’s fear helped the defendant commit th e offense,” so “the applica tion of a base offense level of sixteen [was] not clear error.”). 10
We hold that the district court properly applied USSG § 2A3.4(a)(1) in sentencing Defendant.
III. CONCLUSION
We AFFIRM Defendant’s sentence.

10 The government cites United States v. Sharpfish , 408 F.3d 507 (8th Cir. 2005), as an additional example of a case that applie d § 2A3.4(a)(1) in a sentencing for forcible sexual contact. But the Sharpfish defendant pleaded guilty to a charge of aggravated sexual abuse (proscribed by § 2241), not abusive sexual contact (proscribed by § 2244). See id. at 509; Sharpfish Aplt. Br. at i; Sharpfish Aplee. Br. at 2. We conclude that it was a sc rivener’s error when the Sharpfish opinion states that the defendant’s “use of force le d to application of a base offense level of 20 under U.S.S.G. § 2A3.4(a)(1).” 408 F.3d at 510.