* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 1/13/97 FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. HOUSTON WISE TALAMASEY,

Defendant-Appellant. No. 96-6166 (D.C. No. CR-96-22-R) (W.D. Okla.)

ORDER AND JUDGMENT *
Before TACHA, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Defendant Houston Wise Talamasey pled guilty to a c harge of engaging in sexual contact with a child under age twelve, in vi olation of 18 U.S.C. §§ 2241(c) and 2244(a)(1). He appeals from the dis trict court’s finding that he committed aggravated sexual abuse by “the penetrati on, however slight, of the . . . genital opening,” see 18 U.S.C. § 2246(2)(C), which led the district cou rt to calculate Talamasey’s sentence under the criminal s exual abuse guideline, U.S.S.G. § 2A3.1, instead of the abusive sexual contact guideline, U.S.S.G. § 2A3.4. We have jurisdiction under 28 U.S.C. § 12 91, and affirm. “We review the district court’s findings of fact un derlying a sentence for clear error and review de novo its interpretations of the Sentencing Guidelines.” United States v. Burdex , 100 F.3d 882, 884 (10th Cir. 1996). “We also rev iew for clear error the district court’s application of the Guidelines to the facts.” Id. Talamasey’s plea agreement specified that the sente ncing guideline for abusive sexual contact contained a cross-reference to aggravated sexual abuse of a child, see U.S.S.G. § 2A3.4(c)(1); that Talamasey could be se ntenced under this cross-reference as if he had pled guilty to aggravated sexual abuse of a child, except that he could not be sentenced to more than ten years’ imprisonment; that the government would present evidence that Talamase y was guilty of aggravated sexual abuse of a child; and that the government wo uld urge the sentencing court to apply the cross-reference. R. Vol. I, Doc. 15 at 5-6. At Talamasey’s plea-3-

hearing, the government reiterated that it would as k the court to sentence Talamasey under the cross-reference. R. Supp. Vol. I at 8. The court explained this further and asked Talamasey if he understood. Id. at 9. Talamasey said he did. Id. At sentencing, the district court found from the ev idence that there [were] some inconsistencies, certainly, in th e statements[;] however, we do know that there was a touching, ther e’s no question about that, the defendant has admitted that, and ad ditionally, consistently, this little girl has said that she wa s penetrated either by the man’s penis or by [sic] digitally, and I’m sati sfied from this testimony by a preponderance of the evidence that-- that she was penetrated, which constitutes sexual abuse. Under the statute, criminal sexual abuse is committed when there has b een penetration. R. Vol. II at 27-28. Based on our review of the re cord, this finding is not clearly
erroneous. Because Talamasey was warned that he could be sente nced under the criminal sexual abuse guideline according to the cr oss-reference in the abusive sexual contact guideline, and because the district court’s finding that Talamasey committed criminal sexual abuse is not clearly erro neous, we find no error in the district court’s application of the cross-reference
.-4-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.
Entered for the Court
David M. Ebel Circuit Judge