PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2271

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UNITED STATES OF AMERICA

v.

WILLIAM S. DAHL,

 Appellant

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On Appeal from the District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-14-cr-00382-001)

District Judge: Honorable Harvey Bartle, III

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Argued: June 8, 2016

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit 

Judges

(Filed: August 18, 2016)
2

Brett G. Sweitzer [ARGUED]

Federal Community Defender Office for the 

Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Bernadette A. McKeon [ARGUED]

Michelle Rotella

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION

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SCIRICA, Circuit Judge

William Dahl pleaded guilty to multiple offenses 

involving the use of interstate commerce to engage minors in 

sexual activities.1 Because Dahl had several prior Delaware 

 

1 Dahl was charged with and pleaded guilty to three counts of 

attempted use of an interstate commerce facility to entice a 

minor to engage in sexual conduct in violation of 18 U.S.C. § 

2422(b); one count of attempted enticement of a minor to 

travel in interstate commerce to engage in sexual activity, in 
3

convictions related to sexual activity with minors, the District 

Court sentenced him under the Repeat and Dangerous Sex 

Offender guideline, United States Sentencing Guideline 

§ 4B1.5, to the top-range sentence of 293 months in prison to 

be followed by 20 years of supervised release. Dahl argues 

for the first time on appeal that the District Court’s 

application of U.S.S.G. § 4B1.5 was plain error because his 

prior state convictions are not categorically “sex offense 

convictions” under the Guidelines. In light of recent Supreme 

Court rulings, we agree and will remand for resentencing.

I.

In 2013, Dahl placed several advertisements on 

Craigslist seeking sexual encounters with young males. Two 

undercover law-enforcement agents, acting independently, 

replied to the advertisements, representing themselves as 

fifteen-year-old boys. Through email communications over 

the next few weeks, Dahl engaged in graphic sexual 

conversations, requested photographs of the boys, and 

attempted to arrange in-person sexual encounters. One of the 

undercover agents eventually agreed to meet Dahl at his 

house, ostensibly for a sexual encounter. Dahl was arrested 

after the detective called off the meeting.

Dahl has several prior Delaware convictions related to 

sexual activity with minors. Of relevance here, in 1991 he 

was convicted of first- and third-degree unlawful sexual 

contact relating to encounters with two seventeen-year-old 

boys. And in 2001, Dahl was convicted of second-degree 

 

violation of 18 U.S.C. § 2422(a); and one count of transfer of 

obscene material to a minor, in violation of 18 U.S.C. § 1470.
4

unlawful sexual contact relating to an encounter with a 

fourteen-year-old boy in 1999.

Based on the application of U.S.S.G. § 2G1.3 (the 

prohibited sexual conduct guideline) and § 4A1.1 (the 

criminal history guideline), Dahl’s Guidelines range would 

have been 121–151 months’ imprisonment (Total Offense 

Level 29; Criminal History Category IV2), absent any 

sentencing enhancements. However, the probation officer 

recommended, and the District Court found, that Dahl’s prior 

state convictions were the equivalent of convictions for 

federal aggravated sexual abuse under 18 U.S.C. § 2241 (a 

Chapter 109A offense), and therefore “sex offense 

conviction” predicates under U.S.S.G. § 4B1.5. Accordingly, 

Dahl’s Total Offense Level was increased from 29 to 34,3and 

 

2 Based on Dahl’s Presentence Report, the District Court 

determined Dahl’s Total Offense Level of 29 and Criminal 

History Category of IV as follows:

Base Offense Level: 28

+2 (for enticement through the use of a 

computer under § 2G1.3(b)(3))

+2 (as a grouping adjustment for multiple 

counts under § 3D1.4)

-3 (for acceptance of responsibility under § 

3E1.1)

Criminal History Category: IV (based on nine criminal 

history points).

3 Although § 4B1.5 raised Dahl’s offense level to 37, this was 

reduced by three levels because Dahl accepted responsibility 

for his conduct.
5

his Criminal History Category was increased from IV to V, 

yielding a Guidelines range of 235–293 months’ 

imprisonment. The District Court found the high end of the 

range was appropriate and sentenced Dahl to 293 months’ 

imprisonment.

Dahl objected to the application of U.S.S.G. § 4B1.5, 

but on different grounds than he asserts on appeal. The issue 

of whether Dahl’s prior Delaware convictions were 

improperly categorized as “sex offense convictions” under 

federal law was therefore unpreserved. We review an 

unpreserved objection for plain error.4

II.

Dahl contends the District Court committed plain error 

by failing to apply the categorical approach in determining 

whether his Delaware first- and third-degree unlawful sexual 

contact convictions constitute federal sex offense convictions 

under the federal repeat offender statute, 18 U.S.C. § 

2426(b)(1)(B), and therefore subject Dahl to a heightened 

sentence under the career sexual offender guideline, § 4B1.5. 

The government responds that we should not apply the 

categorical approach, but should instead look to the actual 

 

4 We review whether a prior conviction qualifies a defendant 

for a recidivist sentencing enhancement de novo. United 

States v. Brown, 765 F.3d 185, 188 (3d Cir. 2014). When 

there was no objection below, the challenging party must also 

meet the requirements of the plain-error standard by 

demonstrating the error is clear, prejudicial, and affects the 

fairness or reputation of the judicial proceeding. United States 

v. Olano, 507 U.S. 725, 732 (1993).
6

conduct of conviction to determine whether it would 

constitute an offense under the federal statute. Specifically, it 

contends U.S.S.G. § 4B1.5 and 18 U.S.C. § 2426(b)(1)(B) 

require a factual approach because they refer to the requisite 

predicate offense in case-specific terms. Section 

2426(b)(1)(B) refers to “a conviction for an offense . . . 

consisting of conduct that would have been an offense” under 

certain federal statutes, and § 4B1.5 refers to a “sex offense 

conviction” as “any offense [under 18 U.S.C. § 

2426(b)(1)(B)], if the offense was perpetrated against a 

minor.” We disagree with the government. The District Court 

erred when it failed to apply the categorical approach. 

The Supreme Court has explained that to determine 

whether a defendant’s prior federal or state conviction 

qualifies as a predicate offense, sentencing courts must apply 

the categorical approach and “‘look only to the statutory 

definitions’—i.e., the elements—of a defendant’s prior 

offenses, and not ‘to the particular facts underlying those 

convictions.’” Descamps v. United States, 133 S. Ct. 2276, 

2283 (2013) (quoting Taylor v. United States, 495 U.S. 575, 

600 (1990)). If the statute of conviction has the same 

elements as the federal crime, then the prior conviction can 

serve as a predicate. “[S]o too if the statute defines the crime 

more narrowly, because anyone convicted under that law is 

‘necessarily . . . guilty of all the [generic crime’s] elements.’” 

Id. (quoting Taylor, 495 U.S. at 599). But if the relevant state 

or federal statute “sweeps more broadly than the generic 

crime, a conviction under that law cannot count as a[] . . . 

predicate, even if the defendant actually committed the offense 

in its generic form.” Id. (emphasis added). In other words, we 

look to the elements of the prior offense “to ascertain the least 

culpable conduct hypothetically necessary to sustain a 
7

conviction under the statute.” Hernandez-Cruz v. Att’y Gen., 

764 F.3d 281, 285 (3d Cir. 2014). The elements, not the facts, 

are key. Descamps, 133 S. Ct. at 2283.

In Johnson v. United States, 135 S. Ct. 2551 (2015), 

the Supreme Court explained that the “categorical approach” 

applies notwithstanding a predicate statute’s reference to 

conduct. The Court found the Armed Career Criminal Act’s 

(ACCA’s) residual clause void for vagueness because 

application of the categorical approach compelled courts to 

determine the unconstitutionally vague “ordinary case” of a 

predicate statute’s violation. Id. at 2557–58. But the Court 

upheld the use of the categorical approach generally, and 

rejected the argument by the government (and Justice Alito in 

dissent) that the “conduct” language of ACCA should trigger 

a factual approach. See id. at 2561–62 (“[T]he dissent urges 

us to save the residual clause from vagueness by interpreting 

it to refer to the risk posed by the particular conduct in which 

the defendant engaged . . . . In other words, the dissent 

suggests that we jettison for the residual clause (though not 

for the enumerated crimes) the categorical approach. . . . We 

decline the dissent’s invitation.”). The Johnson Court 

explained that the important textual reference for triggering 

the categorical approach is “conviction,” not “conduct.” Id. at 

2562 (“This emphasis on convictions indicates that ‘Congress 

intended the sentencing court to look only to the fact that the 

defendant had been convicted of crimes falling within certain 

categories, and not to the facts underlying the prior 

convictions.’” (quoting Taylor, 495 U.S. at 600)). 

In a recent decision, Mathis v. United States, 136 S. Ct. 

2243 (2016), the Court emphasized that a sentencing 

enhancement’s use of the phrase “conviction” indicates 
8

Congress’s intent to apply the categorical approach. 136 S. 

Ct. at 2252 (“By enhancing the sentence of a defendant who 

has three ‘previous convictions’ . . . rather than one who has 

thrice committed that crime—Congress indicated that the 

sentencer should ask only about whether ‘the defendant had 

been convicted of crimes falling within certain categories,’ 

and not about what the defendant had actually done.” 

(quoting Taylor, 495 U.S. at 600)).5

Johnson and Mathis looked at ACCA, 18 U.S.C. 

§ 924(e)(1)-(2)(B)(ii), whereas here we examine a part of the 

Code dealing with repeat sex offenders, 18 U.S.C. § 

2426(b)(1)(B). But the categorical approach is not unique to 

ACCA, Mathis, 136 S. Ct. at 2251 n.2, and both ACCA and 

the repeat offender statute use the terms “conduct” and 

“conviction” in a similar manner. 

ACCA’s residual clause’s description of a predicate 

conviction is:

[A] conviction[] for . . . any crime . . . that . . . involves 

 

5 The Supreme Court also noted in Mathis that allowing a 

sentencing judge to find facts other than “the simple fact of a 

prior conviction” would raise “serious Sixth Amendment 

concerns” because “only a jury, and not a judge, may find 

facts that increase a maximum penalty.” Mathis, 136 S. Ct. at 

2252 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 

(2000)). And further, “an elements-focus avoids unfairness to 

defendants” as “[s]tatements of ‘non-elemental fact’ in the 

records of prior convictions are prone to error precisely 

because their proof is unnecessary.” Id. at 2253 (quoting 

Descamps, 133 S. Ct. at 2288–89).
9

conduct that presents a serious potential risk of 

physical injury to another;

18 U.S.C. § 924(e) (emphasis added). 

The repeat offender statute’s description of a predicate 

conviction is: 

“[A] conviction for an offense . . . consisting of 

conduct that would have been an offense under a 

chapter referred to in paragraph (1) if the conduct had 

occurred within the special maritime and territorial 

jurisdiction of the United States. 

Id. § 2426(b)(1)(B) (emphasis added). The government’s 

contention that § 924(e)(2)(B)(ii) is “materially different” 

from § 2426(b)(1)(B) because it does not refer to “conduct” is 

misplaced. Furthermore, both statutes refer to “conviction”—

the textual trigger for application of the categorical approach. 

See Johnson, 135 S. Ct. at 2562.6

The government also contends that a factual inquiry, 

not a categorical approach, is required because the statute 

includes the qualifying language, “if the offense was 

perpetrated against a minor.” U.S.S.G. § 4B1.5 cmt. 3(A)(i). 

But as we held, and the Supreme Court affirmed, in Nijhawan 

 

6 Moreover, for the same reasons set forth in Mathis regarding 

the use of the categorical approach under ACCA, applying 

the categorical approach to § 4B1.5 avoids possible 

unfairness to defendants that would result from basing an 

increased penalty on something not legally necessary to a 

prior conviction. Mathis, 136 S. Ct. at 2253.
10

v. Attorney General, 523 F.3d 387 (3d Cir. 2008), aff’d, 

Nijhawan v. Holder, 557 U.S. 29 (2009), the factual inquiry 

triggered by qualifying language is limited to the facts 

relevant to the qualification itself. The categorical approach 

continues to apply to the rest of the statute’s non-qualifying 

elements.

The issue in Nijhawan v. Holder was whether, and to 

what extent, the categorical approach should be applied to the 

loss amount under 8 U.S.C. § 1101(a)(43)(M)(i), which 

makes an alien removable if he was previously “convicted of . 

. . an offense that involves fraud or deceit in which the loss to 

the victim or victims exceeds $10,000.” See 8 U.S.C 

§ 1227(a)(2)(A)(iii). We concluded the loss amount was not 

an element of the crime, which would require a jury to 

“actually convict[] [the] defendant of a loss in excess of 

$10,000” to be subject to removal under §§ 1101(a)(43)(M)(i) 

and 1227(a)(2)(A)(iii). Nijhawan, 523 F.3d at 392. Rather, it 

was a “qualifier” because it was prefaced with the language 

“in which”—“‘express[ing] such a specificity of fact that it 

almost begs an adjudicator to examine the facts at issue.’” Id.

at 393 (quoting Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 

2004)). A holding to the contrary “would essentially gut 

every deportability standard containing the ‘in which’ or 

other analogous qualifying language.” Id. at 391. Because it 

was not an element, we found it proper to depart from the 

formal categorical approach, and look “‘into the facts . . . at 

issue.’” Id. at 393 (quoting Singh, 383 F.3d at 161). But we 

did not abandon the categorical approach in analyzing the rest 

of the statute. Id. at 396 (“[N]either we nor [other circuit 

courts] have abandoned the . . . [categorical] approach. 

Indeed, we still resort to it in the initial phase of our analysis 

because [the underlying statute] instructs us to decide whether 
11

the alien has been convicted of a crime involving fraud or 

deceit.”). 

The Supreme Court affirmed. It held that the $10,000 

threshold is not an element of the crime, but refers to the 

factual circumstances surrounding commission of the crime. 

As the Court explained, the “monetary threshold applies to 

the specific circumstances surrounding an offender’s 

commission of a fraud and deceit crime on a specific 

occasion.” 557 U.S. at 40. But the Court cautioned that the 

categorical approach should still be applied to the generic 

elements of the statute. See, e.g., id. at 38 (“The . . . 

‘aggravated felony’ statute, unlike ACCA, contains some 

language that refers to generic crimes and some language that 

almost certainly refers to the specific circumstances in which 

a crime was committed. The question before us then is to 

which category subparagraph (M)(i) belongs.”); id. at 40 

(“We conclude that Congress did not intend subparagraph 

(M)(i)’s monetary threshold to be applied categorically . . . 

.”).

The government contends, and Dahl does not contest, 

that the “perpetrated against a minor” provision “is not an 

element of many of the crimes described in 18 U.S.C. 

§ 2426(b)(1)(A) or (B).” Br. Appellee 15. We agree, but 

Nijhawan dictates that although we delve into the facts to 

determine whether the victim was a minor, we continue to 

apply the categorical approach to the underlying elements of 

the predicate offense. 

Our holding in United States v. Pavulak, 700 F.3d 651 

(3d Cir. 2012), is not to the contrary. Pavulak involved the 

application of 18 U.S.C. § 3559(e), which provides for a 
12

mandatory minimum sentence of life imprisonment for 

defendants who are recidivist child sex offenders. 700 F.3d at 

671 (citing 18 U.S.C. § 3559(e)(1)).7 The statute applies to 

previous state sex offenses that would be “punishable by 

more than one year in prison” and involve “conduct that 

would be a Federal sex offense” if there were federal 

jurisdiction. Id. (quoting § 3559(e)(2)(B)).

The government contends that Pavulak allows for a 

factual inquiry into the underlying facts of this case because, 

as in Pavulak, “the federal sentencing enhancement invites 

inquiry into the underlying facts of the case,” allowing the 

district judge to “evaluate whether the factual elements of the 

analogous federal crime were necessarily proven at the time 

of the defendant’s conviction on the state charges.” Id. at 672 

 

7 Because Pavulak was litigated before Alleyne v. United 

States, 133 S. Ct. 2151 (2013), which extended Apprendi to 

mandatory-minimum sentences, the defendant advanced an 

Apprendi claim that § 3559(e)(1) increased his maximum 

punishment, claiming this punishment would otherwise be 

only fifty years under 18 U.S.C. § 2251(e). Pavulak, 700 F.3d 

at 673. Instead of disposing of the defendant’s claim on the 

ground that Apprendi does not apply to recidivist 

enhancements, see Apprendi, 530 U.S. at 490, we embarked 

on an extensive analysis of whether the defendant’s statutory 

maximum was increased by § 3559(e)(1), Pavulak, 700 F.3d 

at 673. This inquiry required determining what the statutory 

maximum would have been under § 2251(e), which depended 

on whether the defendant had two or more prior convictions 

“relating to the sexual exploitation of children,” in which case 

§ 2251(e) would supply the same life maximum as § 

3559(e)(1). Pavulak, 700 F.3d. at 673–75.
13

(internal citation and quotations omitted). As an example of a 

statute requiring a factual inquiry, we noted that 18 U.S.C. § 

3559(e) focuses on whether the state offense involves 

“‘conduct that would be a Federal sex offense’ and thereby 

invit[es] an inquiry into the facts underlying the defendant’s 

conviction.” Id. at 673. We described this as applying the 

“modified categorical approach.” Id.

Categorizing this inquiry as the “modified categorical 

approach” was incorrect. We conflated the modified 

categorical approach with a factual approach that is 

appropriate only in “special circumstances.” Under the 

modified categorical approach, courts may look to a limited 

set of judicial documents to determine which of the multiple 

alternative crimes listed in a statute was the crime of 

conviction. See Descamps, 133 S. Ct. at 2284–85 (offering as 

examples, the terms of a plea agreement or the transcript of a 

plea colloquy); United States v. Brown, 765 F.3d 185, 189–90 

(3d Cir. 2014). But they may not, as Pavulak suggests, 

consider the facts for additional sentencing purposes. See 

Descamps, 133 S. Ct. at 2285 (“The modified approach thus 

acts not as an exception, but instead as a tool [of the 

categorical approach]. It retains the categorical approach’s 

central feature: a focus on the elements, rather than the facts, 

of a crime. And it preserves the categorical approach’s basic 

method: comparing those elements with the generic 

offense’s.”). 

Before Pavulak and since, we have applied the 

categorical approach to Guidelines recidivism provisions 

when there is no breach of a statutory maximum or Apprendi

violation. See, e.g., Brown, 765 F.3d at 189 n.2; United States 

v. Hopkins, 577 F.3d 507, 510 (3d Cir. 2009). In fact, it has 
14

never been the law that, absent an Apprendi violation, there 

are no limits to the scope of permissible fact-finding at 

sentencing. See Shepard v. United States, 544 U.S. 13, 24–26 

(2005); Taylor, 495 U.S. at 600–02.8

Moreover, our language in Pavulak conflating the 

modified-categorical approach with a factual inquiry was 

dicta that we did not follow even in Pavulak itself. Instead, 

we applied the categorical approach to assess whether the 

defendant’s prior convictions qualified him for the life 

maximum under § 2251(e), rejecting the “case-by-case 

analysis” urged by Pavulak that looked at whether the 

“conduct underlying his prior convictions ‘involved the 

[federally prohibited conduct].’” Pavulak, 700 F.3d at 674 

(quoting United States v. Randolph, 364 F.3d 118, 122 (3d 

Cir. 2004)). 

III.

Applying the categorical approach, we find the District 

Court erred in its application of U.S.S.G. § 4B1.5 because the 

Delaware statutes under which Dahl was convicted are 

broader than the federal aggravated sexual abuse statutes, and 

 

8 The categorical approach was not developed to avoid 

Apprendi violations—the categorical approach predates 

Apprendi by ten years—but to guarantee fairness in recidivist 

sentencing by avoiding inquiries into the factual 

circumstances underlying prior convictions. See Shepard, 544 

U.S. at 24–26 (noting Apprendi concerns as a “further reason” 

for the categorical approach); Taylor, 495 U.S. at 600–02. 

The avoidance of an Apprendi violation is just one 

justification for the approach. See Mathis, 136 S. Ct. at 2252.
15

therefore do not qualify as predicate offenses.

Section 4B1.5 of the Sentencing Guidelines enhances 

the recommended sentence for a “sex crime” when the 

defendant has at least one prior “sex offense conviction.” 

U.S.S.G. § 4B1.5(a). This Guideline defines “sex offense 

conviction” as “(I) any offense described in 18 U.S.C. § 

2426(b)(1)(A) or (B), if the offense was perpetrated against a 

minor, that (II) does not include trafficking in, receipt of, or 

possession of, child pornography.” Id. § 4B1.5, cmt. 3(A)(ii).

Section 2426(b)(1)(A)-(B) in turn, describes a “prior 

sex offense conviction” as:

(A) [any offense] under [Title 18 chapter 117], chapter 

109A, chapter 110, or section 1591; 

or

(B) [any offense] under State law . . . consisting of 

conduct that would have been an offense under a 

chapter referred to in paragraph (1) if the conduct had 

occurred within the special maritime and territorial 

jurisdiction of the United States.

18 U.S.C. § 2426(b)(1).

The government claims Dahl’s 1991 Delaware 

convictions for first- and third-degree sexual contact are 

equivalent to a federal conviction for aggravated sexual abuse 

under 18 U.S.C. § 2241 (a chapter 109A offense). Federal 

aggravated sexual abuse is defined in pertinent part as 

follows:
16

(a) By force or threat. 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, serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, 

imprisoned for any term of years or life, or both.

(b) By other means. Whoever . . . knowingly—

(1) renders another person unconscious 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 knowledge or 

permission of that person, a drug, intoxicant, or 

other similar substance and thereby—

(A) substantially impairs the ability of 

that other person to appraise or control 

conduct;

and

(B) engages in a sexual act with that 

other person;
17

or attempts to do so, shall be fined under this 

title, imprisoned for any term of years or life, or 

both.

(c) With children. Whoever . . . knowingly engages in 

a sexual act under the circumstances described in 

subsections (a) and (b) with another person who has 

attained the age of 12 years but has not attained the age 

of 16 years (and is at least 4 years younger than the 

person so engaging), or attempts to do so, shall be 

fined under this title and imprisoned for not less than 

30 years or for life.

18 U.S.C. § 2241 (emphasis added).

“Sexual act” is defined under federal law as:

(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 slight;

(B) contact between the mouth and the penis, the 

mouth and the vulva, or the mouth 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, humiliate, harass, 

degrade, or arouse or gratify the sexual desire of any 

person; or

(D) the intentional touching, not through the clothing, 
18

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.

Id. § 2246(2).

Under the categorical approach, we look to the 

elements of the state statute as it existed at the time of the 

prior conviction. See Taylor, 495 U.S. at 598 (looking at 

Missouri’s second-degree burglary statutes in effect at the 

times of petitioner’s convictions).

A person in 1989 (the date of Dahl’s conduct giving 

rise to his 1991 convictions) would be guilty of unlawful 

sexual contact in the first degree in Delaware if:

[I]n the course of committing unlawful sexual contact 

in the third degree or in the course of committing 

unlawful sexual contact in the second degree, or during 

the immediate flight from the crime, or during an 

attempt to prevent the reporting of the crime, he causes 

physical injury to the victim or he displays what 

appears to be a deadly weapon or dangerous 

instrument.

11 Del. Code Ann. § 769 (1987). 

First-degree unlawful sexual contact encompasses 

second- and third-degree unlawful sexual contact with the 

aggravating circumstance of physical injury or the display of 

a deadly or dangerous instrument. Id. Therefore, although 

Dahl was not convicted of second-degree unlawful sexual 
19

contact in 1991, we must examine the elements of seconddegree unlawful sexual contact. A person in 1989 would be 

guilty of unlawful sexual contact in the second degree in 

Delaware if:

[H]e intentionally has sexual contact with another 

person who is less than 16 years of age or causes the 

victim to have sexual contact with the person or a third 

person.

11 Del. Code Ann. § 768 (1987) (emphasis added).

A person in 1989 would be guilty of unlawful sexual 

contact in the third degree in Delaware if:

[H]e has sexual contact with another person or causes 

the victim to have sexual contact with him or a third 

person and he knows that the contact is either 

offensive to the victim or occurs without the victim’s 

consent.

Id. § 767 (emphasis added). 

Delaware law defined sexual contact in 1989 as:

[A]ny intentional touching of the anus, breast, buttocks 

or genitalia of another person, which touching, under 

the circumstances as viewed by a reasonable person, is 

sexual in nature. Sexual contact shall also include 

touching of those specified areas when covered by 

clothing. 
20

66 Del. Laws, ch. 269, § 27 (1988) (codified as amended at 

11 Del. Code Ann. § 761(f) (1995)).

Comparing the Delaware statutes to the federal 

statutes, we find that Delaware first- and third-degree 

unlawful sexual contact are broader than federal aggravated 

sexual abuse under 18 U.S.C. § 2241 in at least two ways, and 

therefore, Dahl’s prior offenses under these statutes do not 

qualify as “sex offense convictions” under U.S.S.G. § 4B1.5.

First, and most importantly, each Delaware statute 

prohibits “sexual contact,” whereas § 2241 prohibits “sexual 

act[s].” Compare 66 Del. Laws, ch. 269, § 27, with 18 U.S.C. 

§ 2241. Under the versions of Delaware’s unlawful sexual 

contact laws in place in 1989, sexual contact included 

touching genitalia and other specified areas through clothing. 

See 66 Del. Laws, ch. 269, § 27. But federal law defines 

“sexual act” more narrowly, requiring penetration or actual 

skin-to-skin contact between various specified body parts. See

18 U.S.C. § 2246(2)(A)-(C). And under federal law, the 

“intentional touching” of the genitalia of a person under 

sixteen years old is only a “sexual act” if it is skin-to-skin, 

i.e., “not through the clothing,” and is done with the “intent to 

abuse, humiliate, harass, degrade, or arouse or gratify a sexual 

desire of any person.” Id. § 2246(2)(D).

Federal law defines “sexual contact,” but this term is 

not included within 18 U.S.C. § 2241,9 nor is it correct to read 

 

9 The term “sexual contact” is used in other sections in 

Chapter 109A. See 18 U.S.C. § 2244 (defining when “sexual 

contact” is “abusive sexual contact”); id. § 2243.
21

“sexual contact” into the generic use of the term “contact” in 

the definition of “sexual act.” See United States v. Hayward, 

359 F.3d 631, 641 (3d Cir. 2004) (distinguishing a “sexual 

act,” which requires skin-to-skin touching, from “sexual 

contact,” for which “the touching could occur either directly 

or through the clothing,” and finding the defendant “could 

only have been sentenced to sexual contact, and not sexual 

abuse,” the latter of which requires a sexual act).

Even if it were correct to read “sexual contact” into the 

“contact” language of “sexual act,” the scope of the federal 

definition is narrower than Delaware’s definition. The federal 

definition limits criminal “sexual contact” to touching with 

the specific “intent to abuse, humiliate, harass, degrade, or 

arouse or gratify” a sexual desire. See 18 U.S.C. § 2246(3). 

By contrast, Delaware’s definition omits this specific intent 

requirement and criminalizes intentional touching “which 

touching, under the circumstances as viewed by a reasonable 

person, is sexual in nature.” 66 Del. Laws, ch. 269, § 27 

(emphasis added). This reasonable person standard is broader 

than the federal law’s intent requirement.10

 

10 See State v. Row, 1994 WL 45358, at *7 (Del. Super. Ct. 

Feb. 1, 1994) (unpublished) (“Under the . . . statute, the 

contact must be something more than a mere touching . . ., 

but something less than an attempt to arouse or gratify a 

sexual desire. Rather, the facts and circumstances surrounding 

the contact must lead a reasonable person, under the 

circumstances, to conclude the touching has sexual 

overtones.”); but cf. Dorcy v. City of Dover Bd. of Elections, 

1994 WL 146012, at *6 (Del. Super. Ct. Mar. 25, 1994) 

(unpublished) (holding that Delaware’s definition of “sexual 

contact” was similar to Ohio’s, which requires a showing that 
22

Second, Delaware third-degree unlawful sexual 

contact in 1989 prohibited consensual contact the defendant 

nonetheless knew was “offensive to the victim.” 11 Del. Code 

Ann. § 767 (1987).11 By contrast, federal aggravated sexual 

abuse involves a nonconsensual sexual act. The defendant 

must either (1) use force against a person or “threaten[]or 

plac[e] that other person in fear that any person will be 

subjected to death, serious bodily injury, or kidnapping,” 18 

U.S.C. § 2241(a), or (2) engage in a nonconsensual sexual act 

“by other means,” including rendering the victim unconscious 

and then engaging in a sexual act with the victim, or giving 

the victim a drug or similar substance that “substantially 

impairs the ability of that person to appraise or control 

conduct,” and then engaging in sex with the victim, id.

§ 2241(b).12

 

the defendant had “the purpose of sexually arousing or 

gratifying either person,” such that conduct covered by the 

Ohio law would be covered by the Delaware law). The 

language of 11 Del. Code Ann. § 761(f) was the same in 1989 

and 1994.

11 This distinction is only applicable to Delaware third-degree 

unlawful sexual contact and first-degree unlawful sexual 

contact when encompassing third-degree unlawful sexual 

contact with the aggravating circumstances of physical injury 

or the display of a deadly weapon or dangerous instrument. 

See 11 Del. Code Ann. § 769 (1987).

12 Also, the compulsion component of first-degree unlawful 

sexual contact under Delaware law may be broader in scope 

than the equivalent federal component because under 

Delaware law, the injury or “display[] [of] what appears to be 

a deadly weapon or dangerous instrument,” can occur at an 

unspecified time after the alleged sexual act occurs. 11 Del. 
23

Therefore, we agree with Dahl that Delaware first- and 

third-degree unlawful sexual contact “sweep more broadly” 

than federal aggravated sexual abuse. Dahl’s convictions for 

first- and third-degree unlawful sexual contact cannot be 

predicate sex offense convictions under U.S.S.G. § 4B1.5.

Neither party contends the modified categorical 

approach is applicable here. Based on the possible disjunctive 

reading of Delaware’s first- and third-degree unlawful sexual 

contact statutes, however, such an approach might be 

appropriate. See Singh v. Ashcroft, 383 F.3d 144, 163–64 (3d 

Cir. 2004).13 But because any division of the statutes requires 

 

Code Ann. § 769 (1987) (a person may be guilty of firstdegree unlawful sexual contact if, “during an attempt to 

prevent the reporting of the crime, he causes physical injury 

to the victim or he displays what appears to be a deadly 

weapon or dangerous instrument”). By contrast, the 

compulsion component of federal aggravated sexual abuse 

must come before engaging in the sexual act. See 18 U.S.C. § 

2241. But the various compulsion components could be 

alternative elements, as opposed to alternative means, and 

therefore, the statute might be divisible. See, e.g., Mathis, 136 

S. Ct. at 2256–57. In any event, we do not decide this issue 

here.

13 In Singh v. Ashcroft, we applied the categorical approach to 

a conviction under Delaware’s third-degree unlawful sexual 

contact statute, 11 Del. Code Ann. § 767 (1995). Singh, 383 

F.3d at 148, 163–64. Although § 767 was revised in 1995, 

there are no material differences between this version and the 

1987 version in place in 1989 when Dahl engaged in the 

conduct underlying his 1991 convictions. Compare 11 Del. 

Code Ann. § 767 (1995), with 11 Del. Code Ann. § 767 
24

“sexual contact,” which under Delaware law is more 

expansive than the federal “sexual act,” see supra, either 

statute would still be broader than § 2241, or any other 

offense described in 18 U.S.C. § 2426(b)(1)(A).

IV.

The District Court erred in failing to apply the 

categorical approach and subsequently applying U.S.S.G. § 

4B1.5. But because Dahl did not object to the application of § 

 

(1987). In Singh, we noted third-degree unlawful sexual 

contact is phrased in the disjunctive, “both with respect to its 

actus reus (which can be either (1) sexual contact or (2) 

causing sexual contact) and its mens rea (which can be either 

(a) knowing that the contact is offensive to the victim, or (b) 

knowing that the contact occurs without the victim’s 

consent).” Singh, 383 F.3d at 163. “[A]ny combination of 

actus reus and mens rea . . . suffice as the actus reus and 

mens rea of ‘sexual abuse.’” Id. The issue in Singh, however, 

was whether 11 Del. Code Ann. § 767 constituted “sexual 

abuse of a minor” under the Immigration and Nationality Act, 

and the Delaware statute “[was] silent on the critical matter of 

the age of the victim.” Id. Therefore, although the statute was 

phrased in the disjunctive, it was “not phrased in the 

disjunctive in a relevant way” because either reading lacked 

the age component. Id. at 164. Here, as in Singh, we need not 

apply the modified categorical approach because the 

definition of “sexual contact” implicated in both first- and 

third-degree unlawful sexual contact is broader than the 

federal definition of “sexual act” discussed supra.
25

4B1.5 on the grounds he asserts here, the issue is 

unpreserved. We must therefore decide whether it was plain 

error for the District Court to not apply the categorical 

approach. Because the error was plain, and errors such as this 

affect the fairness, integrity, and public reputation of judicial 

proceedings, we will exercise our discretion and find plain 

error under Federal Rule of Criminal Procedure 52(b).

Under Rule 52(b), we have the discretion “to correct 

the forfeited error” if (1) there is an error; (2) the error is 

plain; and (3) the error affects substantial rights. United States 

v. Olano, 507 U.S. 725, 732 (1993). If these “three prongs are 

satisfied, the court of appeals has the discretion to remedy the 

error” but our discretion “ought to be exercised only if the 

error ‘seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.’” Puckett v. United States, 

556 U.S. 129, 135 (2009) (quoting Olano, 507 U.S. at 736). 

For an error to be “plain,” it must be “clear or obvious 

rather than subject to reasonable dispute.” Puckett, 556 U.S. 

at 135. The government contends that if there was an error, it 

was not plain because our ruling in Pavulak suggests a judge 

may look at underlying facts to determine whether earlier 

conduct would have amounted to a specified federal offense. 

We recognize that “a new rule of law, set forth by an 

appellate court, cannot automatically lead that court to 

consider all contrary determinations by trial courts [as] 

plainly erroneous.” Henderson v. United States, 133 S. Ct. 

1121, 1130 (2013). But Henderson clarified that we apply 

“Rule 52(b)’s words ‘plain error’ as of the time of appellate 

review.” Id. at 1128. Therefore, if the Supreme Court clarifies 

whether something is an error following sentencing, but 

before we decide a case on appeal, we must follow the 
26

Supreme Court’s ruling. 

Given the Supreme Court’s holdings in Descamps and 

Nijhawan, we believe the law was clear at the time of Dahl’s 

sentencing that the categorical approach should have been 

applied. But even assuming the law was unclear when Dahl 

was sentenced in May, 2015, the Supreme Court’s decision in 

Johnson one month later, and its most recent decision in 

Mathis, clarify that a statute’s reference to “conduct” does not

invite a factual inquiry. Rather, the use of the phrase 

“conviction” indicates Congress’s intent “that the sentencer 

should ask only about whether ‘the defendant had been 

convicted of crimes falling within certain categories,’ and not 

about what the defendant had actually done.” Mathis, 136 S. 

Ct. at 2252 (quoting Taylor, 495 U.S. at 600); see also 

Johnson, 135 S. Ct. at 2562. We have no doubt that if Dahl 

were to be sentenced today, the categorical approach would 

apply. Therefore, even if the error was not plain at sentencing, 

it is plain now. See Johnson v. United States, 520 U.S. 461, 

467 (1997) (concluding that when there is “no doubt that if 

petitioner’s trial occurred today, the failure . . . would be an 

error,” this error is “plain”); cf. United States v. Stinson, 734 

F.3d 180, 187 (3d Cir. 2013) (finding the error was clear in 

light of the plain language of the relevant Guidelines 

provision, despite the issue being one of first impression). 

We also hold, and the government does not contest, 

that this error affected substantial rights. Generally, “[i]t is the 

defendant rather than the Government who bears the burden 

of persuasion with respect to prejudice.” Olano, 507 U.S. at 

734. But “[w]hen a defendant is sentenced under an incorrect 

Guidelines range—whether or not the defendant’s ultimate 

sentence falls within the correct range—the error itself can, 

and most often will, be sufficient to show a reasonable 
27

probability of a different outcome absent the error.” MolinaMartinez, 136 S. Ct. 1338, 1345 (2016); see also United 

States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001) (“[A]n 

error in application of the Guidelines that results in [the] use 

of a higher sentencing range should be presumed to affect the 

defendant’s substantial rights.”). The government can rebut 

this presumption if it can show “that the judge based the 

sentence he or she selected on factors independent of the 

Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 

Here, the sentencing judge referenced the initial 

guideline range, stating “I find no basis to vary downward 

from the advisory sentencing guidelines.” J.A. 101. 

Therefore, we cannot conclude, as would be required to 

affirm, “that the district court thought the sentence it chose 

was appropriate irrespective of the Guidelines range.” 

Molina-Martinez, 136 S. Ct. at 1346. Nor can we conclude 

“that the sentencing court would have imposed the same 

sentence regardless of the [sex] offender designation” because 

“[t]o assume so—particularly when the record suggests that 

[the offender designation] played a role in the ultimate 

sentence imposed—would ‘place us in the zone of 

speculation and conjecture.’” United States v. Calabretta, No. 

14-3969, 2016 WL 3997215, at *9 (3d Cir. Jul. 26, 2016) 

(quoting United States v. Zabielski, 711 F.3d 381, 387 (3d 

Cir. 2013)). But we also cannot conclude that, had the judge 

known § 4B1.5 did not apply, he would not have nevertheless 

considered an upward departure—an integral feature of the 

Sentencing Guidelines. See Koon v. United States, 518 U.S. 

81, 93–95 (1996).

Finally, we must determine whether the error 

“seriously affects the fairness, integrity or public reputation of 
28

judicial proceedings.’” Puckett, 556 U.S. at 135 (quoting 

Olano, 507 U.S. at 736). We generally exercise our discretion 

to recognize a plain error in the misapplication of the 

Sentencing Guidelines. Knight, 266 F.3d at 206 n.7. This is 

because, as noted by a sister court of appeals, “few things . . . 

affect . . . the public’s perception of the fairness and integrity 

of the judicial process more than a reasonable probability an 

individual will linger longer in prison than the law demands 

only because of an obvious judicial mistake.” United States v. 

Sabillon-Umana, 772 F.3d 1328, 1335 (10th Cir. 2014). We 

will likewise exercise our discretion here.

The government contends there was no miscarriage of 

justice because the undisputed facts make clear the defendant 

engaged in conduct amounting to federal sex offenses. Again, 

however, when determining whether a predicate offense 

qualifies under the Guidelines, sentencing courts should not 

look to the underlying facts of the prior offense, but to its 

elements. Descamps, 133 S. Ct. at 2283.14

 

14 The government also contends Dahl’s 2001 conviction for 

second-degree unlawful sexual contact under 11 Del. Code 

Ann. § 768—resulting from conduct in 1999—qualified as a 

prior offense for the purposes of § 4B1.5 because it is 

analogous to 18 U.S.C. § 2243(a)(3). Section 2244(a)(3) 

criminalizes “knowingly engag[ing] in or caus[ing] sexual 

contact with or by another person, if so to do would violate . . 

. subsection (a) of section 2243 . . . had the sexual contact

been a sexual act . . . .” 18 U.S.C. § 2244(a) (emphasis 

added). The government’s argument is not persuasive. First, it 

is not clear the government could have used this offense to 

increase Dahl’s sentence. The government noted during 

Dahl’s plea colloquy that “[s]ection 2243 [was] not the 
29

V.

We recognize the severity of Dahl’s offense, but the 

error here is plain under Johnson and Mathis, and affects 

Dahl’s substantial rights under Molina-Martinez. Therefore, 

we will vacate Dahl’s sentence and remand for resentencing 

in accordance with this opinion and in consideration of 18 

U.S.C. § 3553(a) and the Sentencing Guidelines. 

 

Federal equivalent crime [it was] relying upon for [Dahl’s] 

prior sex offense.” J.A. 57 (emphasis added). Second, the 

definition of “sexual contact” in Delaware in 1999 (which is 

incorporated in Delaware’s definition of second-degree 

unlawful sexual contact, see supra) was materially the same 

as the definition of “sexual contact” in Delaware in 1989. 

Compare 11 Del. Code Ann. § 768 (1995) and 72 Del. Laws, 

ch. 109 § 1 (effective July 1, 1999) (codified as amended at 

11 Del. Code Ann. § 761(f) (2000)), with 66 Del. Laws, ch. 

269, § 27 (1988). Therefore, the Delaware definition of 

“sexual contact” in 1999, and by extension the Delaware 

definition of second-degree unlawful sexual contact, was 

broader than 18 U.S.C § 2243(a)(3). See supra n. 10 and 

accompanying text.