U.S.S.G. § 2A3.4
Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact
(a) Base Offense Level:
(1) 20, if the offense involved conduct 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 the 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 determined 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.
(3) If the victim was in the custody, care, or supervisory control of the defendant, increase by 2 levels.
(4) If the offense involved the knowing misrepresentation of a participant's identity to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct, increase by 2 levels.
(5) If a computer or an interactive computer service was used to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct, increase by 2 levels.
(c) Cross References
(1) 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 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
(2) If the offense involved criminal sexual abuse of a minor or attempt to commit criminal sexual abuse of a minor (as defined in 18 U.S.C. § 2243(a)), apply §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts), if the resulting offense level is greater than that determined above.
Commentary
Statutory Provision: 18 U.S.C. § 2244. For additional statutory provision(s), see Appendix A (Statutory Index).Application Notes:
1. Definitions.—For purposes of this guideline:"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).
"Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).
"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
"Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1.1 (Aggravating Role).
"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
(A) Custody, Care, or Supervisory Control.—Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.
(B) Inapplicability of Chapter Three Adjustment.—If the enhancement in subsection (b)(3) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
The misrepresentation to which the enhancement in subsection (b)(4) may apply includes misrepresentation of a participant's name, age, occupation, gender, or status, as long as the misrepresentation was made with the intent to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Accordingly, use of a computer screen name, without such intent, would not be a sufficient basis for application of the enhancement.
6. Application of Subsection (b)(5).—Subsection (b)(5) provides an enhancement if a computer or an interactive computer service was used to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(5) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor. Background: This section covers abusive sexual contact not amounting to criminal sexual abuse (criminal sexual abuse is covered under §§2A3.1–3.3). Alternative base offense levels are provided to take account of the different means used to commit the offense.Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (amendment 95); November 1, 1991 (amendment 392); November 1, 1992 (amendment 444); November 1, 1995 (amendment 511); November 1, 2000 (amendment 592); November 1, 2001 (amendment 615); November 1, 2004 (amendment 664); November 1, 2007 (amendments 701 and 711).
Notes of Decisions
Cited in 81
cases (7 in the last 5 years), 1991–2025 · leading case: United States v. Scott Hayward
United States v. Scott Hayward (2004)
“rial improperly allowed the prosecution to play Hayward’s tape recorded statements to Scotland Yard investigators; (3) the District Court should have instructed the jury that criminal sexual activity had to be “the dominant”— rather than “a significant or motivating”— purpose of…”
United States v. Perazza-Mercado (2009)
“NOTES [1] The guidelines range was calculated as follows: a base offense level of sixteen pursuant to U.S.S.G. § 2A3.4(a)(2); a four-level increase pursuant to U.”
United States v. Miranda (2003)
“On appeal, the government argues that the district court erred: (1) in applying U.S.S.G. § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), instead of the harsher penalties provided in U.”
United States v. Delaney Poor Bear (2004)
“Thus, the parties agreed in their nonbinding plea agreement that the Abusive Sexual Contact provision, U.S.S.G. § 2A3.4, controlled the determination of Poor Bear’s base offense level.”
United States v. Jorge Rodriguez (2013)
“, U.S.S.G. §§ 2A3.4 comment. (n.1); 2G2.1 comment.”
United States v. Charles Matthew Yates (1994)
“§ 2241 (a); U.S.S.G. § 2A3.4(a)(l). 2 An additional four-level upward adjustment was added in the presentence report based on the age of the victim (less than twelve years old), *985 pursuant to U.”
United States v. Meacham (1997)
“2(c)(3) cross-reference directing the court to apply USSG § 2A3.4 if the offense did not have as its purpose “producing a visual depiction,” 2G1.”
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit (2000)
“2 (Criminal Sexual Abuse of a Minor); U.S.S.G. § 2A3.4(a) (Abusive Sexual Contact).”
United States v. Darrell Lee Miller (2002)
“” USSG § 2A3.4, comment. (n. 4). A.B. and both of Miller’s daughters testified that Miller lived with them for weeks or months at a time at the three different houses in which they lived during their lives.”
United States v. Panfil (2003)
“” USSG § 2A3.4, comment. (backg’d.) Section 2A3.”
United States v. Pernell Robert Crow (1998)
“” See U.S.S.G. § 2A3.4, comment. (n.l) (1997). Counsel objected to the PSR, arguing that Crow’s base offense level should be 10 pursuant to U.”
United States v. Charles Wayne Morgan (1999)
“1, the guideline for aggravated sexual abuse cross-referenced in U.S.S.G. § 2A3.4, the guideline for abusive sexual contact.”
— U.S.S.G. §2A3.4(C) — 1 case
United States v. Sandoval (2007)
— U.S.S.G. §2A3.4(a) — 10 cases
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit (2000)
“2 (Criminal Sexual Abuse of a Minor); U.S.S.G. § 2A3.4(a) (Abusive Sexual Contact).”
United States v. John (2002)
United States v. Pernell Robert Crow (1998)
“” See U.S.S.G. § 2A3.4, comment. (n.l) (1997). Counsel objected to the PSR, arguing that Crow’s base offense level should be 10 pursuant to U.”
— U.S.S.G. §2A3.4(a)(1) — 6 cases
United States v. Platero (2021)
United States v. Wayka (2001)
— U.S.S.G. §2A3.4(a)(2) — 17 cases
United States v. Perazza-Mercado (2009)
“NOTES [1] The guidelines range was calculated as follows: a base offense level of sixteen pursuant to U.S.S.G. § 2A3.4(a)(2); a four-level increase pursuant to U.”
United States v. Delaney Poor Bear (2004)
“Thus, the parties agreed in their nonbinding plea agreement that the Abusive Sexual Contact provision, U.S.S.G. § 2A3.4, controlled the determination of Poor Bear’s base offense level.”
— U.S.S.G. §2A3.4(a)(3) — 8 cases
United States v. Pernell Robert Crow (1998)
“” See U.S.S.G. § 2A3.4, comment. (n.l) (1997). Counsel objected to the PSR, arguing that Crow’s base offense level should be 10 pursuant to U.”
United States v. Roy Joey (2017)
United States v. Rosales (1994)
United States v. Lanier (2001)
— U.S.S.G. §2A3.4(a)(l) — 6 cases
United States v. Charles Matthew Yates (1994)
“§ 2241 (a); U.S.S.G. § 2A3.4(a)(l). 2 An additional four-level upward adjustment was added in the presentence report based on the age of the victim (less than twelve years old), *985 pursuant to U.”
United States v. Darrell Lee Miller (2002)
“” USSG § 2A3.4, comment. (n. 4). A.B. and both of Miller’s daughters testified that Miller lived with them for weeks or months at a time at the three different houses in which they lived during their lives.”
United States v. Springer (2009)
— U.S.S.G. §2A3.4(b)(1) — 3 cases
United States v. Perazza-Mercado (2009)
“NOTES [1] The guidelines range was calculated as follows: a base offense level of sixteen pursuant to U.S.S.G. § 2A3.4(a)(2); a four-level increase pursuant to U.”
— U.S.S.G. §2A3.4(b)(2) — 3 cases
United States v. Delaney Poor Bear (2004)
“Thus, the parties agreed in their nonbinding plea agreement that the Abusive Sexual Contact provision, U.S.S.G. § 2A3.4, controlled the determination of Poor Bear’s base offense level.”
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit (2000)
“2 (Criminal Sexual Abuse of a Minor); U.S.S.G. § 2A3.4(a) (Abusive Sexual Contact).”
— U.S.S.G. §2A3.4(b)(3) — 10 cases
United States v. Perazza-Mercado (2009)
“NOTES [1] The guidelines range was calculated as follows: a base offense level of sixteen pursuant to U.S.S.G. § 2A3.4(a)(2); a four-level increase pursuant to U.”
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit (2000)
“2 (Criminal Sexual Abuse of a Minor); U.S.S.G. § 2A3.4(a) (Abusive Sexual Contact).”
United States v. Darrell Lee Miller (2002)
“” USSG § 2A3.4, comment. (n. 4). A.B. and both of Miller’s daughters testified that Miller lived with them for weeks or months at a time at the three different houses in which they lived during their lives.”
United States v. Sandoval (2007)
— U.S.S.G. §2A3.4(b)(6) — 1 case
— U.S.S.G. §2A3.4(b)(l) — 4 cases
United States v. Charles Matthew Yates (1994)
“§ 2241 (a); U.S.S.G. § 2A3.4(a)(l). 2 An additional four-level upward adjustment was added in the presentence report based on the age of the victim (less than twelve years old), *985 pursuant to U.”
United States v. Darrell Lee Miller (2002)
“” USSG § 2A3.4, comment. (n. 4). A.B. and both of Miller’s daughters testified that Miller lived with them for weeks or months at a time at the three different houses in which they lived during their lives.”
— U.S.S.G. §2A3.4(c)(1) — 7 cases
United States v. Castillo (2020)
United States v. Charles Wayne Morgan (1999)
“1, the guideline for aggravated sexual abuse cross-referenced in U.S.S.G. § 2A3.4, the guideline for abusive sexual contact.”
United States v. Platero (2021)
United States v. Willis (2019)
— U.S.S.G. §2A3.4(c)(2) — 2 cases
United States v. Panfil (2003)
“” USSG § 2A3.4, comment. (backg’d.) Section 2A3.”
United States v. Payne (2003)
— U.S.S.G. §2A3.4(c)(l) — 4 cases
United States v. Delaney Poor Bear (2004)
“Thus, the parties agreed in their nonbinding plea agreement that the Abusive Sexual Contact provision, U.S.S.G. § 2A3.4, controlled the determination of Poor Bear’s base offense level.”
United States v. Swank (2012)
United States v. Sandoval (2007)
— U.S.S.G. §2A3.4(e)(1) — 1 case
United States v. Charles Wayne Morgan (1999)
“1, the guideline for aggravated sexual abuse cross-referenced in U.S.S.G. § 2A3.4, the guideline for abusive sexual contact.”
— U.S.S.G. §2A3.4(e)(l) — 2 cases
United States v. Sandoval (2007)
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