PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
             ________________

                   No. 15-2271
                ________________

        UNITED STATES OF AMERICA

                         v.

               WILLIAM S. DAHL,
                            Appellant

                ________________

         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
                ________________

               Argued: June 8, 2016

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit
                   Judges

             (Filed: August 18, 2016)
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

                    _________________

                        OPINION
                    _________________


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




                              2
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.




                               3
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, 3 and

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.




                              4
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, 

, 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, 

, 732 (1993).




                               5
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, 

,
2283 (2013) (quoting Taylor v. United States, 

,
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.’”

, 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.” 

In other words, we
look to the elements of the prior offense “to ascertain the least
culpable conduct hypothetically necessary to sustain a




                                6
conviction under the statute.” Hernandez-Cruz v. Att’y Gen.,

, 285 (3d Cir. 2014). The elements, not the facts,
are key. 

.

        In Johnson v. United States, 

(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. 

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 

(“[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.” 

(“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 

)).

      In a recent decision, Mathis v. United States, 

(2016), the Court emphasized that a sentencing
enhancement’s use of the phrase “conviction” indicates




                               7
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 

)).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, 

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.” 

(citing Apprendi v. New Jersey, 

, 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.” 

(quoting

–89).




                                8
       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.

(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 

.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. 

.




                               9
v. Attorney General, 

(3d Cir. 2008), aff’d,
Nijhawan v. Holder, 

(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). 

. 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.’” 

(quoting Singh v. Ashcroft, 

, 161 (3d Cir.
2004)). A holding to the contrary “would essentially gut
every deportability standard containing the ‘in which’ or
other analogous qualifying language.” 

Because it
was not an element, we found it proper to depart from the
formal categorical approach, and look “‘into the facts . . . at
issue.’” 

(quoting 

). But we
did not abandon the categorical approach in analyzing the rest
of the statute. 

(“[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




                               10
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

. But the Court cautioned that the
categorical approach should still be applied to the generic
elements of the statute. See, e.g., 

(“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.”); 

(“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, 

(3d Cir. 2012), is not to the contrary. Pavulak involved the
application of 18 U.S.C. § 3559(e), which provides for a




                             11
mandatory minimum sentence of life imprisonment for
defendants who are recidivist child sex 

(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. 

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.” 

7
  Because Pavulak was litigated before Alleyne v. United
States, 

(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). 

. Instead of disposing of the defendant’s claim on the
ground that Apprendi does not apply to recidivist
enhancements, see 

, we embarked
on an extensive analysis of whether the defendant’s statutory
maximum was increased by § 3559(e)(1), 

. 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). 

–75.




                              12
(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.” 

We described this as applying the
“modified categorical approach.” 

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 

–85 (offering as
examples, the terms of a plea agreement or the transcript of a
plea colloquy); United States v. Brown, 

, 189–90
(3d Cir. 2014). But they may not, as Pavulak suggests,
consider the facts for additional sentencing purposes. See

(“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., 

n.2; United States
v. Hopkins, 

, 510 (3d Cir. 2009). In fact, it has




                              13
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, 

, 24–26
(2005); 

–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].’” 

(quoting United States v. Randolph, 

, 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 

–26 (noting Apprendi concerns as a “further reason”
for the categorical approach); 

–02.
The avoidance of an Apprendi violation is just one
justification for the approach. See 

.




                              14
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.” 

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:




                              15
(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;




                      16
             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,




                             17
       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.

       Under the categorical approach, we look to the
elements of the state statute as it existed at the time of the
prior conviction. See 

(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. 

Dahl was not convicted of second-degree unlawful sexual




                              18
contact in 1991, we must examine the elements of second-
degree 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.

(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.




                              19
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.” 

       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”); 

                               20
“sexual contact” into the generic use of the term “contact” in
the definition of “sexual act.” See United States v. Hayward,

, 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, 

, 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,

, 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




                               21
       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, 

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. 

        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, 

, 163–64 (3d
Cir. 2004).13 But because any division of the statutes requires


Code Ann. § 769 (1987) (a person may be guilty of first-
degree 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., 

–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). 

, 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




                               23
“sexual contact,” which under Delaware law is more
expansive than the federal “sexual act,” 

, 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).” 

. “[A]ny combination of
actus reus and mens rea . . . suffice as the actus reus and
mens rea of ‘sexual abuse.’” 

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.” 

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. 

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.




                              24
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, 

, 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,

, 135 (2009) (quoting 

).

       For an error to be “plain,” it must be “clear or obvious
rather than subject to reasonable dispute.” 

. 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, 

, 1130 (2013). But Henderson clarified that we apply
“Rule 52(b)’s words ‘plain error’ as of the time of appellate
review.” 

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




                               25
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 

); see also

. 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, 

,
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, 

, 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.” 

. 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




                                26
probability of a different outcome absent the error.” Molina-
Martinez, 

, 1345 (2016); see also United
States v. Knight, 

, 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.” 

.

       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.”

. 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, 

, at *9 (3d Cir. Jul. 26, 2016)
(quoting United States v. Zabielski, 

, 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, 

, 93–95 (1996).

       Finally, we must determine whether the error
“seriously affects the fairness, integrity or public reputation of




                               27
judicial proceedings.’” 

(quoting

). We generally exercise our discretion
to recognize a plain error in the misapplication of the
Sentencing Guidelines. 

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, 

, 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. 

.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




                               28
                                 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, 

) 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.




                            29