                                    ___________

                                    No. 95-2641
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *
                                         *
     v.                                  * Appeal from the United States
                                         * District Court for the
Walter Cavanaugh, also known as          * District of North Dakota
Porgie Cavanaugh,                        *
                                         * (UNPUBLISHED)
              Appellant.                 *


                                    ___________

                     Submitted:     February 7, 1996

                           Filed:   May 10, 1996
                                    ___________

Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.


     Walter Cavanaugh appeals from the final judgment entered in the
District Court for the District of North Dakota upon a guilty plea to a
superceding information charging him with abusive sexual contact with a
child under the age of 12, within Indian country, in violation of 18 U.S.C.
§§ 2244(a)(1) and 1153.       The district court sentenced Cavanaugh to 24
months imprisonment and two years supervised release.      For reversal, he
argues that the district court erred in calculating his base offense level.
For the following reasons, we vacate Cavanaugh's sentence and remand for
resentencing.


     The victim told investigators that, in the summer of 1993, she was
walking down a road with Cavanaugh when he lay down by the side of the
road, asked her to approach him, and requested that she lie
down beside him, which she did.        Cavanaugh removed the victim's pants and
"bloomers," began to rub her between the legs, and placed his finger inside
her vagina.    The victim stated that Cavanaugh would not stop rubbing her,
and that he was kissing her and trying to get on top of her.             Cavanaugh
finally told the victim to pull up her pants, that he was just tricking
her, and that she should never tell anyone or he would kill her.


        The probation officer who prepared Cavanaugh's presentence report
(PSR) recommended a base offense level of 16 under U.S.S.G. § 2A3.4(a)(1),
which applies "if the offense was committed by the means set forth in 18
U.S.C. § 2241(a) or (b)."     Commentary explains in relevant part that those
"means" include "using force against the victim," or "threatening or
placing the victim in fear that any person will be subjected to death,
serious bodily injury, or kidnapping."         U.S.S.G. § 2A3.4, comment. (n.1).
The probation officer added 4 levels because the victim was under age 12,
and subtracted 3 levels for acceptance of responsiblity.             The resulting
offense level of 17 and Cavanaugh's Category I criminal history produced
a Guidelines sentencing range of 24-30 months.


        Cavanaugh objected to the base offense level of 16, arguing that the
proper base offense level was 10.       See U.S.S.G. § 2A3.4(a)(3) (base offense
level is 10 when offense was committed by means other than those set forth
in § 2241(a) or (b), or in 18 U.S.C. § 2242).                  The district court
nevertheless adopted the calculations in the PSR, noting that it was
considering Cavanaugh's act; the victim's age, coupled with the warning to
her; and the child's helplessness.          The district court did not connect
these factors, however, with the issue of whether the offense was committed
by the use of force or threats.        Instead, the district court indicated that
these    factors   weighed   against    awarding   Cavanaugh    an   acceptance-of-
responsibility reduction.


        On appeal, Cavanaugh maintains that the information before the




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district court did not support a factual finding that force or threats were
used to commit the crime, and that the district court wanted to assess a
final offense level of 17 and honor the government's recommendation for an
acceptance-of-responsibility     reduction,   regardless   of   the   correct
application of the Guidelines.   The government agrees that the case should
be remanded.


     Upon our review of the record, we conclude that the district court
failed separately to analyze the issues of acceptance of responsibility and
base offense level.   The district court also did not make clear findings
on whether force or threats were used in commission of the offense.     It is
therefore unclear why the district court concluded the appropriate base
offense level was 16.    Accordingly, we vacate Cavanaugh's sentence and
remand the case with directions to the district court to reconsider these
sentencing issues, consistent with this opinion, and to resentence him.1


     A true copy.
           Attest:
                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




       1
       We reject as meritless the remaining arguments raised in
Cavanaugh's brief.

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