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



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-6166
                                                    (D.C. No. CR-96-22-R)
    HOUSTON WISE TALAMASEY,                              (W.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Houston Wise Talamasey pled guilty to a charge of engaging in

sexual contact with a child under age twelve, in violation of 18 U.S.C.

§§ 2241(c) and 2244(a)(1). He appeals from the district court’s finding that he

committed aggravated sexual abuse by “the penetration, however slight, of the . . .

genital opening,” see 18 U.S.C. § 2246(2)(C), which led the district court to

calculate Talamasey’s sentence under the criminal sexual abuse guideline,

U.S.S.G. § 2A3.1, instead of the abusive sexual contact guideline, U.S.S.G.

§ 2A3.4. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      “We review the district court’s findings of fact underlying a sentence for

clear error and review de novo its interpretations of the Sentencing Guidelines.”

United States v. Burdex, 100 F.3d 882, 884 (10th Cir. 1996). “We also review for

clear error the district court’s application of the Guidelines to the facts.” Id.

      Talamasey’s plea agreement specified that the sentencing guideline for

abusive sexual contact contained a cross-reference to aggravated sexual abuse of

a child, see U.S.S.G. § 2A3.4(c)(1); that Talamasey could be sentenced under this

cross-reference as if he had pled guilty to aggravated sexual abuse of a child,

except that he could not be sentenced to more than ten years’ imprisonment; that

the government would present evidence that Talamasey was guilty of aggravated

sexual abuse of a child; and that the government would urge the sentencing court

to apply the cross-reference. R. Vol. I, Doc. 15 at 5-6. At Talamasey’s plea


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hearing, the government reiterated that it would ask the court to sentence

Talamasey under the cross-reference. R. Supp. Vol. I at 8. The court explained

this further and asked Talamasey if he understood. Id. at 9. Talamasey said he

did. Id.

      At sentencing, the district court found from the evidence that

      there [were] some inconsistencies, certainly, in the statements[;]
      however, we do know that there was a touching, there’s no question
      about that, the defendant has admitted that, and additionally,
      consistently, this little girl has said that she was penetrated either by
      the man’s penis or by [sic] digitally, and I’m satisfied from this
      testimony by a preponderance of the evidence that--that she was
      penetrated, which constitutes sexual abuse. Under the statute,
      criminal sexual abuse is committed when there has been penetration.

R. Vol. II at 27-28. Based on our review of the record, this finding is not clearly

erroneous.

      Because Talamasey was warned that he could be sentenced under the

criminal sexual abuse guideline according to the cross-reference in the abusive

sexual contact guideline, and because the district court’s finding that Talamasey

committed criminal sexual abuse is not clearly erroneous, we find no error in the

district court’s application of the cross-reference.




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     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.


                                                  Entered for the Court


                                                  David M. Ebel
                                                  Circuit Judge




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