                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5128


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

HARRY EDMUND LESHEN, a/k/a Harry E. Leshen, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:08-cr-00053-RBS-TEM-1)


Argued:   March 26, 2010                  Decided:   November 10, 2011


Before MICHAEL 1 and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.      Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public

     1
       Judge Michael heard oral argument in this case but passed
away before the decision was filed. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Defender, Alexandria, Virginia, Keith Loren Kimball, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United
States Attorney, Alexandria, Virginia, Timothy R. Murphy,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

           Appellant Harry Edmund Leshen pled guilty without a

plea agreement to one count of being a felon in possession of a

firearm,   in   violation    of    18   U.S.C.   §   922(g)(1).     Leshen’s

presentence investigation report (PSR), adopted by the district

court,   increased   his    base   offense   level   because   he   had   been

convicted of two or more “crime[s] of violence” under U.S.S.G.

§ 4B1.1 (the Career-Offender Guideline), as defined in U.S.S.G.

§ 4B1.2(a).     On appeal Leshen argues for the first time that his

prior conviction for grand larceny is too old to be the basis of

the enhancement, and that his two convictions for sex offenses

are not crimes of violence.             The government contends that the

sex offenses are “forcible sex offenses” and thus constitute

crimes of violence.        For the reasons explained below we vacate

Leshen’s sentence and remand for resentencing. 2




     2
       At Leshen’s request, and by order entered on January 11,
2011, we placed this appeal in abeyance pending the court’s en
banc consideration of United States v. Vann, 620 F.3d 431 (4th
Cir. 2010) (affirming enhanced sentence for violation of 18
U.S.C. § 922(g)(1) pursuant to the Armed Career Criminal Act),
which had been relied on by the government in a post-argument
Rule 28(j) submission. Upon rehearing en banc, the enhanced
sentence imposed in Vann was vacated. See United States v. Vann,
2011 WL 4793230, No. 09-4298 (4th Cir. Oct. 11, 2011) (en banc).



                                        3
                                        I.

            On May 13, 2008, a federal grand jury sitting in the

Eastern   District     of    Virginia   returned    an   indictment        charging

Leshen    with   one   count   of    being   a   felon   in    possession     of    a

firearm in violation of 18 U.S.C. § 922(g)(1).                      J.A. 6-7.      On

July 18, 2008, Leshen waived his right to have his plea taken

before the district court and pled guilty before a magistrate

judge.     J.A.   8-25.        The   magistrate    judge      set    a   sentencing

hearing for October 27, 2008, and ordered a probation officer to

prepare a PSR.         J.A. 23-24.      At sentencing the district court

accepted Leshen’s guilty plea and found him guilty.                       J.A. 43.

The district court also adopted the PSR that is the basis of

Leshen’s appeal.       Id.

            The criminal history portion of the PSR details three

sets of convictions at issue here.                 Leshen was convicted of

grand larceny, a felony, in Virginia in 1988.                 J.A. 79.     In 1996

in Pennsylvania he was convicted of aggravated indecent assault,

indecent assault, and corruption of a minor. 3                J.A. 80-81.       And

in 2008 in Kentucky Leshen pled guilty to and was convicted of



     3
       Only the aggravated indecent assault conviction could
qualify as a predicate offense under the Career-Offender
Guideline because the other offenses are not punishable by
imprisonment for more than one year, as the Guideline requires.
See Pa. Cons. Stat. Ann. §§ 3126(b), 6301.



                                        4
third-degree         rape     and      third-degree          sodomy. 4           J.A.     84-85.

Applying the relevant Guideline, U.S.S.G. § 2K2.1, the probation

officer initially set Leshen’s base offense level at 26 because

the    firearm      was   a      semiautomatic      weapon         “that    is    capable      of

accepting a large capacity magazine and the defendant committed

the    instant       offense        subsequent          to    sustaining          two     felony

convictions         for   crimes       of    violence.”            J.A.     95.         The   PSR

elsewhere      cited      Leshen’s       convictions         for    larceny       and     third-

degree      rape,    J.A.     75,      77,   but   did       not   assign     any       criminal

history points to the larceny conviction, J.A. 96.

              The PSR set the final base offense level at 23 on the

basis of Leshen’s acceptance of responsibility.                             J.A. 77-78, 99.

The PSR deemed Leshen to have a criminal history category of

III.       J.A. 96-98.        Based on these figures, the PSR calculated a

Guidelines       range      of    57    to   71    months.          J.A.    99.         The   PSR

calculation properly assigned only one criminal history point to

the Kentucky convictions because he had not yet been sentenced

for those offenses.              J.A. 97; see U.S.S.G. § 4A1.2(a)(4).                     Since

then   Leshen       has   been      sentenced      in    Kentucky      to    two    five-year

terms to run consecutively to one another and consecutively to

his federal sentence.


       4
       Only the third-degree rape conviction could qualify as a
predicate offense. See U.S.S.G. §§ 2K2.1 cmt. n.10, 4A1.2(a)(2).



                                               5
             At the sentencing hearing the district court adopted

the PSR and its Guidelines calculation, to which Leshen did not

object.     J.A. 29-35, 48-52.               In pronouncing the sentence the

court   explained,       “frankly      I    think     the    Guidelines        are   pretty

generous, given your criminal background here and your record.

But I am going to sentence you within the Guidelines at the top

end of 71 months.”          J.A. 56.          Leshen timely filed a notice of

appeal on November 6, 2008.             J.A. 69.



                                            II.

            When   a     defendant      unlawfully          possesses      a   firearm    in

violation    of     18    U.S.C.        §     922(g)(1)       and        the   weapon     is

semiautomatic      and    can    accept       a    large-capacity          magazine,     the

defendant    receives      a     base       offense    level        of    at   least     20.

U.S.S.G. § 2K2.1(a).            The base offense level increases to 22 if

the defendant has a prior conviction for a crime of violence,

and to 26 for two or more such convictions.                          Leshen challenges

the increase in his base offense level from 20 to 26, arguing

the district court erred in using his larceny conviction because

it was too old, and erred in using his convictions for sex

offenses    because      they    are    not       crimes    of   violence.           Because

Leshen did not object below, we review for plain error.                                  See

United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).                              To

prevail Leshen must demonstrate that (1) an error occurred that

                                             6
(2) was plain and (3) affected the outcome of the sentencing,

and that (4) the appellate court should exercise its discretion

to correct the error because it “seriously affects the fairness,

integrity,      or     public       reputation     of   judicial     proceedings.”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal

quotations and citations omitted).

           We        conclude    that      the    larceny       conviction    cannot

increase Leshen’s base offense level, and that — notwithstanding

Leshen’s   heavy      burden    —    the   district     court    plainly   erred    in

classifying Leshen’s prior sex offenses as crimes of violence.

                                           A.

           We    first      consider       the    larceny       conviction.        The

government does not dispute that it would be plain error to

increase Leshen’s base offense level on account of that 1988

conviction.      U.S. Br. at 13-14.             We agree.   Only prior felonies

receiving criminal history points under U.S.S.G. § 4A1.1(a)-(c)

count for career-offender purposes.                U.S.S.G. § 2K2.1 cmt. n.10.

The larceny conviction here received no criminal history points

because    it    exceeded       the     Guidelines’      fifteen-year        counting

period.    See U.S.S.G. § 4A1.2(e).

           The record does not reveal whether the district court

relied on the larceny conviction.                On the one hand, Worksheet C

of the PSR assigns no criminal history points to the conviction.

J.A. 96.     On the other hand, the narrative portion of the PSR

                                           7
describing    the        underlying      felony      convictions       giving   rise   to

Leshen’s     § 922(g)(1)           disqualification            cites     the    larceny

conviction and the Kentucky conviction, but not the Pennsylvania

conviction.       J.A. 75.     At sentencing the district court remarked

that the larceny conviction “hasn’t actually been counted in

some of these calculations.”              J.A. 55.

             It     is    enough    to    say      that   the    conviction        cannot

increase Leshen’s base offense level, and that any such error

would be plain.           Such error would not affect the calculation of

Leshen’s    Guideline       range,      however,      unless    the     district   court

plainly erred in counting at least one of his other convictions

as a crime of violence.            We now address those offenses.

                                              B.

             The term “crime of violence” in U.S.S.G. § 2K2.1(a)

has   the    same    meaning       as    in    the    Career-Offender       Guideline.

U.S.S.G. § 2K2.1 cmt. n.1.                 The Career-Offender Guideline, in

turn, contains a two-pronged definition:

           The term “crime of violence” means any offense
      under federal or state law, punishable by imprisonment
      for a term exceeding one year, that –

           (1) has as an element the use, attempted use, or
      threatened use of physical force against the person of
      another, or

           (2) is burglary of a dwelling, arson, or
      extortion, involves use of explosives, or otherwise
      involves conduct that presents a serious potential
      risk of physical injury to another.

U.S.S.G. § 4B1.2(a).          The application note elaborates:
                                              8
           “Crime     of    violence”    includes    murder,
      manslaughter, kidnapping, aggravated assault, forcible
      sex offenses, robbery, arson, extortion, extortionate
      extension of credit, and burglary of a dwelling. Other
      offenses are included as “crimes of violence” if (A)
      that offense has as an element the use, attempted use,
      or threatened use of physical force against the person
      of another, or (B) the conduct set forth (i.e.,
      expressly charged) in the count of which the defendant
      was convicted involved use of explosives (including
      any explosive material or destructive device) or, by
      its nature, presented a serious potential risk of
      physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).

             Two   methodological    points      inform    whether   an   offense

constitutes a crime of violence.              First, we utilize the familiar

“categorical       approach,”   looking      only   to   the   elements   of   the

offense.     United States v. Seay, 553 F.3d 732, 737 (4th Cir.

2009).     Thus “we consider the offense generally, that is to say,

we examine it in terms of how the law defines the offense and

not in terms of how an individual offender might have committed

it on a particular occasion.”                Begay v. United States, 128 S.

Ct. 1581, 1584 (2008). 5         Second, we are guided by the “nearly

identical” and “materially indistinguishable” language defining

the   term   “violent    felony”    in    the    Armed    Career   Criminal    Act




      5
       We leave to the district court in the first instance
consideration of whether the decision in Sykes v. United States,
--- U.S.----, 131 S.Ct. 2267 (2011), bears on the issues
presented here.



                                         9
(ACCA). 6     United States v. Rivers, 595 F.3d 558, 560 n.1 (4th

Cir.   2010).       Our   “precedents   evaluating    the    ACCA     apply   with

equal force to U.S.S.G. § 4B1.2.”             United States v. Jarmon, 596

F.3d 228, 231 (4th Cir. 2010).

              We   hold   that   the   district    court    plainly    erred    by

counting       Leshen’s    convictions       for   third-degree        rape    and

aggravated indecent assault as crimes of violence.                  Although the

government bases its argument on the commentary, we begin with

the two prongs of the definition.

                                        1.

              It is clear enough that neither the Kentucky nor the

Pennsylvania offense has as an element the use, attempted use,

or threatened use of physical force.               “Physical force” as used

here means “violent force — that is, force capable of causing

physical pain or injury to another person.”                 Johnson v. United

States, 130 S. Ct. 1265, 1271 (2010).               A person commits third-

degree rape in Kentucky “when . . . (b) [b]eing twenty-one (21)
       6
           The ACCA provides that

       the term “violent felony” means any crime punishable
       by imprisonment for a term exceeding one year . . .
       that (i) has as an element the use, attempted use, or
       threatened use of physical force against the person of
       another; or (ii) is burglary, arson, or extortion,
       involves the use of explosives, or otherwise involves
       conduct that presents a serious potential risk of
       physical injury to another.

18 U.S.C. § 924(e)(2)(B).



                                        10
years old or more, he or she engages in sexual intercourse with

another person less than sixteen (16) years old.”                            Ky. Rev.

Stat. Ann. § 510.060.        Similarly, in Pennsylvania

       a person who engages in penetration, however slight,
       of the genitals or anus of a complainant with a part
       of the person’s body for any purpose other than good
       faith medical, hygienic or law enforcement procedures
       commits aggravated indecent assault if . . . (7) the
       complainant is less than 13 years of age; or (8) the
       complainant is less than 16 years of age and the
       person   is  four  or  more  years  older   than  the
       complainant and the persons are not married to each
       other.

18 Pa. Cons. Stat. Ann. § 3125.                    Because physical force is not

necessary under the Kentucky and Pennsylvania statutes, they do

not constitute crimes of violence under the first prong.                           Other

circuits, dealing with similar statutes, have reached the same

conclusion.       See, e.g., United States v. Wynn, 579 F.3d 567, 573

(6th Cir. 2009); United States v. Dennis, 551 F.3d 986, 989

(10th Cir. 2008).

            Bolstering our conclusion is that both Kentucky and

Pennsylvania have in place comprehensive schemes that categorize

some sex offenses as “forcible” and others as “nonforcible.”

Compare    Ky.     Rev.    Stat.   Ann.        §    510.040       (first-degree     rape

requires    “forcible      compulsion”)        with    id.    §    510.060   (no    such

requirement for third-degree rape); compare 18 Pa. Cons. Stat.

Ann.   §   3121    (rape    requires   “forcible          compulsion”)       with    id.

§ 3125 (no such requirement for aggravated indecent assault).


                                          11
Especially revealing are the states’ expansive definitions of

“forcible      compulsion.”            See    18    Pa.      Cons.       Stat.       Ann.     §    3101

(defining       term        as     “[c]ompulsion              by     use            of     physical,

intellectual,        moral,      emotional         or    psychological              force,    either

express or implied”); Van Dyke v. Commonwealth, 581 S.W.2d 563,

565 (Ky. 1979) (“‘Forcible compulsion’ may consist of physical

force or threats that do not cause substantial physical pain or

an     impairment      of     physical        condition.”).                Because          Leshen’s

offenses       did    not     satisfy        even       these      broad        definitions         of

“forcible,”      we     are      not   persuaded         that      the     offenses         have    as

elements the use of “violent” force.

               We have explained that sentencing courts must respect

state    schemes      that       distinguish        forcible         and       nonforcible          sex

offenses.       In United States v. Thornton, 554 F.3d 443 (4th Cir.

2008),    we    dealt    with      a   Virginia         law     making         it    a     felony    to

“carnally      know,     without       the    use       of    force,       a    child”       between

thirteen and fifteen years of age.                      Va. Code Ann. § 18.2-63.                     We

reasoned that “[a]lthough . . . a minor victim cannot give legal

consent to sexual activity, the victim’s inability to consent

does    not    erase     the      Code’s     distinction           between           forcible       and

nonforcible      sexual        offenses.”            Thornton,           554        F.3d    at     448.

Because “the Virginia General Assembly considers forcible and

nonforcible sexual offenses to present different risks that are

punishable      in     different       ways,”        we      rejected          the       attempt    to

                                               12
conflate the “nonforcible carnal knowledge offense . . . with

Virginia’s          forcible     sexual      offenses      through       the    concept     of

constructive force.”             Id.

               We    turn     next     to    the      second    prong.         Here   too   we

conclude that Leshen’s prior offenses plainly do not constitute

crimes of violence.              The second prong contains both a listing of

offenses       as    well   as    an   “otherwise”        clause    for    offenses       that

present a “serious potential risk of physical injury.”                                Because

the second prong does not expressly list sex offenses (whether

forcible or not) as crimes of violence, the offenses constitute

crimes    of    violence       only    if      they    fall    within    the    “otherwise”

clause.         Precedents        from      the    Supreme      Court    and    this   court

foreclose this argument.                 In Begay the Supreme Court held that

drunk driving is not a “violent felony” under the “otherwise”

clause of the ACCA.               128 S. Ct. at 1584.              The Court reasoned

that drunk driving “is simply too unlike the provision’s listed

examples for us to believe that Congress intended the provision

to cover it.”           Id.      The listing of offenses “illustrate[s] the

kinds of crimes that fall within the statute’s scope,” all of

which    “typically         involve      purposeful,          violent,    and    aggressive

conduct.”           Id. at 1584-86 (internal quotations and citations

omitted).           To constitute a violent felony, an offense must be

“roughly similar, in kind as well as in degree of risk posed, to

the examples themselves.”                Id.

                                                13
            We    applied     Begay     in    Thornton,      where        we   held    that

Virginia’s    carnal-knowledge          statute    is       not    a     violent     felony

under the same clause.          554 F.3d at 444.             We explained that it

is not enough merely that adult-minor sexual activity presents a

generalized risk of harm.             Id. at 448.           Instead, “the offense

must also be like those listed [in the second prong], both in

kind and degree of risk.”           Id. at 447.         Unlike violations of the

listed    offenses,      however,     violations       of    the        carnal-knowledge

statute do not “show an increased likelihood that the offender

is the kind of person who might deliberately point the gun and

pull the trigger.”            Id. at 449.         The risks associated with

violations of the carnal-knowledge statute “are not immediate or

violent in nature and do not inherently support an inference

that an offender will later commit a violent crime.”                             Id.    Nor

can   the   concept      of   constructive      force       “shoehorn          the   carnal

knowledge offense into the definition of a violent felony.”                             Id.

at 448.     The offense at issue in Thornton, we concluded, simply

was not sufficiently “violent” and “aggressive” to constitute a

violent felony.       Id. at 448-49.

            In light of these decisions we hold that the Kentucky

and Pennsylvania offenses plainly are not crimes of violence

under the “otherwise” clause.                 Both offenses closely resemble

the   carnal-knowledge        statute    in    Thornton:          all    three   statutes

criminalize      adult   sexual     contact     with    minors,          notwithstanding

                                         14
legally ineffective consent in-fact; all three statutes fall on

the nonforcible side of their respective states’ classification

schemes for sex offenses; and all three involve physical contact

of some kind.         Because the Kentucky and Pennsylvania offenses

are    for     nonforcible   offenses,        and     because   both   states   have

separate offenses in place to account for situations in which

force is present, we conclude that the “typical” violation of

the statutes here is not sufficiently violent and aggressive to

be a crime of violence.           See United States v. Terrell, 593 F.3d

1084, 1090-91 (9th Cir. 2010) (holding that simple rape is a

crime     of    violence     under     the     ACCA     because    physical     force

typically is present, unlike in statutory rape).

                                          2.

               The Government frames its argument in terms of the

commentary to the guidelines, arguing that Leshen’s convictions

constitute “forcible sex offenses” under the application note

and thereby are crimes of violence.                   This is so, we are told,

because      the   application     note      shows    that   the   Career-Offender

Guideline is broader than the ACCA, at least for sex offenses.

It follows, according to the government, that “[a]ny offense

that qualifies as a forcible sex offenses [sic] is categorically

a crime of violence.”            Appellee’s Br. at 17.              The government

relies on our decision in United States v. Pierce, 278 F.3d 282

(4th    Cir.    2002),     for   the   proposition       that     “taking   indecent

                                          15
liberties with a child is a forcible sex offense.”                      Appellee’s

Br. at 17-18.      This argument is unavailing.

            We observe at the outset that Guidelines commentary

“that interprets or explains a guideline is authoritative unless

it . . . is inconsistent with, or a plainly erroneous reading

of, that guideline.”           Stinson v. United States, 508 U.S. 36, 42

(1993); United States v. Payton, 28 F.3d 17, 19 (4th Cir. 1994).

When such an inconsistency arises “the Sentencing Reform Act

itself commands compliance with the guideline.”                       Stinson, 508

U.S. at 42.      Thus, we have recognized our “duty to harmonize the

U.S. Sentencing Guidelines and commentary.”                     United States v.

Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).

            It    is     clear    that   the       Kentucky     and   Pennsylvania

offenses do not fit within the commentary.                      To begin, we are

skeptical of the commentary’s utility because it was drafted

before Begay and thus does not consider the implications of that

decision.        Furthermore,      the   very      inclusion    of    the   modifier

“forcible”       demonstrates        that       the    Sentencing       Commission

contemplates      some   sex     offenses     as   nonforcible.        As   we   have

explained, the offenses here do not qualify as forcible.                          We

also find significant that in all other respects the commentary,

text, and the ACCA have identical coverage.                    All other offenses

listed in the commentary (1) plainly have as elements the use of

physical force (e.g., murder, kidnapping, aggravated assault),

                                         16
(2) are repetitions of offenses enumerated in the Guideline text

(e.g.,   burglary      of     a    dwelling,        arson,    extortion),      or     (3)   by

their terms present a serious potential risk of physical injury

that is similar in kind and degree to listed offenses (e.g.,

manslaughter, robbery).               But see United States v. Peterson, 629

F.3d 432 (4th Cir. 2011)(involuntary manslaughter under North

Carolina law not a “crime of violence” under the Career-Offender

Guideline). Given the otherwise parallel coverage of the three

sources, we find unconvincing the argument that the Commission

singled out sex offenses for broader coverage.

             What   is        more,     the     government       cannot,       simply       by

referring to the commentary and Pierce, escape the need to link

the commentary (and Leshen’s convictions) to either prong of the

definition.         “[F]orcible              sex      offenses”        does     not     have

freestanding definitional power.                    And while Pierce held that an

offense similar to the ones at issue here involves forcible sex,

it   never    explained        the     prong       under     which     the    term    falls.

Pierce’s     holding     is       grounded     in    the     concept    of    constructive

force, but that concept no longer satisfies either prong of the

definition.     Under the first prong constructive force is not the

same as physical force.               Cf. United States v. Chacon, 533 F.3d

250, 255-56 (4th Cir. 2008).                  As for the second prong, even the

government concedes in light of Begay and Thornton that Pierce

is no longer controlling.              Appellee’s Br. at 18. Furthermore, in

                                              17
light of the en banc court’s per curiam opinion in Vann, see

supra    n.2,       the   government’s        reliance      on    Pierce       is    plainly

unavailing.

               Nor are we swayed by the government’s invocation of

the definition of the term in U.S.S.G. § 2L1.2 (the Immigration

Guideline).           “For   purposes        of    [that]     subsection[,]          .   .    .

‘[c]rime       of     violence’    means      .    .   .    forcible         sex    offenses

(including where consent to the conduct is not given or is not

legally     valid,        such    as   where       consent       to    the    conduct        is

involuntary,         incompetent,      or    coerced),      statutory        rape,   sexual

abuse of a minor . . . .”).                       U.S.S.G. § 2L1.2 cmt. n.1(B).

Prior to the addition of the parenthetical clause, we held that

a Maryland statute, which prohibits sexual intercourse with a

victim “[w]ho is mentally defective, mentally incapacitated, or

physically helpless” when the defendant should be aware of the

disability, is a crime of violence.                    Chacon, 533 F.3d at 255.

We noted that “although the use of force necessarily involves a

degree    of    compulsion,       it   can    be    effected      through      ‘power’       or

‘pressure,’ which do not necessarily have physical components.”

Id. at 257.

               We have no difficulty distinguishing the Immigration

Guideline.          We begin with the obvious point that the Immigration

Guideline       is    broader     on   its     face    than      the    Career-Offender

Guideline.          The former enumerates statutory rape as a crime of

                                             18
violence,     while    the     latter    omits      it    altogether.              And    the

Commission,     when    it     added    the    parenthetical           clause       to    the

Immigration Guideline in 2008, declined to add the clause to the

Career-Offender       Guideline.        See    Amendments        to    the       Sentencing

Guidelines, Policy Statements, and Official Commentary at 29-30,

U.S.    Sentencing      Commission        (May      1,     2008),       available          at

http://www.ussc.gov/2008guid/finalamend08.pdf.                         These       features

demonstrate    that    the     Commission      is   aware       of    the    distinction

between forcible and nonforcible offenses and knew how to treat

them alike when it so sought.                  We agree that the Immigration

definition “has always expressly covered more sex crimes than

[the    Career-Offender]         definition,         and        there        is     nothing

irrational     about     the     Sentencing         Commission’s            decision       to

continue that approach with the 2008 amendment adding language

to [the Immigration Guideline] alone.”               Wynn, 579 F.3d at 575.

            Another significant difference is that the Immigration

Guideline defines “crime of violence” entirely in commentary,

while   the    Career-Offender          Guideline        sets    forth       a     complete

definition in the text.            Thus, in Chacon we did not face the

possibility     that    the     text     and    commentary           could       come    into

conflict.     Here, however, the commentary merely offers further

guidance on a term fully defined in the text.                         In interpreting

the Career-Offender Guideline we decline to create the tension



                                          19
between text and commentary that would result from treating the

Kentucky and Pennsylvania offenses as crimes of violence.

                                             3.

               We    next    determine      whether      the       error    affected     the

outcome of the sentence and whether our failure to correct it

would    “seriously         affect[]   the     fairness,       integrity,      or   public

reputation of judicial proceedings.”                     Puckett, 129 S. Ct. at

1429.     We answer both questions affirmatively.

               To prevail Leshen must show that the error “affected

the outcome of the district court proceedings.”                            United States

v. Olano, 507 U.S. 725, 734 (1993).                      For sentencing errors a

defendant “must establish that [the imposed] sentence was longer

than    that    to    which    he   would    otherwise        be    subject.”       United

States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc).

We have held that a defendant was entitled to resentencing when

sentenced under an erroneously calculated Guidelines range, even

when the sentence imposed was between the correct and erroneous

ranges.     United States v. McCrary, 887 F.2d 485, 489 (4th Cir.

1989).     This is because we “cannot confidently assume” that the

factors    influencing         a    specific      term   of    imprisonment         in   the

erroneous range necessarily would cause the court to select the

same term within the correct range.                  Id. at 489.           This principle

is just as valid after United States v. Booker, 543 U.S. 220

(2005).        After Booker “the Guidelines should be the starting

                                             20
point and the initial benchmark” for sentencing.                        Gall v. United

States, 552 U.S. 38, 49 (2007).                     From this starting point the

district    court    then    weighs       specific         factors    relevant    to   the

defendant    to     arrive      at    a    reasonably         appropriate       sentence.

United States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).

            We    are    confident        that      the    error     affected    Leshen’s

sentence.      The enhancement increased Leshen’s base offense level

from 17 to 23.          Even with his criminal history category now at

IV   (rather      than    III    as       at    his       initial    sentencing),      his

Guidelines range would be 37 to 46 months, 20 to 25 months

shorter than the range applied at his original sentencing (57 to

71 months).        See U.S.S.G. Ch. 5, Pt. A.                       While the district

court sentenced Leshen at the top of the Guidelines range, and

while the court did remark that the range was “pretty generous”

in light of Leshen’s record, in its very next breath the court

indicated it would stay within the Guidelines range.                        J.A. 56.

            Finally, we determine whether we ought to exercise our

discretion to correct the error.                    We have held that a sentence

to a term of supervised release 11 months longer than authorized

by   statute      seriously          affects        the      fairness     of     judicial

proceedings.        United States v. Maxwell, 285 F.3d 336, 342-43

(4th Cir. 2002).         In Maxwell we stated that “no court of justice

would knowingly require a man to endure significant restrictions

on his liberty as provided under supervised release for nearly a

                                               21
year longer than deserved.”           Id. at 343; cf. United States v.

Allen, 450 F.3d 565, 570 & n.4 (4th Cir. 2006) (sentence below

statutory minimum was plain error and warranted resentencing).

We exercise our discretion to correct the error here as well.

            Not    to    resentence        Leshen       would     be    even   more

“fundamentally unfair” than not to resentence the defendant in

Maxwell.    There the excess time was a mere 11 months, but here

the Guidelines range is 20 to 25 months shorter than his initial

sentence.       Furthermore, the restriction on liberty in Maxwell

was mere supervised release, but here it is incarceration.                         We

emphasize as well that the costs of remand are minimal.                    Whereas

noticing    a   trial   error   necessitates        a   new    trial,   noticing   a

sentencing error results in, at most, a remand for resentencing.

            The    government      cites    the     circumstances       underlying

Leshen’s convictions to oppose resentencing.                     See U.S. Br. at

27.    We decline the government’s invitation.                   As we have made

clear the district court is free to — and did — consider that

record in reaching a reasonable sentence.                     Leshen also has now

been sentenced in Kentucky for those very offenses, receiving a

total of ten years’ imprisonment to run consecutively to his

federal sentence.        We will not count that record for a third

time   to   deny   Leshen    the    benefit       of    a   properly    calculated

Guidelines range.



                                       22
                                    III.

             For the foregoing reasons, the judgment is vacated and

the   case   is   remanded   for   resentencing   proceedings   consistent

with this opinion.

                                                    VACATED AND REMANDED




                                     23
