United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 7, 2023 No. 22-20171 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Thomas Douglas Butler,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-411-1

Before Ho, Oldham, and Douglas, Circuit Judges. James C. Ho, Circuit Judge: Under the federal Sentencing Guideline that governs the sexual exploitation of a minor, a two-level enhancement applies to a defendant’s base offense level if the underlying offense involves “the commission of a sexual act or sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A). The Application Notes to the Guideline expressly incorporate the definition of “sexual contact” that appears in 18 U.S.C. § 2246(3). And that statute defines “sexual contact” to mean “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or Case: 22-20171 Document: 00516705177 Page: 2 Date Filed: 04/07/2023

No. 22-20171

arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3) (emphasis added). Our circuit has not yet addressed whether “sexual contact” under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes an act of masturbation. But four other circuits have answered in the affirmative. See United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009) (“[T]he plain meaning of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating.”); United States v. Shafer, 573 F.3d 267, 273–74 (6th Cir. 2009) (“‘[S]exual contact,’ as defined by § 2246(3), includes self-masturbation.”); United States v. Pawlowski, 682 F.3d 205, 212 (3rd Cir. 2012) (“[T]he language of [§ 2246(3)] is unambiguous: it is clear that ‘of any person’ includes a defendant himself and does not require the touching of the victim.”); United States v. Raiburn, 20 F.4th 416, 422 (8th Cir. 2021) (“Following our sister circuits, we . . . hold that the plain meaning of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating.”) (quotations omitted). We see no reason to disagree with the consensus of our sister circuits, and Butler provides none. Accordingly, we join our sister circuits and hold that “sexual contact” in this context includes masturbation. We affirm. I. Thomas Douglas Butler initiated inappropriate relationships with two minor victims and coerced them into engaging in sexually explicit conduct. Butler began messaging the first minor victim (“MV1”), a fourteen- year-old girl, through the FaceFlow application and text messaging. He then drove from Houston to San Antonio to pick up MV1, and she snuck out from her house to travel with him to Houston. MV1’s mother contacted the San Antonio Police Department once she realized that MV1 was missing. The FBI obtained MV1’s mother’s consent to search MV1’s phone. In it, the FBI