UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-10044

Plaintiff-Appellee, D.C. No. 4:19-cr-02615- v. CKJ-DTF-1 JOSHUA WILLIAM SCHEU, OPINION Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted February 7, 2023 Phoenix, Arizona

Filed August 2, 2023

Before: Michael Daly Hawkins, Susan P. Graber, and Morgan Christen, Circuit Judges.

Opinion by Judge Hawkins 2 USA V. SCHEU

SUMMARY *

Criminal Law

The panel affirmed a sentence for two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2), & 1152, in a case in which the district court applied a four-level enhancement under U.S.S.G. § 2A3.1(b)(5) because “the victim was abducted.” The panel wrote that whether it evaluates the plain meaning of the term “abducted” as it appears in the Guideline itself, or considers “abducted” to be ambiguous and looks to the definition in the Guidelines’ commentary, U.S.S.G. § 1B1.1, cmt. n.1(A) (2004), it would reach the same conclusion: the victim was “abducted” when the defendant forced her from the roadside where he encountered her into a nearby cornfield to perpetrate the sexual assault.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. SCHEU 3

COUNSEL J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Federal Public Defender’s Office for the District of Arizona; Tucson, Arizona; for Defendant-Appellant. Shelley K.G. Clemens (argued) and Corey J. Mantei, Assistant United States Attorneys; Christina M. Cabanillas, Deputy Appellate Chief; Gary M. Restaino, United States Attorney, District of Arizona; Office of the United States Attorney; Tucson, Arizona; for Plaintiff-Appellee.

OPINION HAWKINS, Circuit Judge:

Defendant Joshua William Scheu appeals his sentence following a guilty plea to two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2) & 1152. He contends that the district court misapplied a sentencing enhancement for abduction and thus improperly added four levels to his sentencing range. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. FACTS AND PROCEDURAL HISTORY In October 2019, Scheu was indicted on two counts of aggravated sexual abuse of a child for sexual acts of violence committed against a fourteen-year-old Native American girl on the Gila River Indian Community outside of Phoenix, Arizona, in November 2004. Scheu pled guilty without the benefit of a plea agreement. 4 USA V. SCHEU

The Presentence Investigation Report calculated the sentence using the 2004 version of the Guidelines, applied a downward adjustment for acceptance of responsibility, and added a four-level enhancement because “the victim was abducted.” U.S. Sent’g Guidelines Manual (“U.S.S.G.”) § 2A3.1(b)(5). This enhancement increased both ends of the advisory sentencing range by more than six years. Scheu objected, arguing that the abduction enhancement should not be applied because there was no significant change in location during or prior to the assault. At the sentencing hearing, the government presented the testimony of a former Gila River Police Department detective who had investigated the case in 2004. 1 The detective testified that the victim and victim’s mother said that the victim ha