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, ORDER AND AMENDED Defendant-Appellant. OPINION

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 Amended October 6, 2023

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

Order; Opinion by Judge Hawkins 2 USA V. SCHEU

SUMMARY *

Criminal Law

The panel denied a petition for panel rehearing and filed an amended opinion affirming 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 noted that the weight which must be accorded to Sentencing Guidelines commentary, or whether the commentary may be considered at all after Kisor v. Wilkie, 139 S. Ct. 2400 (2019), has become a contentious issue across the circuits. But the panel did not need to delve into the issue in this case, having concluded that the Guideline provision itself is unambiguous and was properly applied by the district court. Interpreting the plain language of the text of § 2A3.1(b)(5), the panel had no difficulty concluding that 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, 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; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

ORDER

The Opinion filed on August 2, 2023, is replaced by the attached Amended Opinion. The petition for panel rehearing is denied. No further petitions for rehearing will be accepted. 4 USA V. SCHEU

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. 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 victi