No Plain Error in Failing to Apply an Analogous Guideline to Oklahoma Child Abuse Offenses: Commentary on United States v. Bowen (10th Cir. 2025)

I. Introduction

The Tenth Circuit’s unpublished order and judgment in United States v. Bowen, No. 25‑7011 (10th Cir. Dec. 5, 2025), addresses a technically narrow but practically important question at the intersection of federal Indian Country jurisdiction, state child abuse statutes, and the federal Sentencing Guidelines.

The case arises out of a federal prosecution in the Eastern District of Oklahoma for child abuse in Indian Country under the Major Crimes Act, 18 U.S.C. §§ 1151, 1153, incorporating Oklahoma’s child abuse statute, Okla. Stat. tit. 21, § 843.5(A). At sentencing, the district court—without objection from the defense—accepted the government’s position that no Sentencing Guideline adequately covered the offense, and therefore sentenced directly under 18 U.S.C. § 3553(a) pursuant to U.S.S.G. § 2X5.1.

On appeal, the defendant argued that the district court should have used the federal aggravated assault guideline, U.S.S.G. § 2A2.2, as the “most analogous” guideline to the Oklahoma child abuse offense, and that failure to do so constituted plain error. The Tenth Circuit affirmed, holding that even assuming the district court erred, any such error was not “plain” because the law is not well-settled on whether § 2A2.2 analogously covers the offense and because there is inter-circuit and intra-circuit uncertainty about how federal assault law interacts with state child abuse provisions.

Although the decision is designated as non-precedential under Tenth Circuit Rule 32.1, it is important for at least three reasons:

It clarifies how stringent the “plain error” standard is when the alleged error concerns the selection (or non-selection) of an analogous sentencing guideline.
It underscores the unsettled nature of the relationship between federal assault statutes and state child abuse statutes in federal prosecutions, especially in Indian Country.
It provides practical lessons for defense counsel and prosecutors about preserving sentencing issues and about the risks of allowing a court to sentence outside the Guidelines framework under § 2X5.1.

II. Factual and Procedural Background

A. The Underlying Conduct and Charge

A two-year-old child was brought by his mother to an Oklahoma hospital, where physicians discovered:

a spiral fracture of the right humerus;
bruises on the child’s face; and
swelling under the scalp.

The Cherokee Nation investigated and concluded that the injuries occurred while the child was in the care of the mother’s boyfriend, defendant Brian Keith Bowen, Jr. Bowen told investigators that the child fell from a porch.

Federal prosecutors charged Bowen in the Eastern District of Oklahoma under the Major Crimes Act, 18 U.S.C. §§ 1151, 1153, with child abuse in Indian Country by reference to Oklahoma law—specifically, Okla. Stat. tit. 21, § 843.5(A). That statute criminalizes, among other things, willful and malicious harm to a child by a person with a duty of care. Bowen pleaded guilty.

B. Sentencing in the District Court

The critical sentencing issue was whether a specific Sentencing Guideline applied to this offense. The government argued in its sentencing memorandum that:

the Sentencing Commission had not promulgated a Guideline that directly covered the Oklahoma child abuse offense; and
no existing Guideline was sufficiently analogous, including the federal aggravated assault Guideline, U.S.S.G. § 2A2.2.

Under U.S.S.G. § 2X5.1 (“Other Offenses”), if “no guideline expressly has been promulgated” for the offense of conviction, the court must apply “the most analogous offense guideline.” If no sufficiently analogous guideline exists, the court sentences directly under 18 U.S.C. § 3553(a) without calculating an advisory guideline range.

Key procedural facts:

The government maintained that no Guideline, including § 2A2.2, was analogous to § 843.5(A).
The probation office agreed and recommended that the court sentence Bowen under § 3553(a) alone.
The presentence report concluded that the court could impose up to the Oklahoma statutory maximum—life imprisonment.
Bowen did not object to the conclusion that no Guideline applied or that no analogous Guideline existed.
Instead, he requested a 19-month, time-served sentence based on § 3553(a) factors.

The district court accepted the conclusion that the Guidelines did not apply and, proceeding directly under § 3553(a), sentenced Bowen to 48 months’ imprisonment—well below the statutory maximum but substantially above the defense request.

C. The Issue on Appeal

On appeal, Bowen raised a single issue:

Did the district court plainly err in determining that no Sentencing Guideline was analogous to the offense of conviction, rather than applying the aggravated assault Guideline, U.S.S.G. § 2A2.2?

Because Bowen did not raise this guideline-analogy argument below, the Tenth Circuit reviewed only for plain error.

III. Summary of the Opinion

The Tenth Circuit (Judges Carson, Kelly, and Rossman) affirmed Bowen’s sentence. The court:

Assumed, without deciding, that the district court may have erred in concluding that no Guideline was analogous to the Oklahoma child abuse offense.
Resolved the case at the second prong of the plain error test—whether any error was “plain.”
Held that any error was not “plain” because it was not “clear or obvious” under “well-settled” law:
- There is no binding Supreme Court or published Tenth Circuit authority deciding whether the aggravated assault Guideline is analogous to Oklahoma’s child abuse statute.
- The text of the Guidelines does not clearly resolve the issue.
- The Tenth Circuit’s unpublished decision in United States v. Shell suggests some support for Bowen’s view but is non-precedential and arises under a different legal framework (the Assimilative Crimes Act).
- Other circuits (Fifth and Ninth) have taken positions in tension with Shell on related assimilation questions, underscoring that the area is not settled.
Because the error, even if it existed, was not plain, the court did not reach the third and fourth prongs of plain error (effect on substantial rights and effect on the fairness, integrity, or public reputation of judicial proceedings).

The result: Bowen’s 48-month sentence was affirmed.

IV. Legal Framework and Key Concepts

A. Major Crimes Act and the Use of State Law

The Major Crimes Act, 18 U.S.C. §§ 1151, 1153, grants the federal government jurisdiction over certain serious offenses committed in Indian Country. When a listed offense is not fully defined by federal statute, courts often look to the law of the state where the offense occurred to provide the substantive definition.

Here, the federal government charged Bowen with child abuse in Indian Country by reference to Oklahoma’s child abuse statute, Okla. Stat. tit. 21, § 843.5(A). That state statute, in relevant part, covers:

willfully or maliciously harming (or threatening harm to) the health, safety, or welfare of a child;
willfully or maliciously failing to protect a child from such harm or threatened harm; and
willfully or maliciously injuring, torturing, or maiming a child.

Bowen was charged with the willful and malicious injury of the child.

B. Sentencing Guidelines, § 2X5.1, and Analogous Guidelines

The Sentencing Guidelines generally provide offense-specific provisions that generate an advisory sentencing range. But for some offenses, no guideline has been expressly promulgated.

U.S.S.G. § 2X5.1 (“Other Offenses”) provides:

If “no guideline expressly has been promulgated” for the offense, the court must apply “the most analogous offense guideline.”
If no sufficiently analogous guideline exists, the court must sentence in accordance with 18 U.S.C. § 3553(a), without anchoring the sentence to a Guideline range.

The commentary notes that many assimilative or state-derived offenses will not appear in the statutory index, and directs courts to decide case-by-case whether a sufficiently analogous guideline exists.

C. Plain Error Review

Because Bowen did not object to the district court’s determination that no analogous Guideline existed, his claim was reviewed for plain error under the familiar four-prong standard:

Error – Did the district court err?
Plainness – Was the error “plain,” i.e., clear or obvious at the time of appeal?
Substantial Rights – Did the error affect the defendant’s substantial rights (typically meaning it likely affected the outcome)?
Fairness and Integrity – Does the error seriously affect the fairness, integrity, or public reputation of judicial proceedings?

As the panel emphasized, an error is “plain” only if it is “contrary to well-settled law,” generally requiring that either the Supreme Court or the Tenth Circuit, in a published decision, has directly addressed the issue, or that the error flows clearly from the relevant text or structure. The absence of such authority “generally will close the door” on plain error, especially where other circuits are divided.

V. Detailed Analysis of the Court’s Reasoning

A. Competing Views of the Relationship Between Oklahoma Child Abuse and Federal Assault

1. The Government’s “Categorical” Approach

The government invoked what the opinion describes as the “categorical approach” from United States v. Clark, 981 F.3d 1154 (10th Cir. 2020). Under a categorical approach, a court compares the elements of the statutes, rather than the actual conduct in a particular case.

The government argued that:

Oklahoma’s child abuse statute encompasses multiple distinct offenses (harm, failure to protect, threatened harm, injury/torture/maiming).
The “injury” prong does not require the use of force—for example, a caretaker could willfully leave a child in a dangerous location, leading to injury, without directly using force upon the child.
By contrast, the federal assault statute, 18 U.S.C. § 113, and the aggravated assault guideline, § 2A2.2, are structured around the use or threatened use of force.
Because the Oklahoma statute can be violated by non-forceful conduct and extends to threatened harm and failures to protect, it sweeps more broadly than the federal assault statute.

Thus, the government contended that federal assault provisions were not truly “analogous” to Oklahoma child abuse, and that sentencing under § 3553(a) without a Guideline range was appropriate.

2. The Defendant’s Conduct-Focused Argument

Bowen rejected the categorical approach and insisted the court should look to his actual conduct. In his case, the offense was quintessentially assaultive: the child suffered serious physical injuries (a spiral fracture and bruising); Bowen’s explanation was that the child fell from a porch while in his care.

From that perspective, Bowen argued:

His conduct is functionally an assault on a child, even if charged under Oklahoma’s child abuse statute.
Congress has specifically addressed assaults, including assaults on minors, in 18 U.S.C. § 113.
It therefore follows that the federal aggravated assault guideline (§ 2A2.2) is the “most analogous” guideline for sentencing purposes.

In short, Bowen tried to translate what the Tenth Circuit had said about charging decisions in Shell (the government should charge assault instead of assimilated child abuse) into an argument about sentencing decisions (the court must use the aggravated assault guideline as the most analogous).

B. The Role of Shell and the ACA–MCA Distinction

1. The Tenth Circuit’s Unpublished Decision in United States v. Shell

Bowen’s central precedential support came from United States v. Shell, No. 23‑5086, 2024 WL 3455033 (10th Cir. July 18, 2024) (unpublished). In Shell:

The government charged the defendant with child abuse in Indian Country, again by incorporating the same Oklahoma statute.
Shell moved to dismiss, arguing that Oklahoma’s child abuse statute should not be assimilated under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13.
The Tenth Circuit, applying the Supreme Court’s decision in Lewis v. United States, 523 U.S. 155 (1998), concluded that assimilating Oklahoma’s assaultive child abuse provisions would impermissibly “rewrite” Congress’s detailed assault scheme in § 113.
The court held that federal assault provisions already covered Shell’s conduct, so there was no “gap” for state law to fill under the ACA, and reversed the conviction.

The Shell court emphasized that the key inquiry under Lewis is whether Congress intended federal law to occupy the relevant field and whether applying state law would undermine that intent.

2. Bowen’s Attempt to Use Shell at Sentencing

Bowen argued that Shell’s logic should control: if, as Shell suggests, the federal assault statute should have been used in charging conduct like his, then the federal aggravated assault guideline should be used in sentencing conduct like his. Put differently:

If there is no “gap” in substantive federal criminal law for assaultive child abuse, there should also be no “gap” in the Guidelines—the aggravated assault guideline is the natural fit.

3. The Tenth Circuit’s Response: Distinct Frameworks

The panel in Bowen acknowledged that Shell provides “some support” for Bowen’s position, but stressed that:

Shell is unpublished and therefore non-precedential under Tenth Circuit rules; it can be persuasive, but it does not establish “well-settled law.”
Shell addressed a different legal question under a different statute:
- Shell involved whether state law could be assimilated under the ACA, which turns on whether there is a “gap” in federal criminal law and whether state law would interfere with federal policy (the Lewis test).
- Bowen’s case involved how to select the “most analogous offense guideline” under § 2X5.1, a sentencing question, not a gap-filling question under the ACA.

The court expressly stated that “Shell’s framework for determining if a gap exists in federal law is distinct from the framework here,” and therefore does not directly govern the “analogous guideline” inquiry.

C. Inter‑Circuit Disagreement and the “Well‑Settled Law” Requirement

To evaluate plain error, the panel examined not only internal Tenth Circuit law but also how other circuits have treated analogous issues. Several cases cut against the thrust of Shell and, by extension, against Bowen’s position that the law was clear:

United States v. Scott, 83 F.4th 796 (9th Cir. 2023) – The Ninth Circuit upheld the assimilation, under the Major Crimes Act, of Montana’s felony child abuse or neglect statute, holding that it was distinct from conduct covered by § 113. This suggests a more expansive tolerance for using state child abuse statutes alongside federal assault statutes.
United States v. Brown, 608 F.2d 551 (5th Cir. 1979) – The Fifth Circuit approved the use of a state child abuse statute via the ACA, signaling that Congress had not fully occupied the field of child abuse offenses with federal assault statutes.
United States v. Fesler, 781 F.2d 384 (5th Cir. 1986) – Again under the ACA, the Fifth Circuit held that because Congress had not covered the specific acts of child abuse addressed by Texas law, the ACA properly assimilated the state child abuse statute.

These authorities demonstrate that:

Other circuits are more willing than Shell to treat state child abuse statutes as distinct from, and not precluded by, federal assault statutes.
This creates a doctrinal tension with Shell, making it difficult to say that the law is “well-settled” in favor of Bowen’s position.

Under Tenth Circuit plain-error doctrine (as summarized in cases like United States v. Koch, 978 F.3d 719 (10th Cir. 2020), United States v. Salas, 889 F.3d 681 (10th Cir. 2018), and United States v. Schneider, 704 F.3d 1287 (10th Cir. 2013)):

An error is “plain” only if it is clearly contrary to well-settled law.
In the ordinary case, that requires a Supreme Court or published circuit decision squarely addressing the issue.
The absence of such authority “generally will close the door” on plain error.
Inter-circuit disagreement and lack of settled circuit precedent strongly weigh against any finding of plain error.

Bowen’s claim failed at this second prong. Even assuming the district court should have used § 2A2.2 as the most analogous guideline, that proposition is far from “obvious” in the face of:

no Supreme Court decision on point;
no published Tenth Circuit decision squarely holding that federal aggravated assault is the most analogous guideline to Oklahoma’s child abuse statute;
the non-precedential status of Shell and its distinct statutory context; and
contrary or divergent indications from the Fifth and Ninth Circuits.

D. The Court’s Deliberate Choice Not to Decide the Underlying Guideline Question

It is significant that the Tenth Circuit expressly did not decide whether the district court’s choice under § 2X5.1 was correct. Instead, the panel:

treated the question of whether aggravated assault is analogous to Oklahoma child abuse as a “close one,”;
assumed arguendo that the district court erred; and
rested the decision entirely on the absence of plainness (the second prong of plain error).

This approach preserves the issue for a future case in which:

defense counsel properly objects at sentencing, and
the court can then review the choice of guideline de novo and decide whether aggravated assault is indeed the proper analog under § 2X5.1.

In that sense, Bowen is a procedural decision rather than a substantive resolution of the guideline-analogy problem.

VI. Complex Concepts Simplified

A. What Is “Plain Error” in Practical Terms?

Plain error review is intentionally demanding. In practice:

If you did not raise the issue in the trial court, you must show not just that the judge was wrong, but that the error was:
- clear under existing law at the time of appeal, and
- serious enough to affect your substantial rights and the fairness of the proceedings.
A legal question is almost never “plain” when:
- no Supreme Court or published circuit case has decided it, and
- other circuits are split or indicate different solutions.

Bowen’s case is textbook: he raised a novel sentencing-guideline question that reasonable jurists might answer differently. Under the Tenth Circuit’s own articulation, that kind of issue is not “plain.”

B. “Analogous” Sentencing Guidelines Under § 2X5.1

When a federal offense does not neatly match any guideline, § 2X5.1 instructs the court to:

Look across the Guidelines to find the “most analogous” offense guideline—one whose structure, elements, and harm are most similar to the offense of conviction.
If such a guideline exists, apply it (with § 3553(a) as usual).
If no sufficiently analogous guideline exists, sentence directly under § 3553(a) without a guideline range.

“Analogous” is a flexible concept; it is not defined in the Guidelines. Courts look to similarities in:

the nature of the prohibited conduct (e.g., assault, fraud, drug trafficking);
the required mental state (e.g., willful, reckless, negligent);
the type and degree of harm caused (e.g., bodily injury, financial loss); and
the policy judgments reflected in existing offense levels and enhancements.

C. Categorical vs. Conduct-Based Approaches

Two competing methods can be used in comparing statutes to guidelines:

Categorical (elements-based) approach:
- Focuses only on the statutory elements—what the government must prove—not the specific facts of what the defendant did.
- If a state statute criminalizes both assaultive and non-assaultive conduct, it may be too broad to be categorically treated as an “assault” offense for some purposes.
Conduct-based approach:
- Looks at the actual conduct in the case.
- If, in practice, the defendant’s conduct is clearly an assault, that may justify treating the offense as analogous to an assault guideline, even if the statute is broader.

In Bowen’s case, the government emphasized the categorical breadth of the Oklahoma statute; Bowen emphasized his actual assaultive conduct. The panel did not definitively choose between these approaches at the guideline-analogy stage, further highlighting the unsettled nature of the law.

D. Major Crimes Act vs. Assimilative Crimes Act

Although both statutes bring state law concepts into federal court, they do so differently:

Major Crimes Act (MCA), 18 U.S.C. § 1153:
- Applies to certain serious offenses in Indian Country.
- When federal law does not define the offense fully, courts often look to state law to supply definitions and elements.
Assimilative Crimes Act (ACA), 18 U.S.C. § 13:
- Applies in federal enclaves (e.g., military bases, federal facilities).
- Incorporates state criminal law to fill “gaps” where there is no applicable federal criminal statute.
- Under Lewis, courts must avoid using state law to “rewrite” federal statutes or interfere with federal policy where Congress has already legislated.

Shell was an ACA case and turned on the Lewis “gap” analysis; Bowen is a sentencing case under the MCA using state law definitions. The Tenth Circuit treats these as different enough that Shell does not compel a result on the guideline question.

VII. Likely Impact and Practical Implications

A. For Defense Counsel: Preserve the Guideline Issue

The most immediate lesson is practical: defense counsel should raise guideline-analogy arguments at sentencing whenever:

the government asserts that “no Guideline applies,” or
probation recommends sentencing under § 3553(a) alone via § 2X5.1.

Failing to object:

triggers plain error review, which is extremely difficult to satisfy; and
virtually ensures that appellate courts will affirm unless there is a pre-existing, clear, controlling precedent on point.

In cases involving child abuse or other state-derivative offenses in Indian Country, the aggravated assault guideline (§ 2A2.2) will often be at least colorably analogous. Even if a district court ultimately rejects the analogy, preserving the argument allows for de novo appellate review and a genuine opportunity to develop governing law.

B. For Prosecutors: Charging and Sentencing Strategy

For the government, Bowen confirms two important points:

Where defense counsel does not object to a § 2X5.1-driven decision to bypass the Guidelines, the resulting sentence is likely insulated from appellate reversal under the demanding plain error standard.
However, the underlying legal question—whether aggravated assault is the proper analog to child abuse—remains unresolved. In a properly preserved case, the Tenth Circuit may ultimately hold that § 2A2.2 or some related guideline must be used.

Prosecutors should therefore:

anticipate defense arguments based on Shell and on the breadth of § 113; and
be prepared to explain, with reference to statutory elements and policy, why child abuse statutes are distinct from, and not adequately captured by, federal assault provisions.

C. For Sentencing Courts: Navigating Uncertainty Under § 2X5.1

Bowen signals that district judges retain considerable discretion in making first-instance judgments about whether any guideline is “analogous” for § 2X5.1 purposes. However:

That discretion is not unbounded. In a future preserved case, the court of appeals may decide that aggravated assault is indeed analogous for Oklahoma child abuse offenses involving physical injury.
To promote transparency and facilitate review, sentencing judges should:
- identify and analyze candidate analogous guidelines (e.g., assault, domestic violence, other child injury provisions, if any);
- explain why any candidate guideline is or is not sufficiently analogous; and
- state whether § 3553(a) would independently justify the same sentence if no guideline applied.

D. Broader Doctrinal Impact: Plain Error and Evolving Sentencing Law

Doctrinally, Bowen reinforces a line of Tenth Circuit authority emphasizing that:

Plain error is a very narrow avenue of relief.
Novel or debatable questions of guideline interpretation are typically not “plain” errors absent clear precedent.
Inter-circuit disagreement—here, contrasting perspectives between the Tenth, Fifth, and Ninth Circuits on assimilating child abuse statutes—cuts decisively against finding an error “clear or obvious.”

In the longer term, as more cases like Bowen and Shell reach appellate courts, we may see:

greater clarification of how federal assault statutes and guidelines relate to state child abuse regimes;
potentially, amendments to the Guidelines to address child abuse offenses more directly; and
a more unified approach to sentencing child abuse in federal court, particularly in Indian Country and federal enclaves.

VIII. Conclusion

United States v. Bowen is, by its own terms, a non-precedential order and judgment. Yet its practical significance is substantial. The Tenth Circuit’s decision illustrates:

the power of the plain error standard to foreclose relief on novel sentencing questions not preserved below;
the unsettled legal terrain surrounding the use of state child abuse statutes and the federal aggravated assault guideline; and
the importance of understanding the distinct frameworks governing assimilative crimes under the ACA and sentencing-analogy determinations under § 2X5.1.

The court carefully sidesteps deciding whether aggravated assault is in fact the “most analogous” guideline to Oklahoma’s child abuse statute, explicitly labeling the issue “close” and resolving the case solely on the absence of “plainness.” This restraint leaves the underlying question open for a future case in which defense counsel properly objects at sentencing.

For practitioners, the central takeaway is clear: in cases involving assimilated or state-derived offenses—particularly in sensitive contexts like child abuse in Indian Country—sentencing issues must be raised and litigated in the district court. Otherwise, as in Bowen, even a potentially meritorious argument about the appropriate Guideline will founder on the shoals of the plain error doctrine.