United States v. Aguilar: Under 18 U.S.C. §§ 2244(a)(3) and 2246(3), Each Intentional Touching of an Enumerated Body Part Is a Separate “Unit of Prosecution” (No Merger for a Single Encounter)

Precedents Cited

1) Double Jeopardy, Multiplicity, and the “Unit of Prosecution” Framework

• Ohio v. Johnson — Cited for the baseline principle that the Double Jeopardy Clause protects against cumulative punishments for the same offense; the Aguilar court uses it as the constitutional anchor for multiplicity review.
• United States v. Benoit — Quoted for the proposition that multiplicity analysis turns on whether multiple convictions impose cumulative punishment for the “same offense,” and cited for the de novo standard of review.
• United States v. Elliott — The opinion’s central in-circuit precedent for unit-of-prosecution analysis, including:
  • de novo review of multiplicity claims,
  • the framing question: what facts did Congress intend to be separate “units” of prosecution,
  • the interpretive toolkit (text, structure, purpose, history, relationship to other statutes), and
  • the “grievous ambiguity or uncertainty” threshold for invoking lenity.
• United States v. McCullough, United States v. Johnson, and United States v. Jenkins — Used to define “multiplicity” and to explain why multiplicitous counts are “improper” when they risk multiple punishments for one offense (even if not fatal to an indictment).
• United States v. Maldonado-Passage and United States v. Rentz — Provide the definition of “unit of prosecution” as the “minimum amount of activity for which criminal liability attaches,” reinforcing that the inquiry is statutory (not factual intuition about how “continuous” the conduct felt).
• United States v. Graham and Blockburger v. United States — Supply the act-vs.-course-of-conduct test: if the statute prohibits individual acts, each act is separately punishable; if it prohibits a course of conduct, there may be only one penalty.
• United States v. Polouizzi — Cited (via Elliott) for the “units of prosecution” formulation in same-statute, multiple-count cases.

2) Statutory Interpretation Method and the Rule of Lenity

• United States v. Garcia-Limon — Cited for the interpretive starting point: begin with statutory text. The panel also noted supplemental briefing on Garcia-Limon’s impact, but ultimately used it in the conventional way—as support for text-first interpretation.
• Van Buren v. United States — Quoted (via Garcia-Limon) for the same text-first principle.
• Harbert v. Healthcare Servs. Grp., Inc. — Cited (via Elliott) for the broader interpretive toolkit beyond text (structure, purpose, history, relationship to other statutes).
• Muscarello v. United States — Cited (via Elliott) for the lenity standard: lenity applies only after ordinary tools leave a “grievous ambiguity or uncertainty.”
• Bell v. United States — Invoked for the caution that ambiguity about punishment should be resolved against converting a single transaction into multiple offenses; Aguilar distinguishes Bell by finding no such ambiguity in §§ 2244/2246.
• St. Francis Hosp., Inc. v. Becerra — Used for the grammatical inference that Congress’s use of the singular can be meaningful in statutory construction.

3) Persuasive Authority on Federal Sexual Abuse Statutes

• United States v. Two Elk — Eighth Circuit decision treating 18 U.S.C. § 2241(c) as a separate-act offense based on singular phrasing (“a sexual act”) and disjunctive structure of the statutory definition of “sexual act.” Aguilar treats Two Elk as persuasive support for reading similarly structured provisions as authorizing multiple counts.
• United States v. Hollow Horn Bear — Eighth Circuit decision applying “the same reasoning” to § 2244(a), emphasizing the absence of “course of conduct” language and the statute’s use of singular “contact.” Aguilar relies on Hollow Horn Bear as directly analogous persuasive authority for § 2244(a)(3) cases.

4) Sufficiency of the Evidence Standards and Intent Proof

• United States v. Garcia — Governs de novo review of sufficiency and the principle that the court does not weigh evidence or assess credibility; it asks whether any rational trier could find guilt beyond a reasonable doubt.
• United States v. Stepp and United States v. Gordon — Provide the “any rational trier of fact” articulation of the standard.
• United States v. Bowie and United States v. Hooks — Reinforce that both direct and circumstantial evidence, and reasonable inferences, may support a conviction.
• United States v. Rufai and Torres v. Mullin — Cited to emphasize that sufficiency turns on the “totality of the circumstances,” undermining attempts to demand a checklist of particular aggravating facts (e.g., victim asleep, rubbing).
• United States v. Xiang and United States v. Brown — Support the proposition that if a defendant testifies and is disbelieved, the jury may treat that denial as substantive evidence of guilt.
• United States v. Castillo — Cited by the defendant (not adopted by the court) for the argument that a mere touching, without more, may be insufficient to prove intent; Aguilar effectively distinguishes this argument by finding that the circumstances here permitted a sexual-intent inference.

Legal Reasoning

1) Defining the Unit of Prosecution: “Separate-Act” vs. “Course-of-Conduct”

Aguilar’s core double-jeopardy argument was factual: the touches were in “rapid succession” during one encounter, so there should be only one punishable offense. The court rejected that framing as inconsistent with unit-of-prosecution doctrine: the controlling question is Congress’s intended minimum punishable conduct, not how quickly the conduct occurred.

The panel expressly operationalized the act/course distinction by naming two categories: “separate-act offenses” (statutes that punish each act) and “course-of-conduct offenses” (statutes that punish a continuous course). If § 2244(a)(3) + § 2246(3) describe separate acts, then two different touches may yield two convictions without double jeopardy.

2) Textual Features of § 2246(3) that Drive the Holding

The court’s statutory interpretation is anchored in two textual/grammatical cues from the definition of “sexual contact” in 18 U.S.C. § 2246(3):

1. Singular phrasing: “the intentional touching” suggests a discrete act as the object of criminalization, rather than a pluralized set of touches.
2. Disjunctive list of protected body parts: “genitalia, anus, groin, breast, inner thigh, or buttocks” indicates that touching any one of these enumerated areas constitutes “sexual contact.” The court reads this structure to support the conclusion that each act of touching an enumerated body part may be treated as its own punishable unit.

Combining these cues, the court concludes that §§ 2244(a)(3) and 2246(3) reflect Congress’s intent to punish “discrete sexual contacts as separate criminal acts.”

3) Rejecting Lenity

Aguilar argued that, even if the statute could be read either way, the rule of lenity should require merger of the counts. The panel rejected lenity because it found no “grievous ambiguity or uncertainty” after applying ordinary interpretive tools. In other words, lenity was not treated as a tie-breaker for plausible competing readings; it was treated as an exceptional doctrine triggered only by persistent, serious uncertainty.

4) Intent Evidence Under § 2246(3)

On sufficiency, Aguilar challenged only the intent embedded in § 2246(3) (“intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”). The court held that intent could be inferred from:

• the nature and location of the touches (multiple intimate areas: buttocks, breasts, vagina),
• the circumstances (unlocking a door, lying behind the victim, beginning with a “back massage,” and then escalating to intimate touching),
• pattern evidence (testimony of another inappropriate touching incident relevant to infer sexual gratification intent during the charged incident), and
• the jury’s prerogative to disbelieve Aguilar’s denial, treating it as substantive evidence of guilt under the cited doctrine.

The panel also emphasized that sufficiency review does not compare facts to other cases as if certain “extra” features are required; it examines the totality of this record in the light most favorable to the government.

Impact

1) Charging and Sentencing Consequences in the Tenth Circuit

The opinion’s most concrete doctrinal effect is its unit-of-prosecution holding: prosecutors in the Tenth Circuit may charge separate § 2244(a)(3) counts for separate touches of different enumerated areas (e.g., genitalia and breast) occurring within a single encounter. This increases potential exposure to cumulative punishment (as occurred here, with consecutive sentences totaling 48 months).

2) Litigation of Multiplicity Claims Will Turn on Statutory Text, Not “Single Episode” Narratives

Aguilar makes it harder for defendants to argue that “rapid succession” touching within one incident must be treated as one offense. Post-Aguilar, the most viable multiplicity defenses will likely focus on: (a) whether the government has actually alleged and proved distinct touchings (rather than a single touch described in multiple ways), and (b) whether multiple counts are duplicative as a factual matter (same touch, same body part, same moment), not merely because they occurred during one episode.

3) Intent Proof: Victim Testimony and Circumstantial Context Remain Central

On intent, the case reinforces that juries may infer sexual intent from the combination of the touching’s location, the surrounding circumstances, and the absence of an innocent explanation—without requiring explicit sexual statements, nudity, penetration, or rubbing. The opinion thus supports prosecutions where the evidence is primarily testimonial, so long as the narrative supports a rational inference of sexual gratification or other prohibited intent.

4) Convergence with the Eighth Circuit

By relying on United States v. Two Elk and United States v. Hollow Horn Bear, Aguilar aligns the Tenth Circuit’s approach with the Eighth Circuit’s separate-act reading of the federal sexual-abuse statutory scheme—potentially reducing circuit friction on this question and strengthening predictability for multi-count charging decisions.