The defendant's prior Ohio offense of gross sexual imposition is a tier III offense. Its elements are "comparable" to "abusive sexual contact under 18 U.S.C. § 2244 against a minor who has not attained the age of 13 years" under 42 U.S.C. § 169114)(A)(ii). The 10th says it's far from clear the categorical approach applies when determining tier levels, but uses that approach in this case because it works well enough to reject the defendant's contentions.

mit any of them) can trigger the “sex offender” PSF:engaging in sexual conduct with another person without obtaining permission (examples include forcible rape, sexual assault, or sexual battery);possession, distribution, or mailing of child pornography or related paraphernalia;any sexual contact with a minor or other person physically or mentally incapable of granting consent (examples include indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, and rape by administering a drug or sub- stance); andany sexual act or contact not identified above that is aggressive or abusive in nature (examples include rape by instrument, encouraging use of a minor for prostitution purposes, and incest).Application of this PSF is also required if a defendant’s current offense is referenced in the Sex Offender Notification and Registration Program Statement, or if it involves a violation of any of the following statutes: 18 U.S.C. § 2241, 18 U.S.C. § 2242, 18 U.S.C. § 2243, 18 U.S.C. § 2244, 18 U.S.C. § 2251, or 18 U.S.C. § 2252.Threat to Government Officials. A male or female inmate classified under the BOP Central Inmate Monitoring system as a “threat to government official” will be housed in at least a low security level institution unless this PSF has been waived.

This requirement is both jurisdictional and an element of the offense that should be submitted to the jury for decision.United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997)Omitting to include the element of force in the court's instruction to the jury in a case alleging abusive sexual contact by force (18 U.S.C. § 2244(a)(1)) was plain error. A new trial was required even though the defendant did not object at trial.