dissenting:
■ Contrary to Supreme Court precedent, the Federal Rules of Criminal Procedure, and the prior decisions of this Court, the majority elevates a simple miscitation to a constructive amendment of the indictment. Application of the proper standard dictates that the conviction below be affirmed. I, therefore, respectfully dissent.
*824I.
Contrary to the conclusion drawn by the majority, there was no violation of the Grand Jury Clause. See U.S. Const, amend. V. The grand jury charged in Count Three that Downer “intentionally touch[ed], not through the clothing, [a seven-year old child’s] genitalia,” in violation of 18 U.S.C.A. § 2241(c). That the Third Count of the indictment makes a case of abusive sexual contact, within the meaning of 18 U.S.C.A. § 2244, is beyond dispute. Thus, despite the contentions of the majority, the conduct alleged in Count Three of the indictment (and for which Downer was convicted) was a crime during the summer of 1992. As a result, this case turns on whether the citation of the wrong statute in the indictment mandates the reversal of a criminal conviction. It is well established that where, as here, the defendant was not prejudiced by the erroneously cited statute, the conviction must be affirmed.
In Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509 (1897), the Government intentionally indicted the defendant with violating § 3169 of the Revised Statutes. Although the Supreme Court concluded that the defendant’s conduct was not proscribed by that statute, it nevertheless found that the indictment was valid because the defendant’s conduct was prohibited by § 5481. Writing for the Court, the first Justice Harlan noted:
It is wholly immaterial what statute was in the mind of the district attorney when he drew the indictment, if the charges made are embraced by some statute in force.' The indorsement on the margin of the indictment constitutes no part of the indictment, and does not add to or weaken the legal force of its averments. We must look to the indictment itself, and, if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute.
Id. at 389,18 S.Ct. at 94.
Similarly, in United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941), the defendants denied that their conduct violated the statute under which they were indicted. Even if true, the Court found the defendants’ argument to be without merit. Writing for the Court, Justice Frankfurter gave the following explanation for its ruling:
In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment, but it may nevertheless come within the terms of another statute.
Id. at 229, 61 S.Ct. at 464.
Rule 7 of the Federal Rules of Criminal Procedure has codified the holdings of Williams and Hutcheson. See Fed.R.Crim.P. 7(e)(3) advisory committee’s note. Under Rule 7(c), a statutory miscitation in an indictment is harmless error and cannot be grounds for reversing the conviction unless the defendant is misled by the erroneous reference and prejudiced thereby. See Fed.R.Crim.P. 7(c)(3). Accordingly, “[a] conviction may be sustained on the basis of a statute or regulation other than that cited [in the indictment].” Fed.R.Crim.P. 7(c)(3) advisory committee’s note.
In United States v. Massuet, 851 F.2d 111 (4th Cir.1988), we applied Rule 7(c) to an indictment virtually indistinguishable from the indictment in the instant case. In Mas-suet, the Government intentionally indicted the defendants with violating 21 U.S.C.A. § 959(b)(2). Although we concluded that the defendants could not be sentenced for violating that section, we nevertheless found that the indictment was valid because the defendants’ conduct was' prohibited by 21 U.S.C.A. § 841(a)(1). Id. at 115. In so holding, we specifically held that Rule 7(c)(3) was not limited to unintentional clerical errors. See id. at 116. Rather, we held that Rule 7(c)(3) applies even in cases where “the prosecutor intentionally cite[s] an inappropriate statute,” so long as “an appropriate statute proscribes the same] conduct charged in the indictment.” Id.
As in Williams, Hutcheson, and Massuet, the prosecutor below intentionally cited an *825inappropriate statute, i.e., 18 U.S.C.A. § 2241(c). Also like these three cases, an appropriate statute proscribes the very conduct charged in the indictment, re., 18 U.S.C.A. § 2244.5 As such, the indictment complied with the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 7(c)(1). In particular, the indictment informed Downer of the essential facts constituting the offense charged. Consequently, citation to § 2241(c) did not prejudice Downer or, more importantly, invalidate the prosecution. See Williams, 168 U.S. at 389, 18 S.Ct. at 94; Fed.R.Crim.P. 7(c)(3).
II.
So long as the conduct charged in the indictment constituted a crime at the time the offense was committed, as was the case here, it is well established that the district court should preserve the jury’s verdict by simply sentencing the defendant under the proper statute. See Massuet, 851 F.2d at 116 (noting “that the proper procedure for dealing with the problem of the erroneously cited statute would be to remand the case for resentencing under the proper statute”). Because the majority ignores this well, established rule, I dissent.
. Downer actually concedes that 18 U.S.C.A. § 2244 is a lesser included offense of 18 U.S.C.A. § 2241. See Appellant’s Br. at 38 (citing United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991); United States v. Torres, 937 F.2d 1469 (9th Cir.1991); United States v. Demarias, 876 F.2d 674, 676 (8th Cir.1989)); see also United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.1991). Thus, by convicting Downer of violating § 2241(c), the jury found all of the elements necessary to establish his guilt for violating § 2244. Of équal importance, Downer was on notice of the essential elements' of the offense with- which he was ultimately convicted. See Schmuck v. United States, 489 U.S. 705, 718, 109 S.Ct. 1443, 1451-52, 103 L.Ed.2d 734 (1989) (noting that a defendant is always on notice that he may be convicted of a lesser included offense of any offense charged in the indictment).