concurring in part, dissenting in part.
I join the majority with respect to Part I, II, 111(2) and IV. However, the majority has determined that Scott Hayward’s 15-year sentence for sexual abuse, specifically attempted oral sex with a minor, was rendered in error, and that Hayward must be resentenced under the more lenient sexual contact guideline. The difference will be a reduction of about 13 years and 23 levels.16 The majority’s view is, essentially, that Hayward could not have attempted sexual abuse because 18 U.S.C. § 2243(a) and U.S.S.G § 2A3.1 require actual contact, skin-to-skin, and since Hayward had his *643pants on when he pushed Julie’s17 head toward his penis, he could not have attempted oral sex. In my view, whether Hayward had his pants on or not is of no consequence.18 I believe that under a plain reading of 18 U.S.C. § 2246(2)(A) and (B), a person can commit an attempted sexual abuse not only where there has been no physical contact of any kind, but, as determined by a number of our sister circuits, even where the person never meets the intended victim. I disagree that the District Court applied the wrong guideline and therefore I respectfully dissent in regard to Part III(l).
Before discussing the statutory language, I think it is important to review the factual record. The sexual act here was no chance encounter. Hayward was convicted, by a jury and after an exhaustive trial, of transporting Julie and Kelly in interstate and foreign commerce with the intent to engage in illicit sexual activity, in violation of 18 U.S.C. § 2423(a). The evidence made clear that Hayward cultivated a sexualized relationship with the cheerleaders under his tutelage and intended all along to be alone with the minors while in London. He coined sexually explicit nicknames for some of the girls, such as “Doggie Style” and “Penis” and made a practice of discussing sex with them. One cheerleader testified, for example,. that he re- ' counted stories of how female cheerleaders often had sex with male recruits in order to curry favor with them. Although parent chaperones were often present on team trips, Hayward dissuaded parents from accompanying them to London, assuring them that his wife and another coach, Larry Guerrero, would provide sufficient supervision. He did not tell the parents that Guerrero and Mrs. Hayward would only be joining the group later. Once in London, the-sexual innuendo became explicit. Hayward spent several late nights in-the girls’ rooms, playing drinking games, confiding in the girls about his sexual experiences and proclivities and inquiring into theirs. One game required the girls to “talk about what you’ve done, what you haven’t .done with someone, sexual positions, what you prefer,” and Hayward told the girls his daughter had been conceived on top of an. entertainment center in a hotel room. Hayward staged and judged an “abs and butt contest” between two of the girls, touching both girls’ abs and butts to determine, whose were tighter. According to testimony, he rewarded the winner by tossing her on the bed and “humping her.” Several girls testified that Hayward touched and caressed them throughout the-trip, and on more than one occasion would take a girl’s hand, shove it into his pocket and “say something like, oh, you’re, feeling my thing.” On the night in question, Hayward encouraged Julie to wear make-up and a revealing outfit and to keep her braces covered to disguise her age, so that she could join the group for their second night of drinking at a nightclub.
That night, in bed with three of the girls, Hayward removed Kelly’s shirt and fondled her, grabbed Julie’s head and, “slamm[ing][her] face into him,” forced her *644to Mss him. He then grabbed Tracy’s hand, put it on his leg and tried to force her to undo his pants. He grabbed the girls’ hands and made them rub his genitals and then grabbed the back of Tracy’s neck and “slammed her face into his, forcing her to Mss him.” Julie testified that at this point Hayward “took the back of my head again and started pushing my head down toward his penis. And I kicked the bed out because they were rolling beds and rolled down in between the beds ... absolutely terrified.” She explained: “I thought that maybe I would be able to get out, and I was holding onto the bed and I just said don’t touch me, just leave me here.” After Hayward lifted her back onto the bed, Julie fell away a second time, and Hayward lifted her up again. Julie testified that she could not remember how many times during this period Hayward pushed her head toward his penis. Finally, Hayward grabbed Tracy’s and Julie’s wrists, masturbating himself with their hands, saying “faster, faster, faster” until he ejaculated on them and appeared to fall asleep.
At trial, the jury heard the testimony of Kenneth Lanning, who described how acquaintance child molesters develop seduction strategies suited to their victims, gradually lowering their victims’ inhibitions about sex so as to solicit their complicity in their own victimization. Hayward’s plan for abusing his young victims was hatched long before his conduct in the bedroom and that conduct should therefore not be viewed in isolation.
My colleagues emphasize that “sexual act” as defined in § 2246 requires “contact between the mouth and the penis” and therefore there has to be “actual touching, a meeting of body surfaces.” Thus, the majority concludes that the act of pushing Julie’s head toward his “clothed” penis is not a substantial step taken towards commission of a sexual act. The majority’s repeated emphasis on Hayward’s state of undress is misplaced and misleading. I agree with my colleagues that a “sexual act” can only be accomplished by direct sMn-to-sMn contact and therefore clearly requires exposed sMn. However, it has never been alleged that Hayward successfully perpetrated a “sexual act” on his young victim. Rather, the District Court sentenced him under § 2A3.1 for an attempted sexual act. The law of attempt is well-settled. An attempt is comprised of two principal elements: (1) an intent to engage in criminal conduct and (2) a substantial step toward the commission of the substantive offense which corroborates that intent. See United States v. Cruz-Jiminez, 977 F.2d 95, 101-02 (3d Cir.1992). A “substantial step” has been defined as something more than mere preparation and less than the last act necessary before commission. U.S. v. Ledesma-Cuesta, 347 F.3d 527, 531 (3rd Cir.2003), citing United States v. Yousef, 327 F.3d 56, 134 (2d Cir.2003), accord United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980). It requires “some appreciable fragment of the crime in progress.” United States v. Hadley, 918 F.2d 848, 853 (9th Cir.1990) (internal quotations and citations omitted).
Hayward’s conduct here unquestionably satisfies that definition. Hayward was engaging in “mere preparation” when he took the girls to London on an unchaperoned trip, brought them to a nightclub where they became intoxicated, talked to them in increasingly explicit terms about sex and climbed into bed with them. Had he then just kissed and fondled the girls, undressed, and forced them to touch him, those acts alone would not have established his desire to have Julie perform oral sex on him. However, the District Court found, in an exhaustive, fifty-page sentencing memorandum, that Hayward went beyond that “preparation” and took a sub*645stantial step toward oral sex, making his desires plain, when, after trying to force Tracy to undress him, he grabbed Julie’s head and pushed it down toward his penis. When Hayward’s attempts were met with Julie’s resistance, he persisted, ignoring her protestations, dragging her back onto the bed by one arm and pushing her head down again. Thwarted, Hayward resigned himself to sexual gratification by other means.
My colleagues’ view, that Hayward’s pushing Julie’s head toward his penis did not constitute a substantial step toward achieving “contact between the mouth and the penis” is untenable. Even assuming he was still dressed at this point, the only thing standing in the way of successful completion of a sexual act was a layer of fabric; the only step remaining was for Hayward to unzip his fly with his free hand, or coax Tracy or Juhe to do it for him, as he had tried to earlier in the encounter. Hayward did not commit this last act necessary to complete the offense, perhaps because his use of force was met with Julie’s resistance. Of course, if he had succeeded, he would have committed sexual abuse, not attempted it. In my view, the majority essentially writes attempt out of the statute, requiring not only a substantial step towards the commission of the offense, but practically all the steps necessary. In other words, the majority requires that the path be clear of obstacles, and that skin-to-skin contact be imminent and certain.
The relevant cases from our sister circuits clearly dictate the application of the sexual abuse guideline in this case. In some of these cases, the sexual abuse guideline applied even when the victim and her would-be abuser never met. In United States v. Payne, the Sixth Circuit held that the mere act of arriving for an arranged meeting with a 14-year-old girl constituted a “substantial step” sufficient to find an attempted sexual act when the defendant had been engaging in explicit email conversations' with his future victim, and sentenced the defendant under U.S.S.G. § 2A3.1.19 77 Fed. Appx. 772, (6th Cir.2003). In United States, v. Miranda, after an explicit online chat with “clau-dial3x” in which having sex was discussed and a meeting time and place was established, Miranda was arrested when he stopped his car in front of claudial3x’s school and asked an undercover agent the name of the school. The Eleventh Circuit reversed with instructions to apply the sexual abuse, rather than the sexual contact, guideline because it was clear from the evidence that Miranda intended to engage in a sexual act with the minor. 348 F.3d 1322, 1326-29 (11th Cir.2003). See also, United States v. Panfil, 338 F.3d 1299 (11th Cir.2003) (upholding a sentence under U.S.S.G. 2A3.1 for a defendant who was arrested when he went to meet his intended victim whom he had met on the internet).
In United States v. Cryar, the Tenth Circuit upheld Cryar’s conviction and sentencing under U.S.S.G. § 2A3.1 when, after discussing his attraction to young girls with a business associate and expressing a desire to babysit that associate’s six-year-old sister-in-law, Cryar arrived at the Oklahoma zoo to pick up the young girl. 232 F.3d 1318 (10th Cir.2000). See also United States v. Butler 92 F.3d 960 (9th Cir.1996) (applying guideline for attempted sexual abuse when defendant was arrested *646entering the room where he believed children with whom he wanted to have sex were waiting); United States v. Hadley, 918 F.2d 848 (9th Cir.1990) (holding there was sufficient evidence to support a finding of attempted sexual abuse where defendant and victim remained clothed, because evidence made clear that defendant intended to engage in a sexual act with the victim.)
These cases make it clear that a defendant may be guilty of attempt even where significant steps necessary to carry out the substantive crime intended are not completed. See also United States v. Jackson, 560 F.2d 112, 120 (2d Cir.1977). If an attempted sexual abuse can be perpetrated when defendant and victim are not about to have skin-to-skin contact or are not even in the same room, as the Sixth, Ninth, Tenth and Eleventh Circuits have determined, it is clear that whether Hayward had his pants on or off is of no moment. The proper focus should be on the aggressor’s intent, not on how close, temporally or spatially, the aggressor comes to achieving skin-to-skin, mouth to penis contact. In other words, we should focus on criminal design, not possibility of performance. Here, Hayward’s intent was clear. He wanted to have Julie perform oral sex on him, and, in pushing her head toward his penis, he committed a substantial step in furtherance of that criminal design. Cruz-Jiminez, 977 F.2d at 102. The majority’s implication that Hayward’s intent could not be inferred from his actions because he was “trousered” is unsupportable. In the course of a premeditated and carefully orchestrated sexual encounter with three young girls in his care, with sexual desire evident and the ultimate goal of sexual gratification clearly in mind, Hayward forcefully pushed Julie’s head toward his penis. It is certainly reasonable to infer, as Tracy did, that Hayward intended for Julie “to give him oral sex” and that he would have completed the attempt by unzipping his pants, had Julie not kicked and pulled away. To me, Hayward’s conduct clearly constitutes attempted sexual abuse.
After engaging in a lengthy sentencing process, hearing the girls’ testimony at sentencing, meticulously reviewing the facts with a clear understanding of the guideline requirements, and giving due consideration to Hayward’s protestations that his pants were still on, the District Court found that “the evidence nonetheless establishes by clear and convincing evidence that, in starting to push Julie’s head toward his penis, Hayward was attempting to have her perform oral sex on him.” Accepting that court’s factual findings, as we must, I believe that the District Court correctly found that the record supports a sentence for attempted criminal sexual abuse under U.S.S.G. § 2A3.1.
For these reasons I would affirm the District Court’s decision in its entirety.
. Under U.S.S.G. § 2A3.1, Hayward’s base offense level was 27. His final adjusted offense level of 37 produces a sentencing range of 235 to 293 months. Because that range exceeds the statutory maximum of 15 years, he was sentenced by the District Court to 15 years imprisonment and a 3-year term of supervised release. Upon remand, Hayward will be sentenced under U.S.S.G § 2A3.4, with a base offense level of 10. His final adjusted offense level of 14, produces a guideline range of 18 to 24 months.
. I refer to the minor victims, identified as V-15 and V-18 in the majority opinion, by their first names, as is done in the parties' briefs.
. The girls' testimony is not clear or consistent on this point. There is some testimony in the record from which it may be inferred that his pants were in fact off. In testimony the court found fully credible, Tracy stated: He undid his own pants and pulled out his penis. At that point I know Julie-fell off the bed at one point, I am not sure whereabouts that was, and he pulled her back up onto the bed ... and at one point I know he tried to push Julie's head down to his penis to give him oral.sex. She pulled away.
. Although it is not relevant to the holding of either case, it is worth noting that the "victims'' in Payne, Miranda and Panfil were entirely fictional. The defendants were actually communicating with FBI agents posing as young girls, and their meetings were with undercover agents.