United States v. Rice , 8 F. App'x 214 ( 2001 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                             No. 00-4051
    THOMAS DALE RICE,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Western District of Virginia, at Roanoke.
    Samuel G. Wilson, Chief District Judge.
    (CR-99-28)
    Argued: December 8, 2000
    Decided: May 3, 2001
    Before WILLIAMS and TRAXLER, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Vacated and remanded by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN
    & SAYERS, P.C., Roanoke, Virginia, for Appellant. Anthony Paul
    Giorno, Assistant United States Attorney, Roanoke, Virginia, for
    Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
    Roanoke, Virginia, for Appellee.
    2                        UNITED STATES v. RICE
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Thomas Dale Rice was indicted for crossing the state line between
    West Virginia and Virginia for the purpose of engaging in a sexual
    act with a thirteen-year-old adolescent. See 
    18 U.S.C.A. § 2423
    (b)
    (West 2000). Rice pled guilty and was sentenced to a prison term of
    sixty-three months. He appeals his sentence on the ground that the
    district court erred in applying United States Sentencing Guidelines
    Manual (U.S.S.G.) § 2A3.1 rather than § 2A3.2. We are constrained
    to agree. We vacate Rice’s sentence and remand the matter to district
    court for further consideration.
    I.
    In February 1999, using the screen name "EP Mentor," Rice came
    into contact with a law enforcement investigator posing as "Matt" in
    an Internet "chat room." "Matt" told Rice that he was thirteen years
    old.1 Rice was fifty-eight years old at the time. "Matt" talked to Rice
    about questions "Matt" was having regarding his sexual orientation,
    and Rice offered to answer questions about homosexuality, described
    a variety of homosexual acts, and offered to meet "Matt" to perform
    certain acts of intercourse with "Matt." The Internet conversations
    between Rice and "Matt" progressed to the point that Rice revealed
    his real name and sent "Matt" pictures of himself, his car, and his
    home. He also gave "Matt" phone numbers where he could be reached
    during this time period. Eventually, after a number of e-mails and
    telephone calls, Rice, who lived in West Virginia, arranged to meet
    "Matt" at a motel in Bedford, Virginia, where the boy supposedly
    1
    There is some discrepancy in the record about whether the investiga-
    tor initially indicated that "Matt" was thirteen or fourteen years old, but
    Rice concedes that the investigator eventually told him that "Matt" was
    thirteen years old.
    UNITED STATES v. RICE                          3
    lived. On February 20, 1999, Rice drove from West Virginia to Bed-
    ford and registered at the motel under the name "E.P. Mentor." After
    making preparations for the sexual activity, Rice drove to a school
    where he had arranged to meet "Matt" and was there arrested.
    Rice pled guilty to violating 
    18 U.S.C.A. § 2423
    (b), which makes
    interstate travel with intent to engage in a sexual act with a juvenile
    a criminal offense:
    Travel with intent to engage in sexual act with a juvenile.—
    A person who travels in interstate commerce . . . for the pur-
    pose of engaging in any sexual act (as defined in section
    2246) with a person under 18 years of age that would be in
    violation of chapter 109A if the sexual act occurred in the
    special maritime and territorial jurisdiction of the United
    States shall be fined under this title, imprisoned not more
    than 15 years, or both.
    
    18 U.S.C.A. § 2423
    (b).2
    Rice was sentenced in January 2000. Under the 1998 version of the
    sentencing guidelines, which was then appropriate to use, the district
    court was faced with three potentially applicable sentencing guide-
    lines for Rice’s violation of section 2423(b): U.S.S.G. § 2A3.1,
    U.S.S.G. § 2A3.2, and U.S.S.G. § 2A3.3. See U.S.S.G. App. A. When
    more than one guideline is applicable for a particular statute, the sen-
    tencing court must "use the guideline most appropriate for the nature
    of the offense conduct charged in the count of which the defendant
    was convicted." U.S.S.G. App. A, intro. comment.; see U.S.S.G.
    § 1B1.2, comment. (n.1) (1998).
    Rice contended, as did the probation officer who prepared the pre-
    sentence report, that the most appropriate sentencing guideline for his
    offense was U.S.S.G. § 2A3.2, entitled "Criminal Sexual Abuse of a
    Minor (Statutory Rape) or Attempt to Commit Such Acts," which
    imposed a base offense level of 15. By contrast, the Government
    2
    Rice also pled guilty to using certain personal property in the commis-
    sion of the underlying offense and agreed to the forfeiture of the prop-
    erty. See 
    18 U.S.C.A. § 2253
     (West 2000).
    4                        UNITED STATES v. RICE
    asserted that the most appropriate guideline was U.S.S.G. § 2A3.1 —
    "Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse"
    — which fixed a more substantial base offense level of 27.
    The district court agreed with the government that U.S.S.G.
    § 2A3.1 was the proper guideline. The district court observed that
    § 2A3.2 was "analogous to simple statutory rape." J.A. 53. However,
    the district court concluded that Rice’s conduct, if successful, "would
    not have been simple statutory rape" but "would have been more anal-
    ogous to sexual abuse." J.A. 53. The court based this conclusion on
    the age disparity between Rice and "Matt" as well as the supposed
    immaturity and naivety of the ostensible victim. Accordingly, the dis-
    trict court applied U.S.S.G. § 2A3.1 in determining Rice’s sentence
    and imposed a term of 63 months.
    II.
    We review the sentencing court’s selection of the appropriate
    guideline de novo. See United States v. Davis, 
    202 F.3d 212
    , 218 (4th
    Cir.), cert. denied, 
    120 S. Ct. 2675
     (2000). Our task is simply to select
    the most appropriate guideline for the nature of the offense by "com-
    par[ing] the guideline texts with the charged misconduct." United
    States v. Lambert, 
    994 F.2d 1088
    , 1092 (4th Cir. 1993). When a
    defendant is to be sentenced for a crime such as Rice’s where the gra-
    vamen of the offense is crossing a state line with intent to commit one
    of several defined crimes, we hold that in choosing between allowable
    guidelines sections the court should use the guideline for the offense
    that the court reasonably finds, based upon all the facts and circum-
    stances, would have been committed if the defendant’s efforts had
    continued to fruition. With this principle in mind, we review the issue
    before us.
    The district court selected the criminal sexual abuse guideline set
    forth in U.S.S.G. § 2A3.1. This guideline was drafted to cover con-
    duct prohibited by 
    18 U.S.C.A. §§ 2241
     and 2242 (West 2000).
    Broadly speaking, sections 2241 ("Aggravated sexual abuse") and
    2242 ("Sexual abuse") criminalize conduct in which the victim,
    regardless of his or her age, has been coerced into sexual activity by
    force or threats, or conduct in which a person has engaged in sexual
    activity with an incapacitated victim. See 
    18 U.S.C.A. §§ 2241
    , 2242.
    UNITED STATES v. RICE                         5
    Section 2241 covers sexual abuse under aggravated circumstances
    that unquestionably are not present in this case, including the actual
    application of force or the use of death threats against the victim. See
    
    18 U.S.C.A. § 2241
    (a).
    Section 2242 is likewise inapplicable to Rice’s anticipated miscon-
    duct. Section 2242 provides:
    Whoever, in the special maritime and territorial jurisdiction
    of the United States or in a Federal prison, knowingly—
    (1) causes another person to engage in a sexual act by
    threatening or placing that other person in fear (other than
    by threatening or placing that other person in fear that any
    person will be subjected to death, serious bodily injury, or
    kidnaping); or
    (2) engages in a sexual act with another person if that
    other person is—
    (A) incapable of appraising the nature of the con-
    duct; or
    (B) physically incapable of declining participation
    in, or communicating unwillingness to engage in,
    that sexual act;
    or attempts to do so, shall be fined under this title, impris-
    oned not more than 20 years, or both.
    
    18 U.S.C.A. § 2242
    . We find nothing in the indictment or the record
    of Rice’s guilty plea that convinces us that Rice threatened "Matt" or
    attempted to place him in fear or otherwise overcome his will such
    that the intended sexual encounter would have been nonconsensual.3
    3
    Likewise, Rice’s charged misconduct simply does not indicate that
    Rice attempted to employ deception and "psychological force" in per-
    suading "Matt" to agree to a rendezvous. The Government argues that
    Rice applied "psychological force" by telling "Matt" that Rice was a "fa-
    6                         UNITED STATES v. RICE
    Rice’s offense conduct, therefore, fits better within the attempted
    statutory rape guideline — U.S.S.G. § 2A3.2. This guideline specifi-
    cally refers to the federal statute criminalizing sexual abuse of a
    minor, 
    18 U.S.C.A. § 2243
    (a) (West 2000), which makes it a crime
    to "knowingly engage[ ] [or attempt to engage] in a sexual act with
    another person who— (1) has attained the age of 12 years but has not
    attained the age of 16 years; and (2) is at least four years younger than
    the person so engaging." 
    18 U.S.C.A. § 2243
    (a). The conduct pro-
    scribed by this provision would be consensual but for the age of the
    victim. Rice’s plan falls within this guideline more comfortably than
    the criminal sexual abuse guideline. Despite the offensive nature of
    Rice’s proposal, he never threatened or attempted to coerce "Matt"
    and there is nothing before us indicating that he intended to do so.
    Rice was also forthcoming about his age, his own identity, and the
    conduct he proposed. There was no secret scheme, so far as the record
    goes, that Rice concealed from "Matt." Thus, we are unable to say
    that the proposed encounter would not have been consensual.
    Moreover, the Government’s position leads to an unlikely result.
    On this record, had Rice actually carried out his plan to completion,
    his conduct could not have constituted sexual abuse under section
    2242, which would have required Rice to have threatened "Matt" or
    placed him in fear, unless "Matt" was "incapable of appraising the
    nature of the conduct." 
    18 U.S.C.A. § 2242
    (2)(A). The factual basis
    for Rice’s plea simply does not allow us to conclude without exces-
    ther figure" who could not only instruct "Matt" in sexual matters but
    could also provide exciting opportunities for "Matt" to participate in vari-
    ous activities that would interest a thirteen-year-old boy. None of this
    evidence, however, was charged in the indictment or put into the record
    during Rice’s guilty plea. Thus, it would be inappropriate to consider this
    evidence in the initial selection of the proper guideline. See Lambert, 
    994 F.2d at 1092
     (explaining that "selection of the appropriate sentencing
    guideline must turn . . . on the perceived similarity of the crime charged
    in the indictment and the guideline ultimately selected"); U.S.S.G.
    § 1B1.2 comment. (backg’d) ("Where a stipulation . . . made between the
    parties on the record during a plea proceeding specifically establishes
    facts that prove a more serious offense . . . than the offense [charged in
    the indictment], the court is to apply the guideline most applicable to the
    more serious offense.").
    UNITED STATES v. RICE                         7
    sive speculation that "Matt" was incapable of understanding what
    Rice was proposing. Rice’s proposed conduct did not rise to the level
    of attempted sexual abuse but would have instead, if completed, con-
    stituted the crime of statutory rape. Therefore, U.S.S.G. § 2A3.2 is the
    applicable guideline in this case.
    We hasten to add, however, that the factors identified by the dis-
    trict court — such as the ostensible victim’s tender years and the age
    disparity between the two, as well as the use of the Internet — may
    indeed make Rice’s offense different from the run-of-the-mill statu-
    tory rape and remove this case from the heartland of cases sentenced
    under U.S.S.G. § 2A3.2. Although the district court suggested it
    would depart upward if we determined U.S.S.G. § 2A3.2 was the
    proper guideline, it did not in fact depart or follow the procedure out-
    lined in Koon v. United States, 
    518 U.S. 81
     (1996). Accordingly, that
    issue is not currently before us.
    We also reject the Government’s argument that statements in the
    Background Commentaries dictate a different result. The Government
    first refers to language appended to U.S.S.G. § 2A3.1 which states:
    "Sexual offenses addressed in this section are crimes of violence."
    U.S.S.G. § 2A3.1 comment. (backg’d) (1998). From this the Govern-
    ment argues that Rice’s proposed conduct would have been a crime
    of violence and hence covered by § 2A3.1 only. The Government
    points to the fact that Rice was much older than the purported victim
    and argues that his conduct presented a substantial risk of physical
    harm and a substantial risk that, during the rendezvous, Rice would
    end up employing physical force to ensure "Matt’s" compliance.
    Given the complete disclosures made in this case, we are not comfort-
    able with this degree of speculation. Simply as a matter of logic, it
    seems to us the same risks identified by the Government inhere in
    conduct that violates section 2243(a) even if there is no extreme age
    disparity.
    Additionally, the Background Commentary to U.S.S.G. § 2A3.1
    provides as follows: "Any criminal sexual abuse with a child less than
    twelve years of age, regardless of ‘consent,’ is governed by § 2A3.1."
    The government’s argument implies that, even absent sufficient indi-
    cia of violence or force, "Matt’s" young age — thirteen — renders
    § 2A3.1 applicable. Were we to agree, we would necessarily adopt a
    8                        UNITED STATES v. RICE
    categorical rule mandating the application of § 2A3.1 instead of
    § 2A3.2 when the contemplated sexual offense involves a thirteen
    year old victim. Given that the Guidelines currently provide for such
    a categorical rule with respect to victims who are under the age of
    twelve, we decline to extend the rule to thirteen year old victims.
    Second, the Government argues that the Background Commentary
    to U.S.S.G. § 2A3.2 controls our decision. It reads in toto as follows:
    "This section applies to sexual acts that would be lawful but for the
    age of the victim. It is assumed that at least a four-year age difference
    exists between the victim and the defendant, as specified in 
    18 U.S.C. § 2243
    (a). An enhancement is provided for a defendant who victim-
    izes a minor under his supervision or care." The Government directs
    our attention to the first sentence and asserts that the test of lawful-
    ness should be under state law. Because Virginia outlaws the particu-
    lar sexual acts Rice proposed, the Government believes U.S.S.G.
    § 2A3.2 should be excluded from consideration.
    We do not accept the Government’s argument. The statute under
    which the defendant was prosecuted expressly requires that the sexual
    act intended be one as defined by federal law, and prosecutable as
    well as a federal offense:
    A person who travels in interstate commerce . . . for the pur-
    pose of engaging in any sexual act (as defined in section
    2246) with a person under 18 years of age that would be in
    violation of chapter 109A if the sexual act occurred in the
    special maritime and territorial jurisdiction of the United
    States shall be fined under this title, imprisoned not more
    than 15 years, or both.
    
    18 U.S.C.A. § 2423
    (b) (emphasis added). Given these statutory
    requirements, we decline to pull a sentence out of the Background
    Commentary to impose another layer of consideration that would be
    based on the vagaries of state laws regulating sexual activities.
    Indeed, to do so would be inconsistent with the policies underlying
    the Sentencing Guidelines. A primary Congressional aim in establish-
    ing the Sentencing Guidelines was the promotion of "reasonable uni-
    formity in sentencing by narrowing the wide disparity in sentences
    imposed for similar criminal offenses committed by similar offend-
    UNITED STATES v. RICE                          9
    ers." U.S.S.G. Ch. 1 Pt. A, p.s. Although we recognize that the Sen-
    tencing Guidelines direct us to refer to state law on occasion, see, e.g.,
    U.S.S.G. § 4B1.2 (defining "crime of violence" to include "offense[s]
    under federal or state law"), we should read the Guidelines with fed-
    eral law in mind unless specifically instructed otherwise. See United
    States v. Reed, 
    94 F.3d 341
    , 344 (7th Cir. 1996) (explaining that
    "[l]ike any other federal statute, the Guidelines must be interpreted in
    accordance with federal law, even when those Guidelines refer to
    some event occurring in state court" and noting that the Guidelines
    section at issue contained "[n]othing . . . suggest[ing] that [the court]
    should look to state law").
    III.
    In sum, we conclude that U.S.S.G. § 2A3.2, the statutory rape
    guideline, is the most analogous guideline for Rice’s offense. Accord-
    ingly, we vacate Rice’s sentence and remand for the sentencing court
    to apply that guideline and for further consideration, including
    whether an upward departure would be appropriate.
    VACATED AND REMANDED
    

Document Info

Docket Number: 00-4051

Citation Numbers: 8 F. App'x 214

Judges: Hamilton, Per Curiam, Traxler, Williams

Filed Date: 5/3/2001

Precedential Status: Non-Precedential

Modified Date: 8/6/2023