UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4212

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY DONALD STACY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever III,

District Judge. (05:06-cr-00013-D)

Argued: February 1, 2008 Decided: March 12, 2008

Before MICHAEL and SHEDD, Circuit Judges, and Liam O’GRADY, United

States District Judge for the Eastern District of Virginia, sitting

by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Joseph Harris Craven, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret

Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal

Public Defender, Raleigh, North Carolina, for Appellant. George E.

B. Holding, United States Attorney, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Stacy’s adjusted offense level was a 42, comprised of a base

offense level of 22, 23 levels of enhancements, less a three level

reduction for acceptance of responsibility. Stacy was a criminal

history category I, therefore the applicable guideline custody

range was 360 months to life in prison. U.S.S.G. ch. 5, pt. A,

introductory cmt. (2007). 

2

PER CURIAM:

Larry Stacy plead guilty to a five count indictment charging

him with transmission of child pornography in violation of 18

U.S.C. § 2252(a)(1) (Count 1), receipt of child pornography in

violation of 18 U.S.C. § 2252(a)(2) (Count 2), possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3),

transportation of obscene matters over the Internet in violation of

18 U.S.C. § 1462 (Count 4), and transportation of obscene matters

for sale or distribution in violation of 18 U.S.C. § 1465 (Count

5), and was sentenced to 360 months in prison.1 On appeal, Stacy

argues that the district court improperly imposed a five-point

offense level enhancement pursuant to the U.S. Sentencing

Guidelines Manual § 2G2.2(b)(5), for engaging in a pattern of

activity involving the sexual abuse or exploitation of a minor.

Finding no error, we affirm. 

I.

During an Immigration and Customs Enforcement investigation of

trafficking of child pornography via the Internet in 2005, agents

obtained and executed search warrants at Stacy’s home and
3

workplace. Forensic examination of the items seized revealed 838

images and 74 video files depicting child pornography of male and

female children between the ages of 8 months and 14 years. The

investigation also revealed a large number of graphic, explicit,

and obscene conversations via an Internet instant message system

between Stacy and a variety of individuals that discussed Stacy’s

desire and attempts to sexually abuse minor children. 

The Court found within those electronic communications,

language constituting substantial steps toward the commission of

the underlying offense and as a result determined that Stacy

attempted to engage in two or more acts involving the sexual abuse

or exploitation of a minor.

At sentencing the district court therefore imposed, over

Stacy’s objection, a five-point enhancement for engaging in a

pattern of activity involving the sexual abuse or exploitation of

a minor pursuant to the U.S.S.G. § 2G2.2(b)(5). 

II.

We review sentencing enhancements on a mixed standard of

review: the findings of fact are subject to a clearly erroneous

standard, and the court’s interpretation of the sentencing

guidelines is reviewed de novo. See United States v. Moreland, 437

F.3d 424, 433 (4th Cir. 2006); United States v. Jones, 308 F.3d

425, 427 (4th Cir. 2002).
2

Sexual abuse or exploitation is defined by the Sentencing

Guidelines in relevant part, as conduct described in 18 U.S.C. §

2242(b) which provides:

Whoever, using the mail or any facility or means of

interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United

States knowingly persuades, induces, entices, or coerces

any individual who has not attained the age of 18 years,

to engage in prostitution or any sexual activity for

which any person can be charged with a criminal offense,

or attempts to do so, shall be fined under this title and

imprisoned for not less than 10 years or for life. 18

U.S.C. § 2242 (2006)(emphasis added).

4

III.

If a defendant is engaged in a pattern of activity involving

the sexual abuse or exploitation of a minor2

, § 2G2.2(b)(5) of the

Sentencing Guidelines provides for a five-point enhancement to the

base level offense. U.S.S.G. § 2G2.2(b)(5). The enhancement

applies if the district court finds a “pattern of activity”, which

the Sentencing Guidelines define as two or more separate instances

of the sexual abuse or sexual exploitation of a minor by the

defendant. U.S.S.G. § 2G2.2 cmt. n. 1. Stacy concedes one

instance of sexual exploitation of a minor toward the enhancement,

as Stacy admits to sending a pornographic photograph over the

Internet to a sixteen year old. Accordingly, only one more

instance of such conduct is required for the five-point

enhancement. Stacy argues, however, that his Internet instant

messaging conversations, where the district court found further

conduct constituting a pattern of activity, were mere bragging and
5

idle Internet chatter, and therefore insufficient to support the

sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(5).

The district court disagreed and found that several of these

conversations constituted attempts to engage in sexual abuse or

exploitation of a minor. Attempt requires a culpable intent to

commit the crime and a substantial step towards its commission.

United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996).

In one particular instant message conversation between Stacy

and an individual who called himself “uncutdaddy32", Stacy set up

a meeting with “uncutdaddy32" who agreed to bring his 12 year old

daughter, who has multiple sclerosis and is confined to a

wheelchair, to Stacy so that Stacy could sexually abuse her. Stacy

organized the meeting at a specific Cracker Barrel restaurant at

5:00 pm on a specific date, described the type of car he drove,

obtained the description of the vehicle “uncutdaddy32" drove so

that they could identify each other, and planned the sexual abuse

of “uncutdaddy32"’s 12 year old wheelchair bound disabled child.

Further, a subsequent instant message conversation supports the

Government’s position that this planned encounter actually

occurred. This conduct goes far beyond the mere Internet chat room

banter Stacy claims. 

The record also contains instant messaging conversations

between Stacy and other individuals where Stacy and the individuals

discuss the location of their homes, the distance between them,
3See United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir.

2005)(holding that defendant crossed the line to inducement when he

made arrangements to meet the minor); United States v. Bailey, 228

F.3d 637, 639-640 (6th Cir. 2000)(finding sufficient evidence of a

substantial step toward enticing minors where defendant sent emails to minors proposing oral sex but did not ever travel to meet

the girls); United States v. Williams, 183 F. App’x 246, 247-48 (3d

Cir. 2006)(finding sufficient evidence to support the five-point

sentencing enhancement from defendant’s conversations in online

chat rooms that, inter alia, attempted to set up meeting times with

minors and conspired with several adults to have sexual contact

with their minor children). 

6

whether they are able to travel, and possible locations to meet so

that Stacy could sexually abuse these individual’s minor children.

The district court correctly found that several of these instant

message conversations constituted attempts to engage in unlawful

conduct. (Joint App. Vol. I at 104-12; 118-20).

We conclude that the district court did not clearly err in its

fact-finding and that the facts of record support the district

court’s imposition of the five-point sentencing enhancement. This

holding is consistent with the holdings of several of our sister

circuits.3

IV. 

In light of the foregoing, we find no reversible error in the

district court’s imposition of a five-point enhancement for

engaging in a pattern of activity involving the sexual abuse or

exploitation of a minor. Accordingly, Stacy’s sentence is

affirmed.

AFFIRMED