UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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. 
Unpublished opinions are not binding precedent in this circuit.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

1There is some discrepancy in the record about whether the investigator 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. 

2 UNITED STATES v. RICE
lived. On February 20, 1999, Rice drove from West Virginia to Bedford 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 purpose 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 guidelines 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 sentencing 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 presentence 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

2Rice also pled guilty to using certain personal property in the commission of the underlying offense and agreed to the forfeiture of the property. See 18 U.S.C.A. § 2253 (West 2000). 

UNITED STATES v. RICE 3
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 analogous 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 district 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 "compar[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 gravamen 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 circumstances, 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 conduct 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.

4 UNITED STATES v. RICE
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 misconduct. 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 conduct; 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, imprisoned 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

3Likewise, Rice’s charged misconduct simply does not indicate that

Rice attempted to employ deception and "psychological force" in persuading "Matt" to agree to a rendezvous. The Government argues that

Rice applied "psychological force" by telling "Matt" that Rice was a "faUNITED STATES v. RICE 5
Rice’s offense conduct, therefore, fits better within the attempted

statutory rape guideline — U.S.S.G. § 2A3.2. This guideline specifically 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 proscribed 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 excesther figure" who could not only instruct "Matt" in sexual matters but

could also provide exciting opportunities for "Matt" to participate in various 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."). 

6 UNITED STATES v. RICE
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, constituted 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 district 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 statutory 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 outlined 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 Government 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 comfortable 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 indicia of violence or force, "Matt’s" young age — thirteen — renders

§ 2A3.1 applicable. Were we to agree, we would necessarily adopt a

UNITED STATES v. RICE 7
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 victimizes a minor under his supervision or care." The Government directs

our attention to the first sentence and asserts that the test of lawfulness should be under state law. Because Virginia outlaws the particular 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 purpose 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 establishing the Sentencing Guidelines was the promotion of "reasonable uniformity in sentencing by narrowing the wide disparity in sentences

imposed for similar criminal offenses committed by similar offend8 UNITED STATES v. RICE
ers." U.S.S.G. Ch. 1 Pt. A, p.s. Although we recognize that the Sentencing 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 federal 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. Accordingly, 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

UNITED STATES v. RICE 9