UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4642

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 3, 2002

Decided: March 11, 2003

Before WILLIAMS and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded by unpublished per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: John L. Brownlee, United States Attorney,

Roanoke, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

This case is before us following our remand for resentencing based

on the district court’s prior application of United States Sentencing

Guidelines Manual (U.S.S.G.) § 2A3.1 rather than § 2A3.2. See

United States v. Rice ("Rice I"), 8 Fed. Appx. 214 (4th Cir. 2001) (per

curiam). On remand, the district court applied the appropriate guideline, and departed upward based on three factors. Because we conclude that one of these factors was an improper basis for departure,

we must again remand for resentencing. 

I.

The underlying facts and procedural details are set forth in Rice I.

Therefore, we will summarize only briefly. Thomas Dale Rice, who

was 56, made contact in an Internet chatroom with "Matt," an undercover officer posing as a 13-year-old boy. Over the Internet, Rice

offered to perform various sexual activities with Matt. Eventually,

Rice, who lived in West Virginia, agreed to meet "Matt" in Bedford,

Virginia. Rice drove to Bedford, checked into a motel, and made

preparations to engage in sexual activity with Matt. He was arrested

later that day at a school where he believed he would be meeting

Matt. 

Rice pled guilty to 18 U.S.C.A. § 2423(b) (West 2000), which

criminalizes "interstate travel with intent to engage in a sexual act

with a juvenile." Rice I, 8 Fed. Appx. at 215-16. Applying the 1998

version of the sentencing guidelines, which were then in effect, the

district court determined that U.S.S.G. § 2A3.1 ("Criminal Sexual

Abuse; Attempt to Commit Criminal Sexual Abuse") was, of three

potentially applicable guidelines, "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, introductory cmt. (1998);

2 UNITED STATES v. RICE
see U.S.S.G. § 1B1.2, cmt. n.1 (1998). The district court concluded

that Rice’s conduct was more analogous to sexual abuse than statutory rape because of "the age disparity between Rice and ‘Matt’ as

well as the supposed immaturity and naivety of the ostensible victim."

Rice I, 8 Fed. Appx. at 216. Under U.S.S.G. § 2A3.1, which fixed a

based offense level of 27, Rice received a 60-month term of imprisonment. 

On appeal, we concluded that the district court should have applied

a different guideline. We held that the most analogous guideline for

Rice’s offense was U.S.S.G. § 2A3.2, with a base offense level of 15,

entitled "Criminal Sexual Abuse of a Minor (Statutory Rape) or

Attempt to Commit Such Acts." We explained that U.S.S.G. § 2A3.2

applied to conduct that "would be consensual but for the age of the

victim," id. at 217-18, but that the guideline applied by the sentencing

court, U.S.S.G. § 2A3.1, "was drafted to cover conduct prohibited by

18 U.S.C.A. §§ 2241 and 2242 . . . [which] criminalize conduct in

which the victim, regardless of his or her age, has been coerced into

sexual activity by force or threats," id. at 217. We concluded that

U.S.S.G. § 2A3.2 was a better fit than § 2A3.1 in Rice’s case because

Rice had not "threatened ‘Matt’ or attempted to place him in fear or

otherwise overcome his will such that the intended sexual encounter

would have been nonconsensual." Id. at 217. Rice had been "forthcoming about his age, his own identity, and the conduct he proposed,"

and thus we were unable to divine a "secret scheme" suggesting that

Rice did not expect the proposed encounter to be consensual. Id. at

218. Because Rice’s proposed conduct "would have . . ., if completed,

constituted the crime of statutory rape," U.S.S.G. § 2A3.2 was the

appropriate guideline. Id. at 218. 

In remanding for Rice to be resentenced under U.S.S.G. § 2A3.2,

we stated "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." Id.

On remand, neither Rice nor the government introduced new evidence, although the district court afforded them an opportunity to do

UNITED STATES v. RICE 3
so at an evidentiary hearing. Applying Rice’s base offense level of 15

under U.S.S.G. § 2A3.2, the district court awarded a downward

adjustment of two levels for acceptance of responsibility, see

U.S.S.G. § 3E1.1(a) (1998), for an offense level of 13. The district

court then granted the government’s motion for an upward departure,

relying on three grounds for the departure. 

First, the district court concluded that "facilitation of [the] underlying offense through the use of the Internet" was neither an encouraged

nor discouraged basis for departure under the 1998 version of the

guidelines but nevertheless was one that "adds a new and very dangerous element to the mix" and "takes this case out of the heartland

of the guidelines." J.A. 139. The court reaffirmed its observation during Rice’s original sentencing that "‘[t]he use of the Internet to facilitate . . . predatory sexual conduct is, in the Court’s view, . . . an

aggravating factor not adequately taken into consideration under

2A3.2.’" J.A. 135-36. The second basis for departure identified by the

district court was Rice’s "preparation for anal intercourse with a person [he] believed to be a child of 13." J.A. 136. The court concluded

that this aspect of Rice’s conduct was an aggravating factor not adequately taken into consideration by the guidelines and took the case

out of the heartland of statutory rape cases. The third and final basis

for the district court’s upward departure was the extreme difference

in age between Rice and his ostensible victim. The court stated that

the age disparity "carrie[d] a strong element of coercion." J.A. 140.

Accordingly, the court departed upward, increasing Rice’s offense

level by two levels for each factor for a total offense level of 19, and

then adjusting downward by one additional level to 18 under U.S.S.G.

§ 3E1.1(b), which yielded a sentencing range of 27-33 months based

on Rice’s criminal history category of I. Rice received 33 months,

which was three months less than his original sentence. 

II.

We review the district court’s upward departure under an abuse of

discretion standard. See Koon v. United States, 518 U.S. 81, 91

(1996); see also United States v. Barber, 119 F.3d 276, 283 (4th Cir.

1997) (en banc) (explaining that Koon "adopt[ed] a traditional abuse

of discretion standard" for reviewing guideline departures). 

4 UNITED STATES v. RICE
A sentencing court must "impose a sentence of the kind, and within

the range" required by the guidelines "unless the court finds that there

exists an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C.A. § 3553(b) (West

2000). In determining "whether a potential basis for departure was

adequately considered by the [Sentencing] Commission . . ., a sentencing court must focus on whether the factor is taken into account

by the guidelines, policy statements, or commentary and whether it is

encompassed within the heartland of situations to which the applicable guideline was intended to apply." Barber, 119 F.3d at 280. The

Commission has "adequately considered circumstances within the

heartland of conduct encompassed by the guidelines and did not consider conduct falling outside the heartland." Id. The "heartland" of a

given guideline is "a set of typical cases embodying the conduct that

each guideline describes." U.S.S.G. Ch. 1, Pt.A, introductory cmt.

4(b). 

Moreover, the sentencing court must decide "whether the factor is

forbidden, encouraged, discouraged, or unmentioned by the Sentencing Commission as a ground for departure." United States v. LeRose,

219 F.3d 335, 339 (4th Cir. 2000). With respect to an encouraged factor, "the court is authorized to depart if the applicable Guideline does

not already take it into account." Koon, 518 U.S. at 96. If the factor

is taken into account by the appropriate guideline, then the court may

depart "only if the factor is present to an exceptional degree or in

some other way makes the case different from the ordinary case

where the factor is present." Id. Similarly, a discouraged factor may

serve as the basis for departure only if it is present to such an unusual

degree that it cannot be said to come within the heartland of the applicable guideline. See id.; see also Barber, 119 F.3d at 281. Finally, a

sentencing court may depart on the basis of a factor that is unmentioned by the guidelines as a basis for departure if that factor removes

the case from the heartland of cases contemplated by the applicable

guideline, but such departures should only occur in "‘rare’ situations."

Barber, 119 F.3d at 281; see U.S.S.G. Ch. 1, Pt. A, introductory cmt.

4(b). With these general principles in mind, we consider the three

bases used by the district court for its downward departure. 

UNITED STATES v. RICE 5
A.

Use of the Internet to facilitate a crime involving sexual activity

with a minor is not forbidden, discouraged, or encouraged as a basis

for departure from a sentence imposed under the 1998 version of

U.S.S.G. § 2A3.2. Because the Commission did not refer to this factor

in the policy statements, commentary, or the text of U.S.S.G. § 2A3.2,

it is an unmentioned factor. See Barber, 119 F.3d at 280 ("Which of

these categories a factor falls into is resolved by reference to the

guidelines, policy statements, and commentary."). Essentially, the district court concluded that the use of the Internet makes it much easier

to commit a crime covered by § 2A3.2 in that it allows a predator

anonymous access to a large pool of potential victims. 

Rice contends that his use of the Internet in connection with his

criminal activity does not present exceptional circumstances that

would make his conduct different than the typical set of cases encompassed by § 2A3.2. He argues that the harm caused by statutory rape

is the same, regardless of whether the perpetrator initiated contact in

person, by telephone, or over the Internet. Thus, he suggests there is

no reasonable basis for making a sentencing distinction. 

We disagree. As illustrated by Rice’s conduct, the use of the Internet fosters anonymous, predatory conduct that is not typical of the

conduct encompassed by the statutory rape guideline. The Internet is

not merely an alternate means for contacting and communicating with

young victims. Rather, the Internet provides a powerful new tool for

predators to locate potential victims in the first place. With the advent

of internet "chatrooms," adults seeking underage sexual partners have

ready access to a nationwide pool of potential targets. As the district

court observed, "[y]oung children all over America use the Internet

to stay in contact with their friends, they engage in research for homework and otherwise to learn about the world in which they live." J.A.

135. The Internet provides a much more efficient way for an adult to

identify and meet minors who fit a desired profile without the inherent practical difficulties of identifying a potential victim in person and

then establishing contact. The anonymity of the Internet also affords

a hedge against detection and an opportunity for an adult such as Rice

to develop trust and pursue a relationship with the juvenile in private.

Moreover, as the government points out, U.S.S.G. § 2A3.2 encom6 UNITED STATES v. RICE
passes crimes involving interstate travel. The nationwide and even

worldwide nature of the Internet unquestionably increases the likelihood of meeting a potential underage partner located across state

lines. 

Alternatively, Rice argues that in departing upward two levels for

his internet usage, the district court was actually applying the 2000

version of the guidelines, in violation of the Ex Post Facto Clause.

After Rice was sentenced under the 1998 Sentencing Guidelines,

§ 2A3.2 was amended to add a two-level enhancement "[i]f a computer or an Internet-access device was used to . . . persuade, induce,

entice, or coerce the victim to engage in prohibited sexual conduct"

or to "facilitate transportation or travel, by the victim or a participant,

to engage in prohibited sexual conduct." U.S.S.G. § 2A3.2, cmt. n.6

(2000). 

A sentencing court ordinarily uses the version of the guidelines "in

effect on the date that the defendant is sentenced." U.S.S.G.

§ 1B1.11(a) (2000). However, if the application of the current version

"would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date

that the offense of conviction was committed." U.S.S.G.

§ 1B1.11(b)(1). If a guideline is amended "after a defendant’s offense

but before sentencing," the district court should not apply it "if doing

so would increase the sentence, because that would violate the Ex

Post Facto Clause." United States v. Heater, 63 F.3d 311, 331 (4th

Cir. 1995). 

Although the 2000 Guidelines Manual was in effect at Rice’s

resentencing, the district court was clearly applying the 1998 version.

The district court not only made this clear during the resentencing

hearing, but the court’s application of the 1998 Guidelines Manual is

also evident from the fact that the court identified two of the three

bases for departure at the original sentencing, which occurred prior to

the amendments. Accordingly, we conclude there was no ex post

facto violation. 

B.

Next, we consider the district court’s two-level upward departure

on the basis of the 43-year age disparity between Rice and his

UNITED STATES v. RICE 7
intended juvenile partner. In so departing, the court noted that such

a difference in age "carries a strong element of coercion." J.A. 140.

Rice argues that, despite the tremendous age difference, there is nothing in the record to suggest that he attempted to coerce Matt. And in

Rice I, we observed that Rice "never threatened or attempted to

coerce ‘Matt,’" and that we saw nothing in the record before us that

would suggest "the proposed encounter would not have been consensual." 8 Fed. Appx. at 218. 

Age disparity is a factor unmentioned by the 1998 Guidelines Manual as a basis for departure. Accordingly, the question is whether this

circumstance removes Rice’s case from the heartland of § 2A3.2.

Unlike a statutory rape scenario involving, say, a 21-year-old male

and his 16-year-old girlfriend, a proposed sexual encounter between

a 56-year-old adult and a 13-year-old adolescent creates a much different and more dangerous situation. Typically, there are vast differences between a person Rice’s age and one Matt’s age in physical size

and strength; mental and emotional development; life experience and,

in particular, sexual experience; and material resources. In our view,

these factors amount to an increased danger of physical injury to the

juvenile, whether unintended or not, and an increased likelihood of

psychological manipulation. Here, Rice attempted to gain Matt’s trust

from the beginning. Matt indicated that he was unsure about his own

sexual orientation, and Rice, who asked to be called "Uncle Tom,"

offered to teach him. Rice also indicated that he could afford Matt

exciting opportunities of a nonsexual nature as well. See id. at 217

n.3. Rice held himself out as a father figure who could "mentor" Matt

in learning about his sexuality, and Rice emphasized that he would be

careful given Matt’s inexperience. Rice gave Matt a credit card number to use for long distance calls and sent pictures of his flashy car.

At various times, Rice told Matt that he trusted him, worried about

him and really cared for him. 

Although Rice is correct that, in Rice I, we indicated that we perceived no intent on Rice’s part to coerce Matt into sexual activity, our

discussion on this point was set in the context of determining whether

to apply the criminal sexual abuse guideline, U.S.S.G. § 2A3.1, which

encompasses conduct "in which the victim, regardless of his or her

age, has been coerced into sexual activity by force or threats." Id. at

217 (emphasis added). We did not reject the government’s suggestion

8 UNITED STATES v. RICE
that Rice employed "psychological force" to persuade Matt to meet

with him; we merely observed that it was not appropriate for us "to

consider this evidence in the initial selection of the proper guideline."

Id. at 217 n.3. Our focus in Rice I was on whether Rice had "threatened ‘Matt’ or attempted to place him in fear or otherwise overcome

his will such that the intended sexual encounter would have been nonconsensual." Id. at 217. 

We conclude that the more than forty-year age difference between

Rice and his intended juvenile partner removes this case from the

heartland of cases encompassed within the statutory rape guideline set

forth in § 2A3.2. 

Rice argues, alternatively, that the district court’s two-level upward

departure was the functional equivalent of applying the 2000 Guidelines Manual, which Rice argues would violate the Ex Post Facto

Clause. Section 2A3.2 was amended to include an upward two-level

adjustment if "a participant . . . unduly influenced the victim to

engage in prohibited sexual conduct." U.S.S.G. § 2A3.2(b)(2)(B)

(2000). If the participant is at least 10 years older than the victim,

"there shall be a rebuttable presumption . . . that such participant

unduly influenced the victim to engage in prohibited sexual conduct."

U.S.S.G. § 2A3.2 cmt. n. 5 (2000). We reject this argument for the

same reasons that we rejected Rice’s contention that the upward

departure based on the use of the Internet violated the Ex Post Facto

Clause. 

C.

Finally, we consider the district court’s two-level upward departure

based on Rice’s intent to engage in "anal intercourse with a person

[Rice] believed to be a child of 13." J.A. 139-40. This circumstance,

too, is unmentioned in the guidelines as a basis for departure. We cannot agree, however, that it removes the case from the heartland of

§ 2A3.2, which expressly covers violations of 18 U.S.C.A. § 2243.

Section 2243 criminalizes the commission of "a sexual act with

another person who . . . has attained the age of 12 years but has not

attained the age of 16 years; and . . . is at least four years younger"

than the defendant. 18 U.S.C.A. § 2243(a) (West 2000). A "sexual

act" for purposes of this section includes "contact between . . . the

UNITED STATES v. RICE 9
penis and the anus . . . upon penetration, however slight." 18 U.S.C.A.

§ 2246(2)(A) (West 2000). Accordingly, the act of "anal intercourse"

with a 13-year-old falls squarely within the conduct prohibited by

§ 2243 and, in turn, falls squarely within U.S.S.G. § 2A3.2. We conclude that this particular factor is not alone enough to set this case

apart from the heartland of cases described by § 2A3.2.*

III.

For the reasons set forth above, we affirm the district court’s twolevel upward departure with respect to both Rice’s use of the Internet

and the age disparity between Rice and his intended victim, but we

reverse as to the two-level upward departure based on Rice’s intention

to engage in anal intercourse with a 13-year-old. We remand for

resentencing in accordance with this opinion. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

*The government attempts to recast the district court’s basis for departure as the "tender years" of the intended victim. We do not believe this

is completely accurate. Each time the court identified this particular factor, it emphasized not only the purported victim’s age but also the fact

that Rice intended to engage in "anal intercourse" with a child of 13. 

10 UNITED STATES v. RICE