REVISED - June 26, 2001

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-10709

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES HAROLD RHODES,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

June 6, 2001

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

James Harold Rhodes (“Rhodes”) appeals from the judgment and

sentence entered by the United States District Court for the

Northern District of Texas, Judge Sam Lindsay, presiding. Pursuant

to a written plea and cooperation agreement, Rhodes pleaded guilty

to and was convicted of one count of traveling interstate with the

intent to engage in a sexual act with a juvenile, in violation of

18 U.S.C. § 2423(b). Rhodes appeals, arguing first that the

district cour t erred in not permitting him an opportunity to2

withdraw his guilty plea after rejecting the sentencing guideline

provision recommended by the government in the plea agreement, and

second, that the district court erred in applying U.S.S.G. § 2A3.1

in determining his base offense level under the Guidelines. For

the reasons given below, we affirm the judgment entered and

sentence imposed by the district court.

I. FACTS

The relevant facts of this case are undisputed, and the

following recitation thereof is taken primarily from the factual

resume submitted to the district court and to which Rhodes has

stipulated.

On May 3, 1999, Rhodes responded to an Internet advertisement

placed by an undercover officer with the Dallas Police Department.

The advert isement read as follows: “D/W/F in TX with children

looking for that certain someone. That special person to help with

the life education of the child ren.” In subsequent e-mail

correspondence, Rhodes indicated that he desired to come to Dallas

for the express purpose of having sexual intercourse with a 12-

year-old female child and a 10-year-old male child, both of whom he

believed to be the children of the person who placed the original

advertisement.

Rhodes made arrangements to travel by commercial airline from

his residence in Cleveland, North Carolina to Dallas, Texas, where

he believed the individual with whom he had been corresponding1 Rhodes was never arrested or charged with any offense based upon

this alleged conduct.

3 lived. On July 24, 1999, Rhodes arrived at a hotel in Dallas for

a pre-arranged meeting with the person whom he believed was the

mother of the two children he hoped to victimize. According to the

factual resume, Rhodes admitted that he traveled to Dallas and to

the hotel with the intention of engagin g in sexual acts with the

two children.

Prior to the meeting in Dallas, Rhodes’s correspondence with

the “mother” included explicit plans for how he would engage in sex

with both the 10 and 12-year-old child ren. This correspondence

also included Rhodes’s statement that he had a previous sexual

relations hip with an 8-year-old girl. 1 In the hotel room, Rhodes

showed a variety of sexual aids to the “mother,” and he explained

to her what he planned to do to her children. Upon entering the

s eparate room where he believed his child-victims were waiting,

Rhodes was arrested.

Rhodes was charged in a five-count indictment with traveling

interstate for the purposes of engaging in a sexual act with

juveniles in violation of 18 U.S.C. § 2423(b) (Counts One and Two),

with crossing a state line with the intent to commit a sexual act

with a juvenile (a 10-year-old male) in violation of 18 U.S.C.

§ 2241(c) (Count Three), and with attempting to induce minors to

engage in sexually explicit conduct for the purpo se of producing

pornography that would be transported interstate in violation of 184

U.S.C. § 2251(a),(d) (Counts Four and Five). Pursuant to a plea

and cooperation agreement, Rhodes agreed and did plead guilty to

Count One in exchange for the government’s agreement to drop the

remaining charges. With respect to the sentence to be imposed by

the district court, the plea agreement provided as follows:

Pursuant to Federal Rule of Criminal Procedure

11(e)(1)(B) both parties stipulate and agree:

1) that Section 2G1.1 of the Sentencing

Guidelines applies to this offense; 2) that

the defendant should be sentenced at the

lowest end of the applicable guidelines range;

. . . .

The plea agreement also provided: “[t]here have been no

representations or promises from an yone as to what sentence this

Court will impose.”

At Rhodes’s rearraignment hearing, the district court

specifically addressed the plea agreement with Rhodes, who

indicated that he had reviewed it with his lawyer and fully

understood its terms. Among its numerous questions regarding

Rhodes’s comprehension of the terms of the agreement, the district

court asked, “[D]o you understand that the terms of this plea

agreement are merely a recommendation to the court and that the

court can reject the recommendation and impose a sentence that is

more severe than you anticipate including a sentence up to and

including the maximum allowed by law?” Rhodes responded in the

affirmative, and the district court confirmed Rhodes’s

understanding of the fact that he would not be allowed to withdraw

his guilty plea if the district court did in fact reject the5

sentencing recommendation and impose a sentence more severe than

Rhodes expected.

The probation officer recommended to the district court that

it apply Section 2A3.1 instead of Section 2G1.1. In the presentence report (“PSR”), the probation officer noted the parties’

sentencing stipulation pursuant to Rule 11(e)(1)(B), but noted that

it was “ not bin ding on the Court.” In response, the government

filed a sentencing memorandum explaining that if the district court

chose to use Section 2A3.1, Rhodes “cannot withdraw his plea of

guilty.” The government further explained that it urged

application of Section 2G1.1 becaus e of the relative severity of

applying 2A3.1 in a “sting” case where there were no true victims,

and the relative severity of Section 2A3.2, which other courts had

appl ied in “traveler sting” cases. Though Rhodes objected to

application of Section 2A3.1, and in fact adopted the government’s

sentencing memorandum, he did not object to the characterization of

the sentencing stipulation in the plea agreement as being pursuant

to Rule 11(e)(1)(B).

At the sentencing hearing, the district court referred to the

parties’ sentencing stipulation and stated, “the parties know that

the Cou rt is not bound by any agreement the parties have reached

concerning a particular plea.” Rhodes’ counsel indicated, “we

understand that.” The prosecutor then referred again to the

sente ncing recommendation, acknowledged that it was not binding,

and noted that its rejection would not permit withdrawal of the6

plea. Though Rhodes’s counsel noted the possibility that the

district court may have to throw out the plea agreement and argued

the necessity of choosing no other guideline than Section 2G1.1, he

never requested or even expressed a desire for Rhodes to withdraw

his guilty plea.

The district court stated that it could not accept the

agreement of th e parties insofar as the parties agreed “that

Section 2G1.1 of the sentencing guidelines apply to this offense.”

Conse quently, the district court declined to accept “that

recommendation of the parties” (emphasis supplied). In response,

while referring to the government’s “recommendation” to use Section

2G1.1, Rhodes’s attorney neither objected to Rhodes being sentenced

after the court rejec ted the recommendation, nor did he request

that Rhodes be permitted to withdraw his guilty plea. Accordingly,

the district court imposed a sentence of 63 months imprisonment to

be followed by a 3-year term of supervised release.

Though the plea agreement to which Rhodes agreed provided that

he waived any right to appeal, the government has explicitly chosen

not to rel y on that waiver and, in the absence of published

authority dictating otherwise , we will not enforce such a waiver

when the government explicitly states that it “chooses not to rely

on [the defendant’s] waiver of appeal.” Thus, we now turn to the

merits of the two issues raised by Rhodes in this appeal.

II. DISCUSSION7

A. Withdrawal of Guilty Plea

Rhodes first argues that the district court erred in “failing

to afford [Rhodes] the opportunity to withdraw his plea of guilty

after rejecting the plea agreement as required by Rule 11(e)(4).”

We note initially that we review this claim for plain error only,

as Rhodes neither requested to withdraw his guilty plea nor

objected to being sentenced after the district court rejected the

parties’ sentencing recommendation, and he has raised this issue

for the first time on appeal. See United States v. Calverley , 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc), abrogated in part by

Johnson v. United States

, 117 S. Ct. 1544, 1549 (1997). If the

error complained of is plain and affects substantial rights, we may

provide relief. See United States v. Olano

, 113 S. Ct. 1770, 1775-

79 (1993). But under this standard, we are not to exercise

discretion to correct an othe rwise forfeited error unless we

conclude that the error “seriously affects the fairness, integrity

or public reputation of judicial proc eedings.” U nited States v.

Thames

, 214 F.3 d 608, 612 (5th Cir. 2000) (citing G audin

, 115 S.

Ct. at 2322). Such is not this case here.

Despite Rhodes’s protestation to the contrary, the record

clearly reveals that the parties’ sentencing stipulation was not a

Rule 11(e)(1)(C) agreement, but one pursuant to Rule 11(e)(1)(B).

The distinction is an important one, as Rule 11(e)(1)(C) provides

that the government will “agree that a specific sentence or8

sentencin g range is the appropriate disposition of the case, or

that a particular provision of the Sentencing Guidelines . . . is

or is not applicable,” and that “[s]uch a plea agreement is binding

on the court once it is accepted by the court.” Rule 11(e)(1)(B),

on the other hand, provides for a prosecutor’s agreement to

“recommend

. . . a particular sentence or sentencing range, or that

a particular provision of the Sentencing Guidelines

. . . is or is

not applicable to the case.” The latter provision is not binding

on the court.

Rhodes argues that despite the fact that the plea agreement

unambiguously cites Rule 11(e)(1)(B), it “stipulated” that a

particular guideline applied to the case and therefore is more akin

to a Rule 11(e)(1)(C) agreement, for which Rule 11(e)(4) would

provide for the opportunity to withdraw the guilty plea once it was

“rejected” by the district court. This argument is belied by the

record evidence before us. Specifically, the parties’ statements

throughout the proceedings reveal that, unlike a Rule 11(e)(1)(C)

agreement, the sentencing agreement was fully understood by Rhodes

and the government as “not binding” upon the district court.

Furthermore, Rhodes affirmed his understanding, when specifically

asked by the district court, that if the district court rejected

the sentencing “recommendation” in the plea agreement, he would not

be allowed to withdraw his plea. Furthermore, the text of the

agreement itself explicitly stated that Rhodes would not be allowed

to withdraw his guilty plea if the district cou rt chose a higher9

guidelines range than he expected.

We find no basis whatsoever in the record of this case for

concluding that the true character of the parties’ sentencing

agreement co nverted it from a Rule 11(e)(1)(B) agreement to one

u nder Rule 11(e)(1)(C). Consequently, we conclude that the

parties’ sentencing agreement was n ot binding on the court, and

rejection thereof did not trigger the district court’s obligation

under Rule 11(e)(4) to offer Rhodes an opportunity to withdraw his

guilty plea. Accordingly, we also find that the district court did

not plainly err in failing to allow Rhodes an opportunity to

withdraw his guilty plea.

B. Application of U.S.S.G. § 2A3.1

Rhodes next argues that the district court erred in applying

Section 2A3.1 to the offense for which he was convicted, that is,

interstate travel with the intent to engage in a sexual act with a

juvenile, 18 U.S.C. § 2423(b). We review the district court’s

legal interpr etation of the sentencing guidelines d e novo

. S ee

United States v. Cho , 136 F.3d 982, 983 (5th Cir. 1998).

Rhodes’s contention is that Section 2A3.1 applies to the

actual or attempted commission of an aggravated sexual abuse, and

that his conduc t did not amount to criminal attempt.

Notwithstanding the fact that Appen dix A of the Sentencing

Guidelines directs district courts to §§ 2A3.1, 2A3.2 and 2A3.3 for

violations of 18 U.S.C. § 2423(b), his offense of conviction,10

Rhodes argues that such an application in “traveler sting” cases

subverts the real purpose of the guidelines and a uthorizes

punishment for crimes impossible to actually commit because there

is only a virtual victim. Rhodes argues that Section 2G1.1, agreed

to by the parties, is the applicable guideline provision.

The district court determined, based upon a recommendation by

the probation officer in the PSR, that Section 2A3.1 should apply

b ased upon the directive in Appendix A and based upon the Ninth

Circuit’s holding in United States v. Butler

, 92 F.3d 960 (9th Cir.

1996), which the district court found to be factually

indistinguishable. In B utler

, the defendant answered an ad placed

by an undercover police officer posing as a “mother,” looking for

someone to teach sexual matters to her children, aged 12, 10, and

7

. Id. at 961. Butler traveled interstate, from Washington to

Oregon, spo ke to the “mother” for 45 minutes about his plans for

the children, and was arrested upon entering the hotel room where

he expected to find the children. I d. Like Rhodes, Butler was

convicted under 18 U.S.C. § 2423(b). The Ninth Circuit stated in

Butler that “the fact that [Butler] was unable to complete the

crime because the victims wer e fictitious is not the determining

factor. Rather, [Butler]’s intent and conduct constitute attempted

criminal sexual abuse of three young children.” Id. at 963.

While w e affirmed application of section 2G2.2, in U nited

States v. Canada

, 110 F.3d 260, 262-64 (5th Cir. 1997), a case

involving an 18 U.S.C. § 2423(b) conviction for the defendant’s2 Section 2241(c) specifically defines aggravated sexual abuse as

follows:

With children.--Whoever crosses a State line with intent

to engage in a sexual act with a person who has not

attained the age of 12 years, or in the special maritime

and territorial jurisdiction of the United States or in

a Federal prison, knowingly engages in a sexual act with

another person who has not attained the age of 12 years,

or knowingly engages in a sexual act under the

circumstances described in subsections (a) and (b) with

another person who has attained the age of 12 years but

has not attained the age of 16 years (and is at least 4

years younger than the person so engaging), or attempts

to do so, shall be fined under this title, imprisoned for

any term of years or life, or both. Id.

11 actions in traveling for the purpose of engaging in sexual acts

with a purported 13-year-old and a simultaneous conviction under 18

U.S.C. § 2252(a)(4)(b) for possession of child pornography, we note

that the application of Section 2G2.2 was selected based upon the

child pornography charge. We did not hold in Canada that Section

2A3.1 cannot be applicable to convictions under 18 U.S.C.

§ 2423(b); and thus, Canada is not controlling precedent to guide

our disposition today.

The government argues that, in addition to the reasoning

offered by the Ninth Circuit in Butler

, Section 2A3.1 was correctly

applied because, under 18 U.S.C. § 2241(c), it is aggravated sexual

abuse to travel across state lines with t he intent to engage in

sexual acts with children under 12 years of age. 2 Appendix A of

the Sentencing Guidelines directs that violations of 18 U.S.C.

§ 2241(c) a re punished as “criminal sexual abuse” under U.S.S.G.

§ 2A3.1. And here, Rhodes has stipulated that he “traveled to12

Dallas, Texas with the intention of engaging in sexual acts with a

10-year-old boy.” The government argues that notwithstanding that

Rhodes was not convicted of a § 2241(c) violation, he may

nonetheless be sentenced based thereupon because the offense has

been adequately established by Rhodes’s own stipulation. S ee

U.S.S.G. § 1B1.2(a) (“in the case of a plea agreement

. . .

containing a stipulation that specifically establishes a more

serious offense than the offense of conviction, determine the

offen se guideline . . . most applicable to the stipulated

offense.”); see also United States v. Principe , 203 F.3d 849, 853

(5th Cir. 2000); U nited States v. Beard

, 913 F.2d 193, 198 (5 t h

Cir. 1990) (“ if in a guilty plea a defendant stipulates to facts

that establish a more serious offense than the offense of

conviction, that person may be sentenced to the higher offense.”).

Consequently, where as here, the defendant has pleaded guilty

to violating 18 U.S.C. § 2423(b) but has also stipulated to facts

which constitute aggravated sexual abuse, in violation of 18 U.S.C.

§ 2241(c) , we conclude that pursuant to U.S.S.G. § 1B1.2, he may

likewise be sentenced for the offense of conviction by application

of U.S.S.G. § 2A3.1.

III. CONCLUSION

For all of the foregoing reasons, we find that the district

court committed no reversible error, and accordingly, the judgment

entered and the sentenced imposed by the district court are13 AFFIRMED

.