UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4594
DARRELL DAVID RICE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-97-43)
Submitted: January 26, 2001
Decided: February 8, 2001
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael W. Lieberman, Alexandria, Virginia; J. Frederick Sinclair, J.
FREDERICK SINCLAIR, P.C., Alexandria, Virginia, for Appellant.
Robert P. Crouch, Jr., United States Attorney, Jean B. Hudson, Assis-
tant United States Attorney, Charlottesville, 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Unpublished opinions are not binding precedent in this circuit.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:
Darrell David Rice appeals the 135-month sentence he received
after he pled guilty to attempted kidnapping in violation of 18
U.S.C.A. § 1201(a), (d) (West 2000). He alleges that the district court
erred in making a cross reference from U.S. Sentencing Guidelines
Manual § 2A4.1(b)(7) (1998) (Kidnapping) to USSG § 2A3.1 (Crimi-
nal Sexual Abuse), and in refusing him a three-level reduction under
USSG § 2X1.1(b)(1). Rice further claims that the court clearly erred
in finding that he used his truck as a dangerous weapon during the
commission of the attempted kidnapping, USSG § 2A3.1(b)(1), and
abused its discretion in departing upward by two levels for more than
minimal planning, USSG § 5K2.0, p.s. We affirm.
On July 9, 1997, Rice drove his pickup truck from his home in
Maryland to the Shenandoah National Park in Virginia. In the park,
Rice passed Yvonne Malbasha, who was cycling alone. Before
approaching her, Rice stopped his truck and removed his license
plates. He then drove back to Malbasha, who had just turned onto the
access road for a rest area. Rice drove past Malbasha so closely that
he forced her off the road and off her bike. Accordingly to Malbasha,
Rice got out of the truck and came toward her, screaming that he was
going to get her and telling her to get in the truck. Unable to flee
because she was wearing cycling cleats, Malbasha placed her bicycle
between herself and Rice. He grabbed at her clothing and told her to
show him her "titties." Malbasha hit Rice with her water bottle. After
continuing to shout at Malbasha and trying to pull the bicycle away
from her, Rice suddenly turned away and got back into his truck. He
drove a short distance down the road, then turned around, gunned his
engine, and drove directly at Malbasha, who climbed over a fallen
tree for protection. When Rice backed up and drove away, she
climbed back over the tree, anxious to return to the main road. How-
ever, Rice returned immediately and drove at her again, forcing her
UNITED STATES v. RICE 3
to scramble behind the tree again. Malbasha testified at Rice’s sen-
tencing hearing that this happened four or five times before Rice
finally left. On one of his passes, Rice again repeated his demand that
Malbasha get in the truck.
Rice finally left. A park ranger arrived shortly afterward. Malbasha
was agitated but unhurt except for an abrasion on her back, which she
later said she thought Rice had caused when he grabbed her. Rice was
apprehended and identified by Malbasha as her attacker. By then, he
had changed his shirt and put the license plates back on his truck.
Park rangers found plastic flex-cuffs used in law enforcement (also
used as utility ties by electricians) and a ten-foot length of nylon rope
in Rice’s truck.1
In interviews with park rangers, an agent of the Federal Bureau of
Investigation, and a National Park Service investigator, Rice said that,
when he saw Malbasha cycling, he decided to agitate her and ruin her
day. He admitted removing his license plates to avoid getting caught
and said he threw a soda can which hit her in the back as he forced
her off the road. He admitted yelling at her to "come here" and telling
her to "show me your tits" and "get in the truck," and said he might
have taken hold of her briefly. He admitted feeling "aggressive
toward her sexually," as he got out of his truck, and that "if she didn’t
scream for help it would have gone further . . . forcibly take her
clothes off." However, he repeatedly denied any intent to rape her or
have sex with her, saying that he only wanted to "aggravate her."
Rice said he had been in the park the week before and had thrown
a rock through the windshield of a parked car. Further, Rice stated
that he had "yelled at and confronted a female bicyclist vehemently
about a year ago in Maryland," and that he chose to confront females
because they were more vulnerable than men.
1
Rice was not an electrician; he had worked most recently as a com-
puter programmer. Investigators discovered that Rice had replaced the
original cab of the truck, a 1989 Chevrolet S-10, with a 1988 cab of the
same make with his ex-brother-in-law’s help, ostensibly because the
truck had been in an accident.
4 UNITED STATES v. RICE
In sentencing Rice, the district court began with USSG § 2A4.1
(Kidnapping, Abduction, Unlawful Restraint), but used a cross refer-
ence in subsection (b)(7) to apply USSG § 2A3.1 (Criminal Sexual
Abuse, Attempts). The resulting base offense level was 27. The dis-
trict court added a four-level enhancement for commission of the
offense by the use of a dangerous weapon (Rice’s truck). The court
decided against making another four-level enhancement under
§ 2A3.1(b)(5), which applies if the victim was abducted, because "ab-
ducted," as used in the guidelines, means that the victim was forced
to accompany an offender to a different location. USSG § 1B1.1,
comment. (n.1(a)). The court subtracted three levels for acceptance of
responsibility, as provided in the plea agreement, but departed upward
two levels under USSG § 5K2.0 for more than minimal planning. The
final offense level was 30. Rice was in criminal history category II,
making his guideline range 108-135 months. The court imposed a
sentence of 135 months.
On appeal, Rice first argues that the district court erred in applying
the cross reference in § 2A4.1(b)(7) to the guideline for attempted
criminal sexual abuse, § 2A3.1. The district court’s determination as
to which guideline applies is reviewed de novo. United States v.
Davis, 202 F.3d 212, 218 (4th Cir.), cert. denied, 120 S. Ct. 2675
(2000). Rice contends that subsection (b)(7) applies only when the
victim was actually kidnapped, abducted, or unlawfully restrained. He
points out that the district court found that Malbasha was not
abducted. However, Application Note 5 to § 2A4.1 states that the
court must apply any adjustment that can be determined with reason-
able certainty. Because Rice pled guilty to attempted kidnapping, the
district court was forced to consider Rice’s motive in attempting to
kidnap Malbasha. If the court could discern with reasonable certainty
that Rice’s intent was to sexually molest Malbasha, it was required to
apply § 2A3.1.
Rice contends that the Sentencing Commission did not intend the
cross reference to be applied in a sexual abuse case because
§ 2A4.1(b)(5) provides an enhancement for sexual exploitation of a
kidnapping victim. However, subsection (b)(7) states that the cross
reference is to be applied if it would result in a higher offense level
than that determined under § 2A4.1, which was the case here.
UNITED STATES v. RICE 5
Rice argues that, even if the cross reference was permissible, it was
unsupported by the evidence. He suggests that only evidence of an
attempt to commit rape, that is, proof of intent to rape and a substan-
tial step toward accomplishing a rape, would have justified applica-
tion of the cross reference. This argument again overlooks
Application Note 5, which provides for application of the cross refer-
ence where the offense is an attempted kidnapping if the purpose for
the kidnapping "can be determined with reasonable certainty." Such
a determination is necessarily a factual finding, which is reviewed for
clear error. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). The evidence showed that Rice tried to force Malbasha into his
truck while telling her that he was going to "get" her and telling her
to expose her breasts. He later admitted that, had she not resisted, he
might have forcibly removed her clothes. While he also repeatedly
denied that he had any intention of sexually molesting Malbasha, the
district court’s decision that he did have that intention, based on
Rice’s conduct, was not clearly erroneous. Therefore, the court’s
application of the cross reference to § 2A3.1 was not error.
Next, Rice argues that he was entitled to a reduction under
§ 2X1.1(b)(1), and that the evidence did not support the district
court’s conclusion that Malbasha prevented him from completing the
offense. The offense level for an attempt crime is the base offense
level from the guideline for the substantive offense, together with
enhancements and reductions "for any intended conduct that can be
established with reasonable certainty." USSG § 2X1.1. Subsection
(b)(1) provides for a decrease of three levels "unless the defendant
completed all the acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances demon-
strate that the defendant was about to complete all such acts but for
apprehension or interruption by some similar event beyond the defen-
dant’s control." The background commentary notes that, in most pros-
ecutions for attempts, the substantive offense was substantially
completed "or was interrupted or prevented on the verge of comple-
tion by the intercession of law enforcement authorities or the victim."
USSG § 2X1.1, comment. (backg’d).
The district court’s decision that Rice’s offense was not completed
because of his victim’s resistance, not because he withdrew of his
own volition, is a factual finding that is reviewed for clear error.
6 UNITED STATES v. RICE
United States v. Barton, 32 F.3d 61, 64 (4th Cir. 1994). We cannot
say that the district court clearly erred. Rice selected a victim,
accosted her, and tried to force her into his truck.2 His case is thus dis-
tinguishable from United States v. Depew, 932 F.2d 324 (4th Cir.
1991), on which he relies. In that case, the defendant was arrested
before he took any concrete action toward completing the intended
offenses. Moreover, Rice’s conduct after he ceased trying to pull Mal-
basha into the truck—driving at her several times in an apparent effort
trying to kill her or scare her enough that she would obey his renewed
command to get in the truck—indicates that he did not have a change
of heart, but was simply frustrated in his effort to kidnap her.
Rice also contests the enhancement for use of his truck as a danger-
ous weapon. USSG § 2A3.1(b)(1). The enhancement is required if the
offense was committed through "the use or display of any dangerous
weapon" or by other means set out in 18 U.S.C.A. § 2241(a), (b)
(West Supp. 2000), that is, by force or threat. Rice concedes that a
truck could be a dangerous weapon, but argues that "use" means more
than "brandishing, displaying, or possessing" and that he did no more
than "brandish" his truck. See USSG § 1B1.1, comment. (n.1(g))
(defining "otherwise used" with respect to a dangerous weapon). This
argument fails. Rice used the truck to force Malbasha off her bicycle,
which both intimidated her and created an opportunity for Rice to try
to get her into his truck. He used the truck again as a dangerous
weapon in an apparent attempt to run over her or to intimidate her
into complying with his repeated demand that she get in the truck.
Finally, Rice challenges the upward departure for more than mini-
mal planning as an abuse of discretion. See Koon v. United States,
2
The government contends that Rice completed an abduction, thus
making him ineligible for a reduction under § 2X1.1. The government
relies on the fact that Rice confined Malbasha behind the tree for a time,
thus unlawfully restraining her. It suggests that the district court denied
the reduction because it found that a completed abduction had occurred,
as well as because Rice was prevented from completing the offense. In
fact, the district court’s finding that an abduction occurred concerned
only the recommended enhancement under § 2A3.1(b)(5). The district
court later reversed its initial finding that an abduction (as defined in
§ 1B1.1) had occurred.
UNITED STATES v. RICE 7
518 U.S. 81, 96-100 (1996) (providing standard of review). While
some guidelines provide for an enhancement for more than minimal
planning, neither § 2A3.1 nor § 2A4.1 does so. A factor listed as a
specific offense characteristic under one or more guidelines but not
under the guideline applicable to the instant offense may be a basis
for departure if it is relevant to the instant offense. USSG § 5K2.0.
The guidelines do not encourage, discourage, or forbid a departure for
more than minimal planning. Under Koon, 518 U.S. at 96, a sentenc-
ing court may depart for an unmentioned factor if, "after considering
the ‘structure and theory of both relevant individual guidelines and
the Guidelines taken as a whole,’" it decides that the factor "is suffi-
cient to take the case out of the Guideline’s heartland."
Rice contends that his planning involved nothing more than "sim-
ple basic steps to avoid detection." He notes that departures for fac-
tors not mentioned in the guidelines are expected to be "highly
infrequent." Id. (citing USSG ch. 1, pt. A, p. 6).
"More than minimal planning" is an aggravating factor defined in
Application Note 1(f) to § 1B1.1 as "more planning than is typical for
commission of the offense in a simple form," such as taking steps to
conceal the offense. The commentary also explains that "[i]n an
assault, . . . waiting to commit the offense when no witnesses were
present would not alone constitute more than minimal planning. By
contrast, luring the victim to a specific location, or wearing a ski mask
to prevent identification, would constitute more than minimal plan-
ning." USSG § 1B1.1, comment. (n.1(f)).
Here, the district court found that Rice’s offense involved more
planning than occurs in a typical abduction3 in that he had flex-cuffs
in the cab of the truck, brought a change of clothes with him, and
stopped to remove his license plates before the attack to make detec-
tion more difficult. This conduct qualifies as more than minimal plan-
ning for an assault under the commentary to § 1B1.1. The district
3
The background commentary to § 2A4.1 states that kidnapping cases
generally fall into three categories: (1) limited duration kidnapping
where the victim is released unharmed, (2) kidnapping to facilitate
another offense, often a sexual assault, and (3) kidnapping for ransom or
a political purpose.
8 UNITED STATES v. RICE
court’s decision that this amount of planning removed Rice’s case
from the heartland of the kidnapping guideline is reviewed de novo.
United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Rice had
provided himself with a means of immobilizing his victim and taken
steps to escape detection. Rice’s planning for his confrontation with
Malbasha is significant when considered in light of his admission of
past angry confrontations with females who were strangers to him,
and his demeanor in this offense, which caused Malbasha to fear that
she would be raped and killed if she got in his truck. Therefore, we
find that the district court did not err in finding that Rice’s planning
took his case out of the heartland of kidnapping cases. We further find
that the district court did not abuse its discretion in deciding that a
departure was justified, see id., and in departing upward by two
levels. Id.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED