UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished per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.
2 UNITED STATES v. RICE
Unpublished opinions are not binding precedent in this circuit.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 guide-
line, and departed upward based on three factors. Because we con-
clude 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 under-
cover 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);
UNITED STATES v. RICE 3
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 statu-
tory 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 imprison-
ment.
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 "forth-
coming 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 evi-
dence, although the district court afforded them an opportunity to do
4 UNITED STATES v. RICE
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] underly-
ing 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 dan-
gerous element to the mix" and "takes this case out of the heartland
of the guidelines." J.A. 139. The court reaffirmed its observation dur-
ing Rice’s original sentencing that "‘[t]he use of the Internet to facili-
tate . . . 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 per-
son [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 ade-
quately 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).
UNITED STATES v. RICE 5
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 sen-
tence 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 sen-
tencing 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 applica-
ble 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 con-
sider 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 Sentenc-
ing Commission as a ground for departure." United States v. LeRose,
219 F.3d 335, 339 (4th Cir. 2000). With respect to an encouraged fac-
tor, "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 appli-
cable 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 unmen-
tioned 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.
6 UNITED STATES v. RICE
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 dis-
trict 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 encom-
passed 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 Inter-
net 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 home-
work 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 inher-
ent 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 encom-
UNITED STATES v. RICE 7
passes crimes involving interstate travel. The nationwide and even
worldwide nature of the Internet unquestionably increases the likeli-
hood 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 com-
puter 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 Constitu-
tion, 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
8 UNITED STATES v. RICE
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 noth-
ing 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 consen-
sual." 8 Fed. Appx. at 218.
Age disparity is a factor unmentioned by the 1998 Guidelines Man-
ual 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 dif-
ferent and more dangerous situation. Typically, there are vast differ-
ences 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 num-
ber 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 per-
ceived 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
UNITED STATES v. RICE 9
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 "threat-
ened ‘Matt’ or attempted to place him in fear or otherwise overcome
his will such that the intended sexual encounter would have been non-
consensual." 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 Guide-
lines 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 can-
not 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
10 UNITED STATES v. RICE
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 con-
clude 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 two-
level 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 depar-
ture as the "tender years" of the intended victim. We do not believe this
is completely accurate. Each time the court identified this particular fac-
tor, 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.