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 court erred in not permitting him an opportunity to
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 advertisement 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 children.” 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 corresponding
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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 engaging 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 children. This correspondence
also included Rhodes’s statement that he had a previous sexual
relationship 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
separate 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 purpose of producing
pornography that would be transported interstate in violation of 18
1
Rhodes was never arrested or charged with any offense based upon
this alleged conduct.
3
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 anyone 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 the
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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 pre-
sentence report (“PSR”), the probation officer noted the parties’
sentencing stipulation pursuant to Rule 11(e)(1)(B), but noted that
it was “not binding 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 because 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
applied 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 Court 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
sentencing recommendation, acknowledged that it was not binding,
and noted that its rejection would not permit withdrawal of the
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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 the parties insofar as the parties agreed “that
Section 2G1.1 of the sentencing guidelines apply to this offense.”
Consequently, 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 rejected 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 rely 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. DISCUSSION
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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 otherwise forfeited error unless we
conclude that the error “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Thames, 214 F.3d 608, 612 (5th Cir. 2000) (citing Gaudin, 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 or
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sentencing 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 court chose a higher
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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 converted it from a Rule 11(e)(1)(B) agreement to one
under Rule 11(e)(1)(C). Consequently, we conclude that the
parties’ sentencing agreement was not 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 interpretation of the sentencing guidelines de novo. See
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 conduct did not amount to criminal attempt.
Notwithstanding the fact that Appendix 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,
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Rhodes argues that such an application in “traveler sting” cases
subverts the real purpose of the guidelines and authorizes
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
based 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 Butler, 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, spoke 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. Id. 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 were 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 we affirmed application of section 2G2.2, in United
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’s
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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 the 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) are punished as “criminal sexual abuse” under U.S.S.G.
§ 2A3.1. And here, Rhodes has stipulated that he “traveled to
2
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.
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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. See
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
offense guideline . . . most applicable to the stipulated
offense.”); see also United States v. Principe, 203 F.3d 849, 853
(5th Cir. 2000); United States v. Beard, 913 F.2d 193, 198 (5th
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 are
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AFFIRMED.
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