                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4051
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 8, 2000

                        Decided: May 3, 2001

     Before WILLIAMS and TRAXLER, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.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: Robert P. Crouch, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

   Thomas Dale Rice was indicted for crossing the state line between
West Virginia and Virginia for the purpose of engaging in a sexual
act with a thirteen-year-old adolescent. See 18 U.S.C.A. § 2423(b)
(West 2000). Rice pled guilty and was sentenced to a prison term of
sixty-three months. He appeals his sentence on the ground that the
district court erred in applying United States Sentencing Guidelines
Manual (U.S.S.G.) § 2A3.1 rather than § 2A3.2. We are constrained
to agree. We vacate Rice’s sentence and remand the matter to district
court for further consideration.

                                    I.

   In February 1999, using the screen name "EP Mentor," Rice came
into contact with a law enforcement investigator posing as "Matt" in
an Internet "chat room." "Matt" told Rice that he was thirteen years
old.1 Rice was fifty-eight years old at the time. "Matt" talked to Rice
about questions "Matt" was having regarding his sexual orientation,
and Rice offered to answer questions about homosexuality, described
a variety of homosexual acts, and offered to meet "Matt" to perform
certain acts of intercourse with "Matt." The Internet conversations
between Rice and "Matt" progressed to the point that Rice revealed
his real name and sent "Matt" pictures of himself, his car, and his
home. He also gave "Matt" phone numbers where he could be reached
during this time period. Eventually, after a number of e-mails and
telephone calls, Rice, who lived in West Virginia, arranged to meet
"Matt" at a motel in Bedford, Virginia, where the boy supposedly
    1
    There is some discrepancy in the record about whether the investiga-
tor initially indicated that "Matt" was thirteen or fourteen years old, but
Rice concedes that the investigator eventually told him that "Matt" was
thirteen years old.
                         UNITED STATES v. RICE                          3
lived. On February 20, 1999, Rice drove from West Virginia to Bed-
ford and registered at the motel under the name "E.P. Mentor." After
making preparations for the sexual activity, Rice drove to a school
where he had arranged to meet "Matt" and was there arrested.

   Rice pled guilty to violating 18 U.S.C.A. § 2423(b), which makes
interstate travel with intent to engage in a sexual act with a juvenile
a criminal offense:

      Travel with intent to engage in sexual act with a juvenile.—
      A person who travels in interstate commerce . . . for the pur-
      pose of engaging in any sexual act (as defined in section
      2246) with a person under 18 years of age that would be in
      violation of chapter 109A if the sexual act occurred in the
      special maritime and territorial jurisdiction of the United
      States shall be fined under this title, imprisoned not more
      than 15 years, or both.

18 U.S.C.A. § 2423(b).2

   Rice was sentenced in January 2000. Under the 1998 version of the
sentencing guidelines, which was then appropriate to use, the district
court was faced with three potentially applicable sentencing guide-
lines for Rice’s violation of section 2423(b): U.S.S.G. § 2A3.1,
U.S.S.G. § 2A3.2, and U.S.S.G. § 2A3.3. See U.S.S.G. App. A. When
more than one guideline is applicable for a particular statute, the sen-
tencing court must "use 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, intro. comment.; see U.S.S.G.
§ 1B1.2, comment. (n.1) (1998).

   Rice contended, as did the probation officer who prepared the pre-
sentence report, that the most appropriate sentencing guideline for his
offense was U.S.S.G. § 2A3.2, entitled "Criminal Sexual Abuse of a
Minor (Statutory Rape) or Attempt to Commit Such Acts," which
imposed a base offense level of 15. By contrast, the Government
  2
   Rice also pled guilty to using certain personal property in the commis-
sion of the underlying offense and agreed to the forfeiture of the prop-
erty. See 18 U.S.C.A. § 2253 (West 2000).
4                        UNITED STATES v. RICE
asserted that the most appropriate guideline was U.S.S.G. § 2A3.1 —
"Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse"
— which fixed a more substantial base offense level of 27.

   The district court agreed with the government that U.S.S.G.
§ 2A3.1 was the proper guideline. The district court observed that
§ 2A3.2 was "analogous to simple statutory rape." J.A. 53. However,
the district court concluded that Rice’s conduct, if successful, "would
not have been simple statutory rape" but "would have been more anal-
ogous to sexual abuse." J.A. 53. The court based this conclusion on
the age disparity between Rice and "Matt" as well as the supposed
immaturity and naivety of the ostensible victim. Accordingly, the dis-
trict court applied U.S.S.G. § 2A3.1 in determining Rice’s sentence
and imposed a term of 63 months.

                                   II.

   We review the sentencing court’s selection of the appropriate
guideline de novo. See United States v. Davis, 202 F.3d 212, 218 (4th
Cir.), cert. denied, 120 S. Ct. 2675 (2000). Our task is simply to select
the most appropriate guideline for the nature of the offense by "com-
par[ing] the guideline texts with the charged misconduct." United
States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993). When a
defendant is to be sentenced for a crime such as Rice’s where the gra-
vamen of the offense is crossing a state line with intent to commit one
of several defined crimes, we hold that in choosing between allowable
guidelines sections the court should use the guideline for the offense
that the court reasonably finds, based upon all the facts and circum-
stances, would have been committed if the defendant’s efforts had
continued to fruition. With this principle in mind, we review the issue
before us.

   The district court selected the criminal sexual abuse guideline set
forth in U.S.S.G. § 2A3.1. This guideline was drafted to cover con-
duct prohibited by 18 U.S.C.A. §§ 2241 and 2242 (West 2000).
Broadly speaking, sections 2241 ("Aggravated sexual abuse") and
2242 ("Sexual abuse") criminalize conduct in which the victim,
regardless of his or her age, has been coerced into sexual activity by
force or threats, or conduct in which a person has engaged in sexual
activity with an incapacitated victim. See 18 U.S.C.A. §§ 2241, 2242.
                         UNITED STATES v. RICE                         5
Section 2241 covers sexual abuse under aggravated circumstances
that unquestionably are not present in this case, including the actual
application of force or the use of death threats against the victim. See
18 U.S.C.A. § 2241(a).

  Section 2242 is likewise inapplicable to Rice’s anticipated miscon-
duct. Section 2242 provides:

      Whoever, in the special maritime and territorial jurisdiction
      of the United States or in a Federal prison, knowingly—

         (1) causes another person to engage in a sexual act by
      threatening or placing that other person in fear (other than
      by threatening or placing that other person in fear that any
      person will be subjected to death, serious bodily injury, or
      kidnaping); or

        (2) engages in a sexual act with another person if that
      other person is—

          (A) incapable of appraising the nature of the con-
          duct; or

          (B) physically incapable of declining participation
          in, or communicating unwillingness to engage in,
          that sexual act;

      or attempts to do so, shall be fined under this title, impris-
      oned not more than 20 years, or both.

18 U.S.C.A. § 2242. We find nothing in the indictment or the record
of Rice’s guilty plea that convinces us that Rice threatened "Matt" or
attempted to place him in fear or otherwise overcome his will such
that the intended sexual encounter would have been nonconsensual.3
  3
   Likewise, Rice’s charged misconduct simply does not indicate that
Rice attempted to employ deception and "psychological force" in per-
suading "Matt" to agree to a rendezvous. The Government argues that
Rice applied "psychological force" by telling "Matt" that Rice was a "fa-
6                         UNITED STATES v. RICE
   Rice’s offense conduct, therefore, fits better within the attempted
statutory rape guideline — U.S.S.G. § 2A3.2. This guideline specifi-
cally refers to the federal statute criminalizing sexual abuse of a
minor, 18 U.S.C.A. § 2243(a) (West 2000), which makes it a crime
to "knowingly engage[ ] [or attempt to engage] in a sexual act with
another person who— (1) has attained the age of 12 years but has not
attained the age of 16 years; and (2) is at least four years younger than
the person so engaging." 18 U.S.C.A. § 2243(a). The conduct pro-
scribed by this provision would be consensual but for the age of the
victim. Rice’s plan falls within this guideline more comfortably than
the criminal sexual abuse guideline. Despite the offensive nature of
Rice’s proposal, he never threatened or attempted to coerce "Matt"
and there is nothing before us indicating that he intended to do so.
Rice was also forthcoming about his age, his own identity, and the
conduct he proposed. There was no secret scheme, so far as the record
goes, that Rice concealed from "Matt." Thus, we are unable to say
that the proposed encounter would not have been consensual.

   Moreover, the Government’s position leads to an unlikely result.
On this record, had Rice actually carried out his plan to completion,
his conduct could not have constituted sexual abuse under section
2242, which would have required Rice to have threatened "Matt" or
placed him in fear, unless "Matt" was "incapable of appraising the
nature of the conduct." 18 U.S.C.A. § 2242(2)(A). The factual basis
for Rice’s plea simply does not allow us to conclude without exces-

ther figure" who could not only instruct "Matt" in sexual matters but
could also provide exciting opportunities for "Matt" to participate in vari-
ous activities that would interest a thirteen-year-old boy. None of this
evidence, however, was charged in the indictment or put into the record
during Rice’s guilty plea. Thus, it would be inappropriate to consider this
evidence in the initial selection of the proper guideline. See Lambert, 994
F.2d at 1092 (explaining that "selection of the appropriate sentencing
guideline must turn . . . on the perceived similarity of the crime charged
in the indictment and the guideline ultimately selected"); U.S.S.G.
§ 1B1.2 comment. (backg’d) ("Where a stipulation . . . made between the
parties on the record during a plea proceeding specifically establishes
facts that prove a more serious offense . . . than the offense [charged in
the indictment], the court is to apply the guideline most applicable to the
more serious offense.").
                        UNITED STATES v. RICE                         7
sive speculation that "Matt" was incapable of understanding what
Rice was proposing. Rice’s proposed conduct did not rise to the level
of attempted sexual abuse but would have instead, if completed, con-
stituted the crime of statutory rape. Therefore, U.S.S.G. § 2A3.2 is the
applicable guideline in this case.

   We hasten to add, however, that the factors identified by the dis-
trict 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 statu-
tory rape and remove this case from the heartland of cases sentenced
under U.S.S.G. § 2A3.2. Although the district court suggested it
would depart upward if we determined U.S.S.G. § 2A3.2 was the
proper guideline, it did not in fact depart or follow the procedure out-
lined in Koon v. United States, 518 U.S. 81 (1996). Accordingly, that
issue is not currently before us.

   We also reject the Government’s argument that statements in the
Background Commentaries dictate a different result. The Government
first refers to language appended to U.S.S.G. § 2A3.1 which states:
"Sexual offenses addressed in this section are crimes of violence."
U.S.S.G. § 2A3.1 comment. (backg’d) (1998). From this the Govern-
ment argues that Rice’s proposed conduct would have been a crime
of violence and hence covered by § 2A3.1 only. The Government
points to the fact that Rice was much older than the purported victim
and argues that his conduct presented a substantial risk of physical
harm and a substantial risk that, during the rendezvous, Rice would
end up employing physical force to ensure "Matt’s" compliance.
Given the complete disclosures made in this case, we are not comfort-
able with this degree of speculation. Simply as a matter of logic, it
seems to us the same risks identified by the Government inhere in
conduct that violates section 2243(a) even if there is no extreme age
disparity.

   Additionally, the Background Commentary to U.S.S.G. § 2A3.1
provides as follows: "Any criminal sexual abuse with a child less than
twelve years of age, regardless of ‘consent,’ is governed by § 2A3.1."
The government’s argument implies that, even absent sufficient indi-
cia of violence or force, "Matt’s" young age — thirteen — renders
§ 2A3.1 applicable. Were we to agree, we would necessarily adopt a
8                        UNITED STATES v. RICE
categorical rule mandating the application of § 2A3.1 instead of
§ 2A3.2 when the contemplated sexual offense involves a thirteen
year old victim. Given that the Guidelines currently provide for such
a categorical rule with respect to victims who are under the age of
twelve, we decline to extend the rule to thirteen year old victims.

   Second, the Government argues that the Background Commentary
to U.S.S.G. § 2A3.2 controls our decision. It reads in toto as follows:
"This section applies to sexual acts that would be lawful but for the
age of the victim. It is assumed that at least a four-year age difference
exists between the victim and the defendant, as specified in 18 U.S.C.
§ 2243(a). An enhancement is provided for a defendant who victim-
izes a minor under his supervision or care." The Government directs
our attention to the first sentence and asserts that the test of lawful-
ness should be under state law. Because Virginia outlaws the particu-
lar sexual acts Rice proposed, the Government believes U.S.S.G.
§ 2A3.2 should be excluded from consideration.

   We do not accept the Government’s argument. The statute under
which the defendant was prosecuted expressly requires that the sexual
act intended be one as defined by federal law, and prosecutable as
well as a federal offense:

    A person who travels in interstate commerce . . . for the pur-
    pose of engaging in any sexual act (as defined in section
    2246) with a person under 18 years of age that would be in
    violation of chapter 109A if the sexual act occurred in the
    special maritime and territorial jurisdiction of the United
    States shall be fined under this title, imprisoned not more
    than 15 years, or both.

18 U.S.C.A. § 2423(b) (emphasis added). Given these statutory
requirements, we decline to pull a sentence out of the Background
Commentary to impose another layer of consideration that would be
based on the vagaries of state laws regulating sexual activities.
Indeed, to do so would be inconsistent with the policies underlying
the Sentencing Guidelines. A primary Congressional aim in establish-
ing the Sentencing Guidelines was the promotion of "reasonable uni-
formity in sentencing by narrowing the wide disparity in sentences
imposed for similar criminal offenses committed by similar offend-
                         UNITED STATES v. RICE                          9
ers." U.S.S.G. Ch. 1 Pt. A, p.s. Although we recognize that the Sen-
tencing Guidelines direct us to refer to state law on occasion, see, e.g.,
U.S.S.G. § 4B1.2 (defining "crime of violence" to include "offense[s]
under federal or state law"), we should read the Guidelines with fed-
eral law in mind unless specifically instructed otherwise. See United
States v. Reed, 94 F.3d 341, 344 (7th Cir. 1996) (explaining that
"[l]ike any other federal statute, the Guidelines must be interpreted in
accordance with federal law, even when those Guidelines refer to
some event occurring in state court" and noting that the Guidelines
section at issue contained "[n]othing . . . suggest[ing] that [the court]
should look to state law").

                                   III.

   In sum, we conclude that U.S.S.G. § 2A3.2, the statutory rape
guideline, is the most analogous guideline for Rice’s offense. Accord-
ingly, we vacate Rice’s sentence and remand for the sentencing court
to apply that guideline and for further consideration, including
whether an upward departure would be appropriate.

                                          VACATED AND REMANDED
