                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4310



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

          versus


BRETT M. GOLD,

                                               Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (CR-02-131-WMN)


Submitted:   October 5, 2004             Decided:   November 16, 2004


Before WILLIAMS and SHEDD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation


Reversed and remanded by unpublished per curiam opinion.


Thomas M. DiBiagio, United States Attorney, Stephanie A. Gallagher,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant.      David B. Irwin,
IRWIN, GREEN & DEXTER, L.L.P., Towson, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       In this case, the Government appeals from a downward departure

granted   to   a    recidivous     pedophile,    based   on   the   “degree    of

enticement” used by an undercover FBI agent.               (J.A. at 100-01.)

Because there was no basis for the departure, we reverse.

                                         I.

       In 1998, at the age of 28, Brett M. Gold had sex with a

thirteen-year-old girl whom he had met and pursued during internet

chat sessions. Gold was arrested and convicted of carnal knowledge

of a minor in violation of Va. Code Ann. § 18.2-63 (Michie 2004).

After serving a year in jail, Gold was released on probation.

       While   still      on   probation,      Gold   began    having    online

communications with an undercover FBI agent, who was posing as a

thirteen-year-old girl named Emma.            Eventually, Gold, who lived in

Virginia, made plans to visit Emma in Maryland so the two could

have   sex.        Gold   missed   the   first   scheduled    tryst     when   he

encountered heavy traffic on his way from Virginia to Maryland.

Gold and Emma continued chatting and e-mailing each other, and

eventually the two arranged another meeting.             When Gold arrived at

the scheduled meeting place, he was arrested.             At the time of his

arrest, Gold was carrying a backpack containing, among other items,

condoms, Vaseline jelly, a pair of earrings, and an envelope

bearing the name Emma.




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      Gold was indicted for and pleaded guilty to a violation of 18

U.S.C.A. § 2423(b) (1996) (current version at 18 U.S.C.A. § 2423(b)

(West Supp. 2004)), which makes it illegal to travel across state

lines with the intent to engage in a sexual act with a minor after

having been convicted of a sex offense.             At sentencing, the

district court departed downward two levels from the applicable

guideline range because of the “element and . . . degree of

enticement,” which gave the case a “coercion aspect.”           (J.A. at

100-01.)

                                 II.

      “We review the district court's factual determinations made in

connection with sentencing for clear error, and review the ultimate

decision to depart de novo.”    United States v. Stockton, 349 F.3d

755, 764 (4th Cir. 2003) (citation omitted), cert. denied, Stockton

v. United States, 124 S. Ct. 1695 (2004);       18 U.S.C.A. § 3742(e)

(West Supp. 2004).   “Under the Sentencing Guidelines, a district

court must ordinarily impose sentences within the range specified

by the applicable guideline.”     United States v. Rybicki, 96 F.3d

754, 757 (4th Cir. 1996).    “Each guideline attempts to anticipate

a broad range of typical cases -- a ‘heartland’ -- that is

representative of the circumstances and consequences of ordinary

crimes of the type to which the guideline applies.”       Id.   “Only if

the   district   court   determines    that   the   circumstances    and

consequences of a case are ‘atypical’ or ‘unusual’ and, therefore,


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that the case does not fall within the guideline’s heartland may it

. . . depart from the specified sentencing range.” Id.                          “To

determine whether a circumstance or consequence is ‘atypical’ or

‘unusual,’ and, therefore, capable of taking a case out of the

applicable guideline's heartland, district courts should consider

not   only       the   Guidelines   themselves,   but   also   the    Sentencing

Commission’s policy statements and official commentary.” Id.

“‘Encouraged’ factors are usually appropriate bases for departure.”

Id. at 757-58 (citations omitted).

      If     a    defendant   commits   an   offense    “because     of     serious

coercion, blackmail, or duress,” the Guidelines encourage a court

to sentence that defendant below the applicable guideline range.

U. S. Sentencing Guideline Manual § 5K2.12 (2002). Nonetheless,

“coercion will be sufficiently serious to warrant departure only

when it involves a threat of physical injury, substantial damage to

property or similar injury resulting from the unlawful action of a

third party or from a natural emergency.” Id.

      In this case, the district court believed that the “degree of

enticement” by the FBI agent posing as a victim removed this case

from the guideline’s heartland and allowed the court to depart on

the “encouraged” factor of “coercion” and “duress.”                       This was

error.     See United States v. Russell, 917 F.2d 512, 516 (11th Cir.

1990)      (“[D]efendant      has   introduced    no    evidence     that    [his]

co-defendant . . . engaged in anything more substantial than


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run-of-the-mill persuasion -- just words and enticing, as opposed

to threatening, words at that -- in enlisting [the defendant] in

the crime. . . .”).       None of the agent’s communications with Gold

threatened   him   with    “physical       injury,   substantial    damage   to

property or [a] similar injury.”            U.S.S.G. § 5K2.12.      Indeed, a

review of the communications between the two shows that the agent

did nothing more than play the role of a thirteen-year-old girl who

was willing to meet and have sex with an older man.                (See, e.g.,

J.A. at   39-40, 69-75.)      The agent did not threaten, coerce, or

blackmail Gold in any way.      This simply is a run-of-the-mill case

of an internet predator seeking out a victim who desired to engage

in sexual activity with him.           There is nothing “atypical” or

“unusual” about this case warranting a departure.           Accordingly, we

reverse the district court’s downward departure and remand for re-

sentencing within the applicable guideline range.

                                                      REVERSED AND REMANDED




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