United States of America v. Earl G. Rice, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2023
Decided March 20, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1406
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EARL G. RICE, JR.,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:19-CR-30167-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Earl Rice appeals his 50-year sentence for enticing a minor, 18 U.S.C. § 2422(b),
traveling with intent to engage in illicit sexual conduct, id. § 2423(b), and sexually
exploiting a minor, id. § 2251(a). He argues that the district court erred by imposing a
five-level enhancement under the federal Sentencing Guidelines for a “pattern of
activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b). A “pattern” must
include at least two “separate occasions” of prohibited conduct, id. § 4B1.5 app.
n.4(B)(i), and Rice insists that his unlawful acts could constitute only one occasion
because they were continuous, interrelated, and close in time. Rice did not object to the
enhancement in the district court, so we review only for plain error.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1406 Page 2
The trial and sentencing evidence show that in February 2018, Rice met a 13-
year-old girl, CJ, on a dating app, where they exchanged messages for two days. CJ’s
testimony and the Presentence Investigation Report characterize some of the earliest
messages as “sexual.” On February 14, the pair messaged about meeting for sex. By
shortly after 10 p.m. that evening, Rice had driven from Missouri to Illinois, picked CJ
up near her grandmother’s house, and taken her to a hotel. By 6:30 a.m. on February 15,
CJ was back at her grandmother’s. At the hotel, Rice and CJ engaged in multiple rounds
of oral and vaginal sex, interspersed with sleep and his taking two nude photos of her.
At sentencing, as at trial, Rice represented himself. The district court adopted the
PSR’s five-level enhancement under U.S.S.G. § 4B1.5(b)(1) for “a pattern of activity
involving prohibited sexual conduct.” Rice did not object to this enhancement, and the
district court calculated his offense level at 43, which, when combined with a criminal
history category of VI, yielded a guideline recommendation of life imprisonment. The
district court sentenced him to 50 years’ imprisonment. Now represented by counsel,
Rice argues that the district court should not have applied the § 4B1.5(b) enhancement.
Without the enhancement, his guideline range would be 30 years to life, rather than a
flat range of life imprisonment.
Both parties agree that the plain-error standard applies. To establish reversible
plain error, Rice must show that the district court made a “clear” or “obvious” error (in
light of precedents available to us on appeal) that affected his substantial rights and the
fairness or integrity of the proceedings. Henderson v. United States, 568 U.S. 266, 279
(2013); United States v. Olano, 507 U.S. 725, 732, 734 (1993); United States v. Boyle, 28 F.4th
798, 802 (7th Cir. 2022).
Section 4B1.5(b) of the Sentencing Guidelines adds five levels if an offense of
conviction is a “covered sex crime” and the defendant engaged in a “pattern of activity
involving prohibited sexual conduct.” An application note adds that the “pattern” of
prohibited conduct must cover at least two “separate occasions.” Id. § 4B1.5
app. n.4(B)(i); see United States v. Katalinic, 510 F.3d 744, 746 (7th Cir. 2007) (commentary
must be used to interpret guidelines).
Rice argues that his prohibited sexual conduct did not occur on “separate
occasions” because the physical encounter and prior online messages about its logistics
formed “a single episode” that spanned February 14 and the morning of February 15.
The government counters that, among other things, Rice’s enticement of CJ through
online messages and the physical sexual encounter may be viewed as “separate

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No. 22-1406 Page 3
occasions” because they occurred over multiple days and Rice could have stopped
acting unlawfully between committing the enticement and meeting CJ—across the state
line—for sex.
We have not yet considered whether § 4B1.5(b) applies to a fact pattern like this
one. We have directly considered § 4B1.5(b)’s scope in only one published opinion,
which upheld the enhancement where a defendant had sex with one victim multiple
times over the course of one month. See United States v. Norwood, 982 F.3d 1032, 1059
(7th Cir. 2020). But we did not confront anything like this question—whether enticing a
minor with online messages before driving across state lines and having sex with her
constitutes a set of “separate occasions.”
Wooden v. United States, 142 S. Ct. 1063 (2022), which examined the plain meaning
of “occasions” in context of the Armed Career Criminal Act, may provide guidance.
Wooden considered whether burglaries of 10 adjoining storage units in one night were
committed on “occasions different from one another.” Id. at 1067. The Court said no:
“Convictions arising from a single criminal episode, in the way Wooden’s did, can
count only once under ACCA.” Id. The Court also set forth a multifactor analysis for
identifying whether distinct acts took place on different “occasions,” explaining that the
timing, location, and character and relationship of offenses may all be relevant. Id. at
1071. Rice and the government both argue that Wooden supports their positions.
We do not decide who is correct, because the answer is less than plain. Even if
Wooden guides courts in deciding whether criminal conduct occurred on one or more
“occasions” for purposes of U.S.S.G. § 4B1.5(b), it is not obvious how to classify Rice’s
conduct under Wooden’s multifactor test. The interrelatedness of the offenses may cut in
Rice’s favor; the enticement and travel to Illinois may be sufficiently wrapped up in the
scheme to have sex with CJ to constitute a single occasion. But the timing and location
factors point the other way: Rice’s online enticement began hours if not days before the
physical sex acts, when Rice and CJ were separated by many miles and a state border.
And although it may not be dispositive that Rice had an opportunity to stop the scheme
at various points, see id. at 1067, we have interpreted Wooden’s test to allow courts to
consider a defendant’s opportunity to stop when parsing different occasions, see United
States v. Richardson, 60 F.4th 397, 400 (7th Cir. 2023).
The answer to a question of first impression is rarely “plain,” United States v.
Ramirez, 783 F.3d 687, 695 (7th Cir. 2015), and nothing about the narrow legal question
here takes it outside the realm of reasonable debate, see Wooden, 142 S. Ct. at 1081

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No. 22-1406 Page 4
(Gorsuch, J., concurring in judgment) (expressing concern that “[m]any ambiguous
cases are sure to arise” under the Court’s new test). Because the district court did not
plainly err in applying the § 4B1.5(b) enhancement, we do not disturb Rice’s sentence.
AFFIRMED

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