In United States v. Broussard, the Fifth Circuit addressed whether (1) defendant's conversations with minors suggesting meeting for sexual activity but without travel was a substantial step, and (2) imposing a 40-year sentence to give the defendant "treatment" was reasonable. 669 F.3d 537 (5th Cir. 2012). The court upheld the guilty plea as the substantial step issue was not plain error, but vacated and remanded the sentence because the court considered Broussard's rehabilitation.
Broussard had met the victims on Facebook, obtained their cell phone numbers, and conversed with them through text messaging about meeting to engage in sexual activity. No definite travel plans were made. Broussard pleaded guilty to attempting to persuade a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, he argued that his guilty plea should not have been accepted as he made no substantial step because the conversations were "'all fantasy' and 'just talk,'" and he made no attempt to meet with the victims.
Courts use a two-factor test to prove attempt under § 2422(b), requiring that the defendant "(1) acted with the culpability required to commit the underlying substantive offense, and (2) took a substantial step toward its commission." A "substantial step" does not require that "sexual conduct occur," (United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)), nor does it require "travel or preparations in advance of travel" (United States v. Barlow, 568 F.3d 215 (5th Cir. 2009)). However, mere preparation does not satisfy the requirement. United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001).
Ultimately, the court held that because it has yet to rule as to whether this conduct constitutes a substantial step, it was not plain error for the district court to accept the guilty plea. Other courts provide some guidance on the issue. Recently, the Court of Appeals for the Armed Forces held that asking "u free tonight" was not a substantial step as "[t]here was no travel, no 'concrete conversation,' such as a plan to meet, and no course of conduct equating to grooming behavior." (See my prior post here.) The Ninth Circuit has held, "[T]he substantial step must 'unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007).
At sentencing, the trial court found Broussard a "scary individual when it comes to children" and stated that he "is sick in the head." As such, the judge felt that imposing 40 years of imprisonment followed by lifetime supervised release was a way to provide Broussard with "the treatment that he needs." Citing the Supreme Court in Tapia, the Fifth Circuit vacated the sentence because courts may "are prohibited 'from imposing or lengthening a prison term to promote an offender's rehabilitation.'" Tapia v. United States, 131 S. Ct. 2382, 2391 (2011). The sentence was plain error and was remanded.