### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30274

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. DANIEL JAMES BROUSSARD, Defendant - Appellant

Appeal from the United States District Court for the Western District of Louisiana

Before KING, JOLLY, and WIENER, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Daniel James Broussard pleaded guilty to two counts of using a facility of interstate commerce to attempt to coerce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b). Broussard engaged in sexually explicit conversations with minors over the internet a n d b y text messaging on

a cellphone in which he discussed meeting with the minors for sex. The district court, calling Broussard “sick in the head,” was not inclined to be lenient. It sentenced Broussard to imprisonment for 240 months (20 years) per count to run consecutively, for a total term of imprisonment of 480 m o n t h s ( 4 0 years). The sentence is a significant upward variance from Broussard’s calculated guideline U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 1, 201 2 Lyle W . Cayce Clerk Case: 11-30274 Document: 00511744809 Page: 1 Date Filed: 02/01/2012No. 11-30274

range of 120 months (10 years) of incarceration. Broussard is not happy with his plea of guilty nor his sentence. On appeal, he challenges the sufficiency of the factual basis of his plea, contending that his actions towards the minor victims did not constitute a substantial step toward persuading the minors to engage in criminal sexual activity because he never made p l a n s to travel to meet them. Broussard also objects to the procedural and substantive reasonableness of his sentence, including the district court’s consideration of the Government’s latesubmitted sente n c i n g memorandum. We hold that Broussard fails to demonstrate that the district court committed plain error in finding a sufficient factual basis for his plea. Alth o u gh w e uphold his guilty plea, we vacate Broussard’s sentence because the district court improperly relied on Broussard’s rehabilitative needs in lengthening his sentence. We remand for resentencing. I. According to the affidavit filed with the cri m inal complaint, on June 11, 2010, Lafayette Police Department (“LPD”) Officers Thibodeaux and Royer were dispatched to an address in Lafayette, Louisiana regarding a compla i n t of indecent behavior with a minor female. Upon arrival, the officers met with the complainant, the mother of the minor female victim late r i d entified in court documents as “KP.” KP’s mother informed the offi c e r s t h a t KP had been communicating with a man, “Robbie Wade , ” o v er the internet and cellphone. Broussard would later stipulate to using the nam e “Robbie Wade” to communicate with KP and the other minor victims. KP’s mother explained that the contact had been friendly at first, but then turned sexual, with KP informing her mother that Broussard had convinced her to sho w v a ri ous parts of her body and masturbate in front of a webcam. 1 Broussard would later stipulate that he had threatened to show naked pictures

A we bcamis a videoc ame ra thatf eed s real -t im e i mage s over the inte rnet

. 1
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of KP to her frie n d s if she did not masturbate for him over the webcam. KP’s mother also told the officers that Broussard had sent a picture of his penis to KP and told her that he wanted them to meet to have sex, whi ch he wanted to videotape. The officers, with her mother’s consent, took KP’s laptop computer,
camera, and cellphone for further examination. A forensic review of the laptop recovered one image of a male penis, which KP later identified as the photo image sent to her by Broussard. On June 23, 2010, Detective Bajat of the LPD interviewed KP, and she confirmed the information provided by her mother to Officers Thibodeaux and Royer. Investigators tracked the cellphone number provided by KP as belonging to Robbie Wade to a “Danie Broussard.” They lear n e d th a t Broussard was a tw e nty - one-year-old student at the University of Louisian a - L af ayett e , s ch e dul e d to graduate in 2013, although not currently enrolled. On June 25, 2010, officers executed a state search warrant at Broussard’s apartment in Lafayette. He was not there; however, his roommates infor m e d the officers that Broussard had been living in Tulsa, Oklahoma for the past few months with his aunt and uncle

w hile he recovered from a severe leg fracture. During the search, offic e r s

r ecovered a fifty-nine page journal locked in a briefcase that later wou l d b e attributed to Broussard. LPD officers contacted the Tulsa Polic e D e p a r tment, which obtained a state search warrant based o n the LPD’s information for the aunt and uncle’s

r e sidence in Tulsa. Officers executed it, arrested Broussard, and seized hi s laptop computer. Broussard waived h i s Miranda rights and agreed to answer questions. In a w ri t ten questionnaire, he acknowledged engaging in conversations or chats, sexual in nature, with individuals he knew to be under the age of eighteen. He further admitted to using his Skype account to solicit or send pornographic or lewd text messages to individuals under the age of

e i ghteen. He estimated that the last time he had engaged in sexually explicit

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webcam activity with someone under the age of eighteen had been a week and

a half prior to hi s a rrest. That activity had included “watching a girl on the webcam, having her disrobe.” A few days before that, he told investigators that he had w a t ched a thirteen- or fourteen-year-old girl masturbate. When asked by investiga t ors how many sexual experiences he had with minors over the webcam, Broussard gave a “ballpark figure” of about a “hundred different individual instances,” although he esti m at e d that those experiences represented only approximately thirty-five minors between thirteen and eighteen years old. On J u l y 1 3, 2010, Broussard was indicted on one count of production of child pornography and one count of using a facility of interstat e c ommerce to attempt to coerce a minor t o e ngage in criminal sexual acts. He pleaded not 2 guilty to the charges at his arrai gn m e n t. A subsequent forensic download of Broussard’s cellphone information by federal agents, however, revealed that he also had been communicati n g w i t h a t least three other minor females in a

sex u a l ly explicit manner. Interviews conducted with these minor females revealed that each female had sent text messages to Broussard and also received text messages from him in return. Each victim acknowled g e d t hat Broussard had talked to them about meeting for sex, and that Broussard was aware that they were minors during the course of their conversations. All three victims reported meeting Broussard on Facebook, afte r w h i ch they provided him with their respective cellphone numbers. On August 10, 2010, a superseding indictment was filed ag a i nst Broussard. Count One charged him w i th production of child pornography, in

vi o l a ti o n of 18 U.S.C. § 2251(a). Counts Two through Five charged him with using a facility of interstate commerce to attempt to coerce a minor to engage in

On July 1, 2010, a cri mi nal com plai nt wa s fil ed agains t Brous sar d char ging him wi th 2 pr oduc tio n of childporno grap hy, usi ng a facilit y of inter st ate co mm erc e to att em ptto coer ce a m inort o e ngage i n c rim inal se xual a cts , and pos se ss ion of childp orno grap hy. 4 Case: 11-30274 Document: 00511744809 Page: 4 Date Filed: 02/01/2012No. 11-30274

criminal sexual acts, in violation of 18 U.S.C. § 2422(b). Counts One and Two 3 referenced Broussard’s co n du ct toward KP. Counts Three through Five referenced victims “TL,” “KH,” and “LC,” respectively, who were the three other minor female victims discovered during the forensic review of Broussard’s cellphone. Broussard and the Governmen t negotiated and entered into a plea agreement. On September 27, 2010, Broussard pleaded guilty to Counts Three and Four of the superseding indictment, which referenced his sexually explicit communications with victims TL and KH, respectively. In the plea agreement and during the plea hearing, Broussard stipulated that, in June 2010, he began communicating with KP over the internet and eventually convinced her to masturbate over the webcam. Broussard further stipulated that, during June, he began communicating via text m e s s age on a cellphone with minor females TL, age thirteen; KH, age thirteen; and LC, age fourteen. Broussard stipulated that during his conversations with TL, KH, and LC, he discussed meeting with each of them to engage in sexual activities. When asked during the plea colloquy if he did everything the Government said he did, Broussard answered yes. The district c o u rt accepted his plea. Under the plea agreement’s terms, the remaining counts were dismissed after Broussard’s sentencing. I n p re p arin g Broussard’s pre-sentence report (“PSR”), th e p rob atio n of f ic er calculated a comb i n e d adjusted offense level of 29 and assigned a criminal history category I, yielding a guidelines range of imprisonment of 87 to 108 months. The mandatory minimum sent e nc e under 18 U.S.C. § 2422(b), however, is 120 months (10 years), and the maximum is life imprisonment. Because the

Lou isi ana lawp rohibits t he useof a com put er or “el ect roni c text ual com municat ion 3

. . . for the pur pos e of or wi th the inte nt to per sua de, indu ce, enti ce, or coe rce [a per so n unde r the age of se vente en] to engage or par tic ipa t e i n s e x u a l c ondu ct

. . . or wi th the inte nt to engage or par tic ipat e in se xual conduct in the pr es ence of the p e rs on. ” LA

. R EV

. S T AT

. ANN

. § 1 4:81 .3(A)( 1). 5 Case: 11-30274 Document: 00511744809 Page: 5 Date Filed: 02/01/2012No. 11-30274

statutory mandatory minimum sentence is greater than the guideline range maximum, the statutory minimum of 120 months became Broussard’s guideline sentence. See U.S.S.G. § 5G1.1(b). The P S R noted that there were “no known

or mitigating or aggravating circumstances” that would warr a nt a departure from the guideline sentence, or a n y “factors that would support a sentence outside of the guideline system.” Neither party objected to the PSR. Three c a lendar days and one business day before Broussard’s scheduled sentencing, the Government submitted its sentencing memorandum in which it argued that an upward variance from the guidelines range of 120 m o nths was warranted. More specifically, the Government advocated that a sentence of 360

m onths (30 years) was appropriate considering the nature of Broussard ’ s criminal activity and the need for him to obtain correctional treatment. The government attached as evidence, and focused on, Broussard’s journal, found in his Lafayette apartment, in which he describ e d himself as a “pedophile,” and wrote detailed, apparently fictional stories about engaging in incest with family members and in sexual activities with minor females. Based on the similarities between Broussard’s discussions with the female victims about engaging in

s e x u al activities and the writings in the journal about engaging in sex wi t h 4
young girls, regardless of their accuracy, the Governm ent contended that it is “clear [ ] that [Broussard] is excited by e n g aging in sex acts with young children.” Tu r n i n g to the 18 U.S.C. § 3553(a) f actors, the Government next argued that Broussard’s conduct was more egregious than t h e “t ypical” offender prosecuted under 18 U.S.C. § 2 4 2 2 (b ); “typical” meaning a defendant who engages in explicit chats with an undercover officer, instead of an actual minor,

or with one victim, instead of several victims. Because Broussard attempted to

N o o ne dis put es t hat the st orie s writt en in the journa l d id not act ually tak e p lace

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cause several minor f

e m al e s to e n gage in criminal sexual activities, sent sexually

e x p l i c it images of himself to minors, and sought sexually explicit images o f minors in return, th e G overn m ent maintained that he deserved a sentence above the mandatory minimum. Furthermore, citing a statement of a p s ycholo gi s t who treats sex offenders , t h e Government contended that 360 months of i m p risonment was justified by the need to deter other offenders seeking t o exploit minors in a manner similar to Broussard. Addit i o n ally, the sentence would place children out of Broussard’s grasp for quite awhile. Finally, arguing that Broussard “clearly needs long term help,” the Government urged the court to incarcerate Broussard in a facility focused on the treatment of sex offenders so that “he can get long term therapy and counseling.” Broussard’s attorney filed a reply the day bef o r e t he hearing, arguing, inter alia , that the district court should disregard the Gove rnment’s memorandum because of its untimeliness. He also objected to the memorandum insofar as it referred to a statement of a psychologist who had never examined him or rendered an opinion in his case. Bro u s s ard’s sentencing occurred as scheduled. Indeed, neither party voiced any o bj e c tion when asked by the court if a continuance was needed because of the Government’s late submission. The cou rt a gr e ed that the Government’s memorandum had been submitt e d “very late,” but declined Broussard’s suggestion to disregard it entirely; instead, the court announced it

wo ul d c o n s i der b oth th e Government’s memorandum and Broussard’s re p ly . Th e court then heard testimony from Broussard’s uncle and from a case agent. Before imposing a sentence, the district court had Broussard confirm the information to which he had stipulated in the p l e a agreement and during the plea c o l loquy. Broussard again affirmed that he had sexually explicit conversations or chats with approximate ly thirty-five different minors. Broussard also confirmed he had told some of the minor females that he wanted

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to meet to have sex with them. Br o u s s a r d s t a ted, however, that he had never h a d sex with a minor; that it was “all fantasy.” The district court then asked , “But you were trying to set up meetings with some of these girls that were under 18 years of age?” Broussard responded that he had “mentioned that with them, but it was just talk.” After argument, the district court imposed Broussard’s sentence. Because Broussard has challenged the procedural and substantive reasonableness of the district court’s sentence, we produce the entirety of the sent e n c i n g colloquy below: The advisory applications of t h e guidelines are as follows: The defendant’s offense level is 29. The defendant’s criminal history is Category I. The advisory guideline range i s 8 7 t o 108 months of imprisonment per count with a statutory pr o vi sion of 10 years to life. So no less than ten to life per count. Probation is not applicable. Five years to life of supervised release per count. A fine of between $15,000 and $150,000. Restitution i s not applicable. And a special assessment of $100 per count pur s u a n t t o 18 U.S.C. [§] 3013 is required.
The Court has taken into consideration all of the factors as previously stated in 18 U.S.C. [§] 3553.
Number o n e , the nature and circumstances of the offense and the history and characteristics o f t h e defendant. There has only been one other defendant I’ve had before me that I considered more dang e r o u s than this individual, and at the time the mandatory maximum sentence the Court could give was 10 years. That was a guy by the name of Byrd that was prosecuted here. I thought it was reprehensible that we had a guideline range with the maximum sentence that could be imposed on that individual was only 10 years. Then I couldn’t unders tand why he was not prosecuted by the state for true child molestation, but that was out of my control and out of the control of the U.S. Attorney’s office and the individual prosecutor who handled that thing who happens to be Mr. Walker. Two, the need for the sentence imposed, (A), to reflect t he seriousness of the offense. They don’t get much more serious.

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T o promote respect for the law and to provide just punishment for the offense. When we talk about just punishment and we look at t h e other sentences that this Court has ordered over the years, I have in fact recently imposed a sentence of about 14 and a h a lf y e ar s on an individual who in my opinion was less culpable than this individual. (B), to afford adequate deterrence to criminal conduct which means incarceration which is going to happen here. (C), to protect the public from further crimes of the defendant. Thank God that – whether this was a fantasy or carry-out , y o u know, history is full of individuals who start off with fantasies and end up with the reality of carrying out those fantasies. This young man is sick i n the head. He needs help badly. He knows the difference between right and wrong, there is no doub t about that, but he doesn’t see m to care when it comes to fulfilling his fantasy. And the fantasy started off with the probability that all o f t h e se things that he said in those writings were fantasy, but he continued with the fantasy in reality. That’s a scary thing. This is a scary individual when it comes to children.
And this gentleman is in – and I use that t e r m very loosely. This individual – I shouldn’t say gentleman – is in ne e d o f e ducation pertaining to his p r o b l e m s and he needs medical care and treatment.
The kind of sentences available is a minimum ten years, a maximum of life. That’s the kind of sentence that is available.
Number six is what [defendant’s counsel] is stressing. The need to avoid unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct. It’s a compell i ng part of the sentencing process, but not as compelling as the need to incarcerate this individual for the treatment that he needs.
T he Court will impose the following sentence without hesitation

. Hopefully others will read and hear about this type of sentence and not continue to prey on children in this or any other community

– not only in the United States, but everywhere.

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Th e C o urt will order the following sentence: 240 months of imprisonment per count to run consecutively. Of course there is no probation. The Court will order that the defendant, o n ce his released, will be on life supervised release. Broussard did not obj e c t t o his sentence, on either procedural or

s ub s t a n tive grounds, after the court finished the colloquy. Broussard did, however, file a motion for reconsideration on March 10, 2011, in which he moved for the sentence to be vacated on the ground that the district court did not give notice that it was going to depart upwardly from the calculated guideline range in accordance with Federal Rule of Criminal Procedure 32(h). Broussard asserted that this failure, coupled with the late submission of the journal, which he maintained the district court accepted as persuasive evidence for an upward departure, prejudiced him. The district court denied the motion without written reason on March 17. Broussard timely appealed the next day. O n appeal, Broussard challenges the factual basis supporting his convictions for using a facility of interstate commerce to attempt to coerce a minor to engage i n c ri minal sexual activity. He also argues that his sentence should be vacated because it was procedurally and substantively unreasonable. Finally, he contends that the district court’s consideration of the government’s sentencing memorandum violated his due process. We address each in turn. II. A. Broussard did not object to the sufficiency of the factual basis of his plea before the district court; instead, for the first time on appeal, he presen t s the question whether the undisputed factual basis is sufficient as a matter of law to sustain his plea. See United States v. Angeles-Mascote , 206 F.3d 529, 530 (5th Cir. 2000). We review a Federal Rule of Criminal Procedure 11 challenge raised for the first time on appeal for plain error. United States v. Vonn , 535 U.S. 55, 63 (2002). To meet this burden, the defendant must demonstrate that “the

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district court committed an error that was clear or obvious and that affected [his] substantial rights , ” and that “‘the error has a serious effect on the fairness, integrity, or public reputation of judicia l proceedings.’” United States v. Thompson , 454 F.3d 459, 464 (5th Cir. 2006) (quoting United States v. AlvaradoSantilano , 434 F.3d 794, 795 (5th Cir. 2005)). To show that the error affected his substantial rights, Broussard must demonstrate “a reasonable probability that, but for th e error, he would not have entered the plea.” United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004). B. First, we must determine if the district court committed a clear or obvious

error in accepting Broussard’s plea based on the factual record. Before accepting

a defendant’s plea of guilty and entering j udgment thereon, a trial court is required to determine that there is a factual basis for the plea. F E D

. R. C R I M

. P. 11(b)(3). The intention of Rule 11(b)(3) is to protect a defendant who voluntarily pleads guilty w i t h a n understanding of the nature of the charge but “without realizing that his conduct does not actually fall within the definition of the crime charged.” Angeles-Mascote , 206 F.3d at 530 (internal quotation marks omitted). The factual basis for a guilty plea must be in the record and “sufficiently specific to allow t h e c o u r t to determine whether the defendant’s conduct is within the ‘ambit of the statute’s prohibitions.’” Id. (quoting United S t a t e s v . Gobert , 139 F.3d 436, 439 ( 5th Cir. 1998)). Thus, the district court must compare: (1) the conduct to which the defendant admits; and (2) the elements of the offense charged in the indictment. United States v. Marek , 238 F.3d 310, 315 (5th Cir. 2001). Implicit then, in the district c o u r t’s acceptance of Broussard’s guilty plea, was its determination that Broussard’s admitted conduct satisfied
every element of 18 U.S.C. § 2422(b). Id. “In assessing factual sufficiency under the plain error standard, we may look b e yond those facts admitted by the defendant during the plea colloquy a n d s c a n the entire record for facts

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supporting his conviction,” and draw any fair infer e nces from the evidence. United States v. Trejo , 610 F.3d 308, 313, 317(5th Cir. 2010). Broussard p l e a d ed guilty to two counts of violating 18 U.S.C. § 2422(b) with respect to his conduct toward TL and KH. Under this section, a person may not, using the mail or any facility or means of interstate commerce, “knowingly persuade[ ], induce[ ], entice[ ], or coerce[ ] any individual who has not attained the age of 18 years, to engage in

. . . any sexual activity for which any person can be charged with a criminal offense, or attempt[ ] to do so.” 18 U.S.C. § 2422(b). The criminal sexual offen s e i m p l icated by Broussard’s conduct is defined by § 1 4 : 8 1.3 of the Louisiana Revised Statutes, which prohibits the use of a computer or “electronic textual communication

. . . for the purpose of or with the intent to persuade, induce, entice, or coerce [a person under the age of

seve nt e en] to engage or participate in sexual conduct

. . . or with the intent to engage or participate in sexual conduct in the presence of the person.” LA

. R E V

. S TAT

. AN N . § 14:81.3. Broussard stipulated to violating § 14:8 1.3(A)(1). The parties agree that Broussard pleaded guilty to an attempted violation of 18 U.S.C. § 2422(b). To prove attempt, the Government must establish beyond

a reasonable doub t that the defendant “(1) acted with the culpability required to commit the underlying substantive o f fense, and (2) took a substantial step t oward its commission.” United States v. Barlow , 568 F.3d 215, 219 (5th Cir. 2009). Thus, the G o v e rnment was required to demonstrate that Broussard intended to persuade, induce, entice, or coerce a person whom he believed to be

a minor to engage in criminal sexual conduct and “took a substantial step toward that persuasion or enticement.” Id. A “substantial step” is defined as “conduct 5 which strongly corroborates the firmness of defendant’s c ri m i nal attempt.”

Brous sar d doe s not chall enge that the ot her eleme nts of the off ens e are estab lis hed, 5 i. e. , thatt he victi ms w ereund er the age o f eighte en, and that he use d a me ans of inte rs tat e com me rceinvio lati ng t he st atut e. 12 Case: 11-30274 Document: 00511744809 Page: 12 Date Filed: 02/01/2012No. 11-30274

United States v. Farner , 251 F.3d 510, 513 (5th Cir. 2001). “[M]ere preparation” does not satisfy this standard. Barlow , 568 F.3d at 210 (quoting United States v. Mandujano , 499 F.2d 370, 373 (5th Cir. 197 4)). Broussard argues that there is no factual basis for an “attempt” theory to support his convictions because the Government failed to prove that he took any substantial step toward actual sexual contact by arranging a meeting with the alleged victims. Broussard relies on our decision in United States v. Farner , 251 F.3d 510 ( 5th Cir. 2001), to suppor t his argument. In Farner , we affirmed the § 2422(b) conviction of the defe n d a n t , who, over a four-month period, engaged in sexual l y e x p licit conversations via instant messaging, e-mail, and the t e lephone with what he believed to be a fourteen-year-old girl (in real i t y , a n undercover FBI agent), and attempted to persuade her to have sexual relations with him. Id. at 511. Farner and th e “ girl” eventually made arrangements to meet in Houston, Texas to engage in sexual activity, and Farner drove from his home in Dallas, Texas to meet her at a lo c a l Houston restaurant. Id. He was arrested at their meeting place. Id. In affirming his conviction under § 2422(b),

we concluded that the district court correctly found, beyond a reasonable doubt, that Farner intended to engage in sexual acts with a fourteen-year-old girl, and that he took substantial steps toward committing the offense. Id. at 513. Broussard contrasts Farner with the circumstances presented by his case. He argues that, unlike Farner , the conversations between himself and victims TL and KH were “all fantasy” and “just talk.” More importantly, he points out that, because he was living in Tulsa, Oklahoma and TLand KH were living in Lafayette, Louisia n a d u ring the time of the offense conduct, and there was no indication that he took a substantial step toward arranging a meet i ng with either girl, the factual basis was insufficient to support his convictions. Although Broussard casts Farner in a light that would appear to validate his argument, we never explicitly or implicitly ruled in Farner that a substantial

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step toward sexual contact was necessary to sustain a § 2 4 2 2 (b) conviction. Instead, as we specifically stated in United States v. Barlow , 568 F.3d 215 (5th Cir. 2009), a conviction under § 2422(b) “does not require that the sexual contact
occur, b u t t hat the defendant sought to persuade the minor to engage in that contact.” Id. at 219 n.10 (citing United States v. Bailey , 228 F.3d 637, 639 (6th Cir. 2000) (§ 2422(b) criminalizes “persuasion and the attempt to persuade, not the performance of the sexual acts themselves”)). Numerous other courts of appeals also have come to the same conclusion. 6 Nor have we explicitly or impl icitly ruled that a substantial step toward persuading a minor to engage in ille g al sexual activity requires travel or preparations in advance of travel. In Barlow , the defendant was convicted of attempting to persuade a person he believed to be a minor to engage in sexual activity in violation of § 2422(b). Id. at 217. The defendant h a d carried on correspondence via instant messaging and e-mail with what he believed to be a fourteen-year-old girl (in reality, an adult f e m a l e who freelanced for law enforcement to attract potential sex offenders), which had included engaging in explicit conversations, sendin g explicit photos of himself, and requesting explicit photo s o f t h e girl in return. Id. at 217-18. Eventually, they agreed to meet at

a state park in Mississippi, and during th e vi s it the defendant said he would show the girl the “inside of his tent.” Id. at 218. The defendant arrived at the state park at the des i gn a t e d t ime, but was spooked by an agent and left, although he was apprehended and arrested. Id. The defendant argued on appeal that there was insufficient evidence t o d emonstrate that he took a

See, e. g. , Uni ted States v. Lee , 603 F.3d 904, 914 (11t h Cir. 2010) (“With regar d to 6 cond uct , the governm ent mus t pr ove that the def enda nt too k a sub st antia l st ep toward causing
ass ent, not tow ard caus ing act ual se xual cont act .” ); Uni ted States v. Pie rso n , 544 F.3d 933, 939 (8t h Cir. 2008) (“The governm ent need not pr ove that the def enda nt inte ndedt o par tic ipat e i n a p h y sic al se xual act

. It is suf fic ient for the governm ent to pr ove that the def enda nt inte nded to per sua de or enti ce a mi nor to engage in illegal se xual activity. ”) ; Uni ted States v. Dw inne lls , 508 F.3d63, 70 (1s t Cir. 200 7) (r eject ing l anguage in Farn eras d ict a). 14 Case: 11-30274 Document: 00511744809 Page: 14 Date Filed: 02/01/2012No. 11-30274

substantial step toward persuading a minor to engage in sexual activity because he left the park be f

o r e the girl arrived. Id

. We disagreed, citing the nearly eleven months spent b ef ore the meeting during which the defendant pursued the girl. Id. at 219. The defendant’s pursuit had included attempting to persuade her to send explicit photos of herself, promising her a modeling career, making her feel good, and suggesting meetings and phone calls. Id. Finally, we noted that the defendant had driven to the state park and waited for the girl’s arrival, and his early departure did not undo the substantial steps he already had taken to that point. Id. at 219-20. Even though Barlow traveled to meet the girl and that “substantial step” is absent here, Barlow also illustrates that a substantial step toward persuading the minor t o a s s e n t to sexual contact can occur solely through communications with the minor. Thus, our inquiry focuses on wheth e r the record supports the allegation that Broussard took a substantial step toward persuading TL and KH to engage in illegal sexual activity. Id. at 219 n.10. The Government acknowledges that Broussard never met with any of the vi c t i m s , but argues that he took a substantial step when he crossed the line from mere talk to discussing his desire to meet with TL and KH to have sex. The Government notes that after Broussard met each vi c ti m on Facebook, he would soon obtain their cellphone numbers, and at some point thereafter, he would discuss meeting them for the
purpose of engaging in criminal sexual activities. Although Broussard could not h ave met the minor victims for sex at the time of the offense conduct, th e Government asserts that the record supports a finding that the purpose of Broussard’s communications with TL and KH was to set the stage for a future meeting when he returned to Lafayette, which he was scheduled to do within a few days but for his intervening arrest. The Government urges us, therefore, to infer Broussard’s intent to arrange a future rendezv o u s w i t h the two victims, and his conversations discu s s ing a future meeting to engage in sex thus

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amounted to a substantial step toward enticing the minor victims to engage in criminal sexual activity. 7 A r e vi e w of the facts in this case provides very few details ab o u t Broussard’s conduct toward TL and KH. The superseding indictment, which “can be used as the sole source of the factual b a s i s f o r a guilty plea,” simply tracks the language of 18 U.S.C. § 2422(b) and thus is not “sufficiently specific.” U n ited States v. Garcia-Paulin , 627 F.3d 127, 133-34 (5th Cir. 2010) (i n t e r n a l quotation marks omitted). The factual basis accompanying the plea agreement,
moreover, states only that Broussard “communicat[ed] using text messaging on

a cellular telephone to [ ] 1 3 year old minor[s] from the Lafayette, Louisiana
area, initials [TL and KH]” and that “[d]uring those conversations the defendant discus s ed meeting with the minor female[s] to engage in sexual activities.” During his plea colloquy, Broussard affirmed that the factual basis was correct,

a n d that he had conversations with KH and TL during which he di s c u s s e d meeting to engage in sexual activities, but there were no additional facts concerning TL and KH uncovered during the plea hearing. N o r does the PSR illumine Broussard’s interactions with KH and TL, stating only: A subsequent f

orensic download of Broussard’s cell phone information by federal agents r e v e a l ed that Broussard had been communicating w i th at least three (3) additional minor females. Int erviews conducted with these minor females[ ] revealed that each female had sent text messages to Broussard and also received text messages from Broussard. Each minor female victim acknowledged that Broussard had talked to them about meeting for sex, and each

The Go vernm ent put s f o r t h a s evide nce of Brous sar d’s sub st antia l st eps tow ard 7 cri mi nal se xual activity his cond uct wi th KP, the victi m ide ntif ied in Counts On e and Two of the sup ers edi ng ind ict me nt. Thos e c ount s, ho we ver, w ere dis mi ss ed unde r the ter ms of the ple a agree me nt, a n d B r o uss ard never adm itt ed to engaging in sim ilar cond uct wi th TL and KH

. Not w i t h s t a ndin g the Go vernm ent’ s pr ote st atio ns, we wi ll not cons ide r Brous sar d’s cond uct wi th KP to det erm ine if ther e is a suf fic ient fac tual bas is to sus tain his convic tio n for violat ing § 242 2(b) w ith res pec t to his c ondu ct tow ardTL and KH

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advised that Broussard was aware that they were minors during the course of their conversatio n s. All three minor females reported meeting Broussard on Face[b]ook and e v e ntually providing Broussard with their respective phone numbers. At the sentencing, furthermore, Broussard confirmed that he “had mentioned” setting up meetings with some girls under age eighteen to have sex with them, but qualified his answer by stating that it was “just talk” and “all fantasy.” In any event, TL and KH are never mentioned by name during the questions and

answers between the c o u r t and Broussard during the sentencing hearing. We are thus left with the following facts about Broussard’s conduct toward KH and TL: He became friends with each of them on Facebook; he then obtained t h e ir cellphone numbers; he then began conversing with each of them vi a t e xt message; and during tho s e conversations, Broussard discussed meeting with each minor female to engage i n s e x ual activities. No one disputes that Broussard never traveled or made definitive plans to travel to meet TL and KH, but as n o t e d above, we have never ruled that physical proximity or travel or plans to travel is necessary to constitute a substantial step under § 2422(b). See Barlow , 568 F.3d at 219-20; see also, e.g. , United State s v . G o e tzke , 494 F.3d 1231, 1236 (9th Cir. 2007) (attempti n g t o persuade, induce, entice, or coerce a minor to engage in criminal sexual activity is “an attempt to achieve the mental act of assent, for which physical proximity can be probative but is not required”); United States v. Yost , 479 F.3d 815, 820 (11th Cir. 2007) (“[T]ravel is not

n e c e s s a ry to sustain such a conviction.”); United States v. Thomas , 410 F.3 d 1235, 1246 (10th Cir. 2005) (“Thomas crossed the line from ‘harmless banter’ to inducement the moment h e b e gan making arrangements to meet [the victim], notwithstanding the lack of evidence that he traveled to the supposed meeting place.”)

. But see United States v. Gladish , 536 F.3d 646, 649 (7th Cir. 2008). Instead, the prohibited act of persuasion can occur over a distance, as the statute exp r e s sly contemplates, and logic would appear to dictate that having

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di s c u s sions with TL and KH about meeting to have sex is a substantial s t e p toward persuading them to have sex. See, e.g. , United States v. Rothenberg , 610 F.3d 621, 627 ( 1 1 th Cir. 2010) (“[T]he very nature of the underlying offense–persuading , inducing or enticing engagement in unlawful sexual activity–necessarily contemplates oral or w ritten communications as the principal if not the exclusive means of committing the offense.”). The explicit details of their conversations, although illustrative of the attempted persuasion,

are not necessary to draw that conclusion. But, as we have never addressed wheth e r obtaining a phone number and having conversations with a minor about meeting for illicit sexual activity constitutes a substantial s t e p t oward persuading a minor to engage in illicit sexual activity under § 2422(b)–nor has
any intervening decision clarified the issue–any error on the district court’s part in accepting Broussard’s plea on the factual basis establishe d b y t h e evidence could not be plain. Considering the casela w , a n d the arguments of Broussard and the Government, leads to one conclusion: any error by the district court is subject to reasonable dispute. By definition, that is not plain error. Puckett v. United States , 129 S. Ct. 1423, 1429 (20 09). B r o ussard also argues that an alleged violation of § 14:81.3 of th e Louisiana Revised Statute s d o e s not meet the definition of “sexual activity” under 18 U.S.C. § 2422(b), citing the Seventh Circuit’s decision in United States

v. Taylor , 640 F.3d 255 (7th Cir. 2011). In Taylor , the Seventh Circuit, applying the rule of lenity, held that “sexual activity” includes only actual touching and that persuading a minor to masturbate on a webcam therefore did not violate the statute. Id. at 259-60. Broussard acknowledges, however, that the Government dismissed the count alleging that he persuaded one of his victims to masturbate

on webcam and t h u s Taylor does not bear heavily on whether there was a sufficient factual basis for his plea to Counts Three and Four. In any event, any

error the district court may have committed was n o t plain as we have never

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addressed whether an alleged viola t i o n of § 14:81.3 of the Louisiana Revised Statutes constituted “sexual activity for which any person can be charged with a criminal offense” under § 2422(b). Puckett , 129 S. Ct. at 1429. In sum, the district court did not commit plain error in acc e p t i ng Broussard’s guilty plea to Counts Three and Four of the superseding indictment for attempting to persuade a minor to engage i n criminal sexual activity in violation of 18 U.S.C. § 2422(b) based on the facts in the record concerning his conduct toward TL and KH. Accordingly, we affirm his convictions, based on his plea of guilty, on both counts. III. A. Broussard also contests the procedural and substantive reasonableness of his sentence. I n r e vi e w i n g a challenge to a sentence, we first ensure that the district court committed no significant procedural e r r o r , and once satisfied in this accord, we analyze the sent e n c e f o r substantive reasonableness, applying an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). When, as here, the district court imposes a non-guidelines sentence, we “may consider the extent of the deviation [in our review], but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall , 552 U.S. at 51. In this reg a rd, “[a] non-[g]uideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Smith , 440 F.3d 704, 708 (5th Cir. 200 6).

19 Case: 11-30274 Document: 00511744809 Page: 19 Date Filed: 02/01/2012No. 11-30274 B. First, we observe that the district court correctly calculated Broussard’s guidelines range. It then began its reasoning by stating that it had considered all of the § 3553(a) factors befor e p r o c e e ding to analyze particular § 3553(a) factors to explain its chosen sentence. In cit i n g t h e nature and circumstances of the offense, and the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1), the court explained that it had only once sentenced a defendant more dangerous to children than Broussard. Next, the court noted that Broussard’s offenses “don’t get much more serious,” and that, when considering the need for the sentence to provide just punishment for the offense, it had recently punished

someone less culpable than Broussard, in its view, to fourteen-and-a-half years of incarceration. Id. § 3 553(a)(2)(A). Incarceration was warranted moreover, according to the district court , i n order to deter adequately those who would engage in similar criminal conduct with minors. Id. § 3553(a)(2)(B). After this point, the district court’ s reasoning strayed from the permissible toward the impermis s ible. With respect to the need to protect the public from future crimes of the defendant, id. § 3553(a)(2)(C), the cou r t stated that Broussard is a “scary individual when it comes to children.” The court recalled that history is full of individuals who start with mere fantasies that they later sought to fulfill, and in the court’s view, Broussard disregards what he knows to be the difference between right and wrong in order t o f u l f i ll the fantasies he detailed in the fifty-nine page journal. The court stated that Broussard “is sick in the head,” “needs help badly,” and “is in need of education pert a i ning to his probl e m s a n d h e needs medical care and treatment.” Then, the district court noted that, although the need to avoid unwarranted sentencing disparities among similarly-si t u a t ed defendants is a “compelling part of the sentencing process,” it is “not as compelling as the need to incarcerate this individual for the treatment that he needs.” The court then imposed a sentence of 240 months per

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count to run consecutively, for a total of 40 years of imprisonment, to be followed by lifetime supervised release. Although the shadows of the Supreme Court’s decision in Tapia v. United States , 131 S. Ct. 2382, 2391 (2011), were cast on the sentence after the district court entered judgment, th e district court’s reliance on Broussard’s need for treatment in determining the length of his sentence became impermissible. In Tapia , the Supreme Court held that, under 18 U.S. C

. § 3 5 8 2 (a), sentencing 8 courts are prohibited “from imposing or lengthening a prison term to promote an offender’ s r ehabilitation.” Id. There can be no dispute that the district court 9 explicitly considered, in both selecting and imposing a term of incarceration, the need to incarcerate Broussa r d f o r treatment to address his problems. We recognize that “[a] court co m m i t s n o error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” Id. at 2392. But here, the di s t ri c t c o u r t went further. It not only characteri z e d B r o ussard as “sick in the head” and badly in need of help, treatment, and edu c a t i on “pertaining to his problems,” but it specifically esche w e d , in determining the length of the sentence, the § 3553(a)(6) factor of

avoiding unwarranted sentencing disparities among similarly-situate d

U ndert hiss ect ion, t he se nten cing cour t 8

in d e t e r mi ning wh ethe r to im pos e a ter m of im priso nme nt, and, if a ter m of im priso nme nt is to be im pos ed, in det erm i n i n g the length of the ter m, sha ll cons i d e r t h e fac tor s se t forth in se cti on 3553( a) to the extent that they are app licable, rec ognizing that im priso nme nt is not an app rop riat e me ans of pr om oti ng c orr ect ion and rehabilit atio n. . . . 18 U .S .C. § 3582( a).
In res pons e to ques tio ning at oral ar gume nt about wh ethe r the dist ric t cour t did , in 9 fac t, com mi t a Tap ia violat ion wh en it cons ide red the need for Brous sar d to rehabilit ate and to obta in tre atm ent in det erm ining the length of h i s s e n tenc e, couns el for the Go vernm ent st ated that the dis tri ct cour t’s reas oning “co uld im pli c ate Tap ia .” It late r fil ed a Rule 28(j) let ter arguing that any suc h violat ion coul d not be plai n err or, a cont enti on wh ich, for reas ons dis cus se d here in, w e r eject

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individuals in f

avor of the more “compelling” need “to incarcerate [Broussard] for the treatment that h e needs.” The court’s reliance on Broussard’s need for treatment in determining the length of his sentence was error under Tapia

. Broussard, however, did not object t o his sentence on this ground before the district court, no r di d h e make the argument in his initial brief–understandabl y because Tapia was not decided until after he was

s e n tenced and after he filed his initial brief. In exceptional circumst a n c e s , especially criminal cases, we can, in our discretion, take sua sponte notice of

errors not presented in either the district court or the appellant’s initial brief. 1 0 We exercise this discretion with the greatest prudence, recognizing that it is only the extra o r dinary case which will excuse an appellant’s failure to make an argument in his initial brief. Like review of errors not preserved through an objec tion in the district court, we review an error neither argued in the district court nor presented on appeal for plain error. To demonstrate reversible plain error, Broussard must

As a genera l rule , we do not add res s argum ents an app ellant ’sop ening brie f fai led 1 0 to rais e. Uni ted States v. Bank , 624 F.3d 261, 264 (5t h Cir. 2010) (c itin g Cine l v. Conni ck , 15 F.3d133 8, 1345 (5t h Cir. 199 4) (“An ap pel lant aband ons al l i ss ues no t rais ed and arguedin its ini tial brie f on app eal. ”) ). Becaus e Tap ia wa s dec ide d aft er Brous sar d’s ope ning brie f wa s fil ed, and the rec ord in d i cat es that the dis tri ct cour t’s se nten cing det erm inati on reli ed signi fic antly on the need for Brous sar d to obtain tre atm ent–no doub t due in large par t to the
wr itin gs in his journa l–w e broa ched the pos sib ilit y of a Tap ia violat ion during oral argum ent. In this sp ecial cas e, fairne ss and the publ ic inte res t dic tat e thatwe sua sp onte tak e noti ce of the obvio us er rorcom mi tte d by the dis tri ct co urtin explici tly relyi ng on Brous sar d’s need to obta in tre atm ent and rehabilit atio n in just ifyin g i t s se nten ce of 40 years of incar cer atio n, wh ich rep res ente d a signi fic ant upw ard varianc e fr om the guide lines ra n g e . C f

. Sil ber v. Uni ted States , 370 U. S. 717, 718 (196 2) (r eco gnizing that , “ [ i] n excep tio nal cir cum st ance s, es pec ially in cri mi nal cas es , app ellat e cour ts , in the publ ic inte res t, may, of thei r ow n mo tio n, noti ce err ors to wh ich no excep tio n has been tak e n , i f t h e e r r ors are obvious , or if they othe rw ise se riou sly aff ect the fai rnes s, inte grity, or publ ic rep utat ion of judic ial pr oce edi ngs” (quo ting Uni ted States v. Atki nson , 297 U. S. 157, 160 (193 6)) ; Uni ted States v. Pine da- Or tuno , 952 F.2d 98, 105 (5t h Cir. 1992) (“Wher e plai n err or is app aren t, the issu e may be rais ed sua sp onte by this cour t even thou gh it is not ass igned or sp ecif ied .” ); Uni ted States v. Mo ntem ayo r , 70 3 F

. 2 d 1 0 9 , 114 n.7 (5t h Cir. 1983) (“An app ellat e cour t wi ll not cons ide r sua sp onte an argum ent not rais ed in the cour t be low or urged by the liti gants excep t to pr event a mi sc arriage of just ice. ”)

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show “(1) error (2) that is plain and (3) that affects his substantial rights.” United States v. Castillo-Estevez , 597 F.3d 238, 240 (5th C i r . 2 0 1 0 ). “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable dispute.’” Id. at 241 (quoting Pucket t v . United States , 129 S. Ct. 1423, 1429 (2009)). To affect the defenda n t ’ s substantial rights, the defendant must de m o n s trate that the error affected the outcome of the district court proceedings. Puckett , 129 S. Ct. at 1429; United States v. Dickson , 632 F.3d 186, 191 (5th Cir. 2011) (stating that, in the sentencing context, the defendant must demonstrate

a “reasonable probability” that, but for the district court’s error, he would have received a lesser sentence); Un i t e d States v. Williams , 620 F.3d 483, 496 (5th Cir. 2010) (same). Finally, “[w]e will exercise our discretion to correct plain error if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” United States v. Murray , 648 F.3d 251, 253 (5th Cir. 201 1). As detailed above, the distric t court committed error in relying on Broussard’s rehabilitative needs when it determined the length of his sentence. We now must determine if the district court’s error was clear or plain, an inquiry complicated by the fact that the Supreme Court decided Tapia after Broussard had been sentenced. At the time of his sentencing, this court had never squarely addressed whether it was permissible for a sentencing court to consider a defenda nt ’ s rehabilitative needs in lengthening a sentence. United States v. Henderson , 646 F.3d 223, 225 & n.4 (5th Cir. 2011). Now, however, the Supreme Court has expressly resolved the issue, holding that such considerations are impermissible. Thus, we must decide whether to judge the district court’s error at the time of Broussard’s sentencing or at the time of appeal. The Supreme Court has held that “ where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that

an error be ‘plain’ at the time of appellate consid e r a t i on.” Johnson v. United States , 520 U. S

. 4 6 1 , 4 68 (1997). The Supreme Court has never, however,

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addressed whether plain error would be established “where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Olano , 507 U.S. at 734. A recent panel decision of this court would have us consider the plainness of the error as the law stood at the time of Broussard’s sentencing. Henderson , 646 F.3d at 225. That decision, however, does not account for the fact that the determination o f wh e n to judge the obviousness of an error has produced not only an in t er-circuit split, but also an intra-circuit split on the question. 1 1 1 2

Com pa re Uni te d States v. Go nza lez-Ap ar ic io , 663 F.3d 419, 428 (9t h Cir. 2011) 1 1 (“When the st ate of the law is unclear at the time of tri al and is then clar ifi ed by sub se quent autho rity, the dis tri ct court’s err or is st ill not cons ide red plai n. . . . Th e r e f o r e , p lain err or ‘nor mal ly me ans err or plai n at the tim e the dis tri ct cour t mad e the allege d mi st ak e.’ ”) ; Uni ted States v . Mo uli ng, 557 F.3d658, 664 (D .C. Cir.) ( “Wet here for e h oldt hat wh ere , as here, the laww as unse ttl ed at the tim e o f tri al but bec om es set tle d by t he tim e o f app eal, t he genera l rule app lies , and we ass es s err or as of the tim e of tri al. ”) , cer t. deni ed , – U. S. – , 130 S. Ct. 795 (200 9), wi th Uni ted States v. Crosgrov e , 637 F.3d 646, 656–57 (6t h Cir. 2011) ( “H ow ever, the requ irem ent that the err or be plai n me ans ‘pl ain unde r cur rent law .’

. . . For p l a i n err or revie w, cur rent law ‘is the law as it exis ts at the tim e of revie w. ’”) ; Uni ted States v. Ga mez , 577 F.3d 394, 400 (2d Cir. 2009) (p er curiam) (“A cour t of app eals canno t cor rec t an err or pur sua nt to Rule 52(b ) unles s the err or is clea r unde r cur rent law

. . . . Whet her an err or is ‘pl ain’ is det erm ined by ref

ere nce t o the law as of the tim e of app eal. ” (int erna l quot atio n mar ks and cit atio ns om itt ed) ); Uni ted States v. Zis kind , 491 F.3d 10, 14 (1s t Cir. 2007) (c itin g Johns on for the pr opo sit ion “th at err or is plai n if the law is clea r at the tim e of dir ect app ellat e revie w, even thou gh go v e r n i n g law wa s uncle ar at tim e of tri al”) ; Uni ted States v. Unde rw ood , 446 F.3d 1340, 1343 (11t h Cir. 2006) (no ting that “even thou gh the err or wa s not plai n at the tim e of se nten cing, the sub se quent iss uance of [a Sup rem e Court opi nion] es tabl ish es that the err or is plai n att he tim e o f app ellat e c ons ide rat ion” ).

Sever al opi nions have held that we cons ide r the law at the tim e of tri al to dec ide the 1 2 obvious nes s of the err or. See, e. g. , He nderson , 646 F.3dat225 ( “[A]n err or is plai n o nly i f it
wa s clea r unde r cur rent law at the tim e of tri al. ” (int erna l quot atio n marks om itt ed) ); Uni ted S ta te s v . Jac kson , 549 F.3d 963, 977 (5t h Cir. 2008) (“ ‘Plain ’ is syno nymo us wi th ‘cl ear ’ o r ‘obvio us, ’ and at a mi nim um, cont em plat es an err or wh ich wa s clea r unde r cur rent law at the tim e of tri al. ” (quo ting Uni ted States v. Ga rci a- Rodr iguez , 415 F.3d 452, 455 (5t h Cir. 2005) ); Uni ted States v. Hu ll , 160 F.3d 265, 272 (5t h Cir. 1998 ) ( s ame). On the othe r hand, cer tain “op inions have conc lude d that Johns on es tabl ish ed that the cour t cons ide rs the err or at the tim e of app eal in dec idi ng wh ethe r it is plai n.” He nderson , 2011 WL 6223057 , at *4 (H aynes , J., dis se nting fr om deni al of pet itio n for reh’ g en banc) (c itin g Uni ted States v. Bis hop , 603 F.3d 279, 281 (5th Cir. ) (“We det erm ine w heth er an allege d err or is plai n by ref ere nce to exis ting law at the tim e o f a p p eal. ”) , cer t. deni ed , – U. S. – , 131 S. Ct. 272 (201 0); Uni ted States v. Go nza le s- Ter razas , 529 F.3d 293, 298 (5t h Cir. 2008) (“ [T] he err or need only be pl a i n at the 24 Case: 11-30274 Document: 00511744809 Page: 24 Date Filed: 02/01/2012No. 11-30274

United States v. H

e n de rs o n , – F.3d – , 2011 WL 6223057, at *3 (5th Cir. 2011) (Haynes, J., dissenting from denial of petition for reh’g e n b anc). As Judge Haynes’s dissent notes, our earliest discussion of this issue, applying the Olano construction of plain error, resolved that we judge the plainness of the error at the time of appeal. United States v. Knowles , 29 F

. 3 d 9 4 7 , 951 ( 5th Cir. 1994) (“It is of no consequence that Lopez was decided after the proceedi n g s i n the district court concluded. Since this case i s o n di rect appeal, newly announced rules apply.” (citing Griffith v. Kentucky , 479 U.S. 314, 328 (1987)). In this case,

we will follow our general rule t h a t wh e r e “two previous holdings or lines of precedent conflict, the earlier opi nion controls and is the binding precedent in this circuit.” United States v . W h eeler , 322 F.3d 823, 828 n.1 (5th Cir. 2003) (internal quotation marks omitted). Accordingly, Broussard should receive the benefit of the Supreme Court’s n e w ly announced prohibition on a sentencing court’s consideration of t h e n eed for the defendant to receive treatment or rehabilitation when it determines the length of his sentence. We believe this

res u lt also embraces the spirit of the Supreme Court’s holding in Griffith v. Kentucky , 479 U.S. 314, 328 (1987), that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct review. The district court’s error in this case, therefore, was clear or obvious under the law as it exists currently at the time of appellate review. Thus, the second prong of plain error review is satisfied. T urning to the third prong, it is evident that the district court’s erro r affected Broussard’s substantial rights because the court’s reliance on Broussard’s need f

or tre at m e nt skewed the sentencing determination. We do not dispute that the district court considered other permissible factors in explaining its chosen se n t e n c e f

o r Broussard; however, it is also quite apparent from the

tim e o f app ellat e c ons ide rat ion. ”) ).

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transcript of the sentencing that the district court imposed a sentence–a three hundred percent increase over the guidelines range–based on the court’s belief that Broussard was “ s i c k in the head” and in need of treatment. In fact, the court explicitly found that his need for treatment was more compelling than the need to avoid unwarranted sentencing disparities between Broussard and other similarly-situated defendants c o nvi c ted of violating 18 U.S.C. § 2422(b). The

s e nt e ncin g tr an s cript clearly indicates that the court’s error affected Broussar d’ s substan ti al rights. Finally, our failure to address the district court’s obvious
error, which would allow such a lengthy, unlawful sentence to s t a n d , would seriously affect the fairness, integrity, and public reputation of judicial proceedings. Accordingly, because the district court committed plain error i n determining the length o f Broussard’s sentence based on his need to obtain treatment and rehabili t a t i on, we vacate his sentence and remand for resentencing. Because we vacate and remand on this basis, we express no view

on Broussard’s remaining challenges to the distri c t c o u rt’s sentence, or his objection to the district court’s consideration of the Government’s late-sub mitted sentencing memorandum. 1 3

Finally, we tak e the opp ort unity to urge the full cour t to cons ide r the tim ing ques tio n 1 3 pr es ente d by the cir cum st ance s in this cas e: wh ethe r we judge the obvious nes s of err or at the tim e o f the dis tri ct cour t pr oce edi ng oratt he tim e of app ellat e review . G iven the fr equenc y of pl a i n err or revie w, es pec ially in se nten cing cas es wh ere inte rvenin g dec isi ons clar ify or so lidify law that wa s uncle ar at the tim e of the dis tri ct cour t pr oce edi ng, but clea r by the tim e of app ellat e revie w, it is an iss ue wo rth y of the full cour t’s att enti on, as highlight ed mo st rec entl y by Judge Haynes . He nderson , 2011 WL 6223057 , at *4- 5 (H aynes , J., dis se nting fr om deni al of pet itio n f

or reh’ g en banc)

. 26 Case: 11-30274 Document: 00511744809 Page: 26 Date Filed: 02/01/2012No. 11-30274 IV. In sum, w e h o ld that the district court did not plainly err in accepting Broussard’s plea of guilty to the attempted violation of 18 U.S.C. § 2422(b) based on the factual record with respect to victims TL and KH. After a review of the record, we cannot find that any error the district committed would be considered plain because whether Broussard’s actions amounted to a substantial step toward persuading the minor victims to engage in crimin a l sexual activity is subject to reasonable dispute under the caselaw. As a c o nsequence, his convictions are AFFIRMED. We VACATE Broussard’s sentence and REMAND for resentencing because the district court plainly erred in relying on the need for Broussard to obtain rehabilitation and treatment in choosing the length of his sentence. AFFIRMED IN PART, VACATED AND REMANDED IN PART.

27 Case: 11-30274 Document: 00511744809 Page: 27 Date Filed: 02/01/2012