United States v. Broussard, 2012 U.S. App. LEXIS 1876

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 (Counts Three and Four).
He admitted sexually explicit conversations with minors and discussions of meeting them for sex; a journal and other materials were produced by the government as context.
District court sentenced him to 240 months per count consecutive (total 40 years), above the calculated guideline range due to an upward variance.
PSR calculated guideline range 87–108 months, but mandatory minimums set 120 months as the guideline sentence.
Government filed a late sentencing memorandum arguing for a substantial upward variance; Broussard objected to its lateness.
On appeal, Broussard contends the factual basis for his plea is insufficient, challenges the sentence’s procedural/substantive reasonableness, and argues the district court erred in considering rehabilitation needs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the factual basis for the plea	Broussard contends the plea lacks a substantial step toward meeting a minor for sex.	Government failed to prove substantial step beyond fantasy discussions.	No plain error; factual basis sufficient for plea.
Upward variance based on late sentencing memorandum	Late government memo improperly influenced sentence; Broussard objected to its consideration.	Court could consider both late memo and reply; no prejudice shown.	No reversible error; sentence vacated only on Tapia-reliance issue, not the memo.
Rehabilitation/treatment as basis for length of sentence	Court may consider rehabilitation needs as permissible factor.	Tapia prohibits lengthening a sentence to promote rehabilitation.	Plain error; district court erred by relying on treatment needs to determine length; remanded for resentencing.

United States v. Barlow, 568 F.3d 215 (5th Cir.2009) (conviction for attempting to persuade a minor need not prove actual contact)
United States v. Farner, 251 F.3d 510 (5th Cir.2001) (substantial step toward persuading a minor can be non-physical)
Puckett v. United States, 552 U.S. 129 (U.S. 2007) (plain-error standard and retroactivity on appeal)
Johnson v. United States, 520 U.S. 461 (U.S. 1997) (plain-error review when law clear at appellate review)
Griffith v. Kentucky, 479 U.S. 314 (U.S. 1987) (new rules apply retroactively to direct review)
Tapia v. United States, 131 S. Ct. 2382 (U.S. 2011) (courts cannot lengthen prison term to promote rehabilitation)