United States v. Jeffrey Howard, 766 F.3d 414

Defendant Jeffrey Howard engaged in a three-week online sting with a Corpus Christi detective posing as a mother of two minor girls and exchanged explicit messages and photos requesting they be shown to the girls.
Howard described specific sexual acts he intended to perform, asked the mother to procure birth control, and urged her to perform sexual acts on the girls to “get them ready.”
He discussed travel logistics (airports, hotels, airlines) and said he would “definitely travel to Corpus Christi,” but made no flight, hotel, or car reservations and later told the undercover officer he would “leave it” when pressed to book travel.
The district court convicted Howard after a bench trial of attempted persuasion/enticing of a minor under 18 U.S.C. § 2422(b) and sentenced him to the 10‑year mandatory minimum.
On appeal Howard challenged (1) sufficiency of evidence—whether his conduct was a “substantial step” (attempt vs. mere preparation)—and (2) constitutionality of § 2422(b) as vague and overbroad.

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Howard)	Held
Whether defendant took a “substantial step” under the MPC test to attempt persuading a minor in violation of § 2422(b)	Howard’s explicit sexual communications, grooming requests (birth control, sex acts), and travel discussions together corroborate intent and, when viewed as a whole, constitute a substantial step.	His conduct was mere preparation: no definite meeting/time, no travel or ticket/hotel purchases, and he ultimately declined to book travel when asked.	Affirmed: grooming + explicit instructions to prepare the girls plus specific travel discussions were sufficient for a rational factfinder to find a substantial step; travel or firm travel plans are not strictly required.
Whether § 2422(b) is unconstitutionally vague or overbroad (First Amendment)	The statute targets knowing attempts to persuade minors into illegal sex and contains a scienter requirement; preventing child sexual exploitation is a compelling interest and § 2422(b) is neither vague nor overbroad.	The term “attempt” is vague and the statute criminalizes protected speech (chilling effect).	Rejected: court found no plain error on vagueness and rejected the overbreadth challenge—attempt/intent elements and precedent sufficiently constrain the statute and the conduct here is unprotected (attempt to arrange child sexual abuse).

United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (upheld conviction where prolonged grooming and other acts—including sending explicit photos and promises—supported attempt without firm travel plans)
United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (reversed where record showed explicit sexual talk but no arrangements or other substantial steps to meet)
United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) (§ 2422(b) punishes attempts to persuade; Fifth Circuit had not previously defined whether non‑travel grooming and conversations alone suffice)
United States v. Barlow, 568 F.3d 215 (5th Cir. 2009) (affirmed where defendant traveled to meeting place—travel is a clear substantial step)
United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007) (upheld conviction where grooming plus proposals to meet constituted a substantial step)
United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (affirmed where defendant urged a minor to call and arrange a meeting—arranging to meet supports attempt)
United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (rejected vagueness challenge to § 2422(b); terms like “persuade” have ordinary meaning and scienter limits enforcement)
New York v. Ferber, 458 U.S. 747 (1982) (Supreme Court: preventing sexual exploitation of children is a government objective of surpassing importance; supports narrow First Amendment analysis in child‑protection contexts)