United States v. Broussard, No. 11–30274.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtE. GRADY JOLLY
Citation669 F.3d 537
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Daniel James BROUSSARD, Defendant–Appellant.
Docket NumberNo. 11–30274.
Decision Date01 February 2012

669 F.3d 537

UNITED STATES of America, Plaintiff–Appellee,
v.
Daniel James BROUSSARD, Defendant–Appellant.

No. 11–30274.

United States Court of Appeals, Fifth Circuit.

Feb. 1, 2012.


[669 F.3d 540]

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for Plaintiff–Appellee.

Robert Russell Nigh, Jr. (argued), Brewster & De Angelis, P.L.L.C., Tulsa, OK, Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for 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 and by 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 months (40 years). The sentence is a significant upward variance from Broussard's calculated guideline range of 120 months (10 years) of incarceration. Broussard is not happy with his plea of guilty nor his sentence. On appeal, he

[669 F.3d 541]

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 plans 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 late-submitted sentencing memorandum. We hold that Broussard fails to demonstrate that the district court committed plain error in finding a sufficient factual basis for his plea. Although we 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 criminal complaint, on June 11, 2010, Lafayette Police Department (“LPD”) Officers Thibodeaux and Royer were dispatched to an address in Lafayette, Louisiana regarding a complaint of indecent behavior with a minor female. Upon arrival, the officers met with the complainant, the mother of the minor female victim later identified in court documents as “KP.” KP's mother informed the officers that KP had been communicating with a man, “Robbie Wade,” over the internet and cellphone. Broussard would later stipulate to using the name “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 show various parts of her body and masturbate in front of a webcam.1 Broussard would later stipulate that he had threatened to show naked pictures of KP to her friends 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, which 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 learned that Broussard was a twenty-one-year-old student at the University of Louisiana–Lafayette, scheduled 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 informed the officers that Broussard had been living in Tulsa, Oklahoma for the past few months with his aunt and uncle while he recovered from a severe leg fracture. During the search, officers recovered a fifty-nine page journal locked in a briefcase that later would be attributed to Broussard.

LPD officers contacted the Tulsa Police Department, which obtained a state search warrant based on the LPD's information for the aunt and uncle's residence in Tulsa. Officers executed it, arrested Broussard, and seized his laptop computer. Broussard waived his Miranda rights and

[669 F.3d 542]

agreed to answer questions. In a written 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 eighteen. He estimated that the last time he had engaged in sexually explicit webcam activity with someone under the age of eighteen had been a week and a half prior to his arrest. That activity had included “watching a girl on the webcam, having her disrobe.” A few days before that, he told investigators that he had watched a thirteen– or fourteen-year-old girl masturbate. When asked by investigators 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 estimated that those experiences represented only approximately thirty-five minors between thirteen and eighteen years old.

On July 13, 2010, Broussard was indicted on one count of production of child pornography and one count of using a facility of interstate commerce to attempt to coerce a minor to engage in criminal sexual acts.2 He pleaded not guilty to the charges at his arraignment. A subsequent forensic download of Broussard's cellphone information by federal agents, however, revealed that he also had been communicating with at least three other minor females in a sexually 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 acknowledged that 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, after which they provided him with their respective cellphone numbers.

On August 10, 2010, a superseding indictment was filed against Broussard. Count One charged him with production of child pornography, in violation 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 criminal sexual acts, in violation of 18 U.S.C. § 2422(b).3 Counts One and Two referenced Broussard's conduct 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 Government 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

[669 F.3d 543]

her to masturbate over the webcam. Broussard further stipulated that, during June, he began communicating via text message 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 court accepted his plea. Under the plea agreement's terms, the remaining counts were dismissed after Broussard's sentencing.

In preparing Broussard's pre-sentence report (“PSR”), the probation officer calculated a combined 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 sentence under 18 U.S.C. § 2422(b), however, is 120 months (10 years), and the maximum is life imprisonment. Because the 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 PSR noted that there were “no known or mitigating or aggravating circumstances” that would warrant a departure from the guideline sentence, or any “factors that would support a sentence outside of the guideline system.” Neither party objected to the PSR.

Three calendar 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 months was warranted. More specifically, the Government advocated that a sentence of 360 months (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 described himself as a “pedophile,” and wrote detailed,...

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281 practice notes
  • United States v. Alvarado-Casas, No. 12-40295
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Mayo 2013
    ...2010), or, put differently, if the district court's factual basis finding is "subject to reasonable dispute," United States v. Broussard, 669 F.3d 537, 550-51 (5th Cir. 2012), a district court's error in accepting the guilty plea is not plain. We perceive no plain error in the district cour......
  • United States v. Nepal, No. 17-10228
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 27 Junio 2018
    ...as a matter of law to sustain his plea (as Nepal does here)—our review is restricted to plain error. United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012) ; see also Fed. R. Crim. P. 52(b).4 Success on plain error review requires a showing by the defendant that a clear and obvious ......
  • United States v. Escalante–Reyes, No. 11–40632.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 Julio 2012
    ...squarely, though perhaps not perfectly. Recognizing the intra- and inter-circuit split on this question, see United States v. Broussard, 669 F.3d 537, 554 (5th Cir.2012), petition for reh'g filed, we determined to hear this case2 en banc in the first instance to resolve the issue. We turn, ......
  • United States v. Alvarado-Casas, No. 12–40295.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Mayo 2013
    ...or, put differently, if the district court's factual basis finding is “subject to reasonable dispute,” United States v. Broussard, 669 F.3d 537, 550–51 (5th Cir.2012), a district court's error in accepting the guilty plea is not plain. We perceive no plain error in the district court's acce......
  • Request a trial to view additional results
281 cases
  • United States v. Alvarado-Casas, No. 12-40295
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Mayo 2013
    ...2010), or, put differently, if the district court's factual basis finding is "subject to reasonable dispute," United States v. Broussard, 669 F.3d 537, 550-51 (5th Cir. 2012), a district court's error in accepting the guilty plea is not plain. We perceive no plain error in the district cour......
  • United States v. Nepal, No. 17-10228
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 27 Junio 2018
    ...as a matter of law to sustain his plea (as Nepal does here)—our review is restricted to plain error. United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012) ; see also Fed. R. Crim. P. 52(b).4 Success on plain error review requires a showing by the defendant that a clear and obvious ......
  • United States v. Escalante–Reyes, No. 11–40632.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 Julio 2012
    ...squarely, though perhaps not perfectly. Recognizing the intra- and inter-circuit split on this question, see United States v. Broussard, 669 F.3d 537, 554 (5th Cir.2012), petition for reh'g filed, we determined to hear this case2 en banc in the first instance to resolve the issue. We turn, ......
  • United States v. Alvarado-Casas, No. 12–40295.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Mayo 2013
    ...or, put differently, if the district court's factual basis finding is “subject to reasonable dispute,” United States v. Broussard, 669 F.3d 537, 550–51 (5th Cir.2012), a district court's error in accepting the guilty plea is not plain. We perceive no plain error in the district court's acce......
  • Request a trial to view additional results

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