explaining that “where ‘two previous holdings or lines of precedent conflict, the earlier opinion controls and is the binding precedent in this circuit.’” (quoting United States v. Wheeler, 322 F.3d 823 , 828 n.1 (5th Cir. 2003))
How later courts described this case
- explaining that “where ‘two previous holdings or lines of precedent conflict, the earlier opinion controls and is the binding precedent in this circuit.’” (quoting United States v. Wheeler, 322 F.3d 823 , 828 n.1 (5th Cir. 2003))
- finding Tapia error where the district court described the defendant as “need[ing] help badly” and “sick in the head,” and it emphasized “the need to incarcerate [the defendant] for the treatment that he needs”
- noting that “the prohibited act of persuasion can occur over a distance, as the statute expressly contemplates, and logic would appear to dictate that having discussions with [minors] about meeting to have sex is a substantial step toward persuading them to have sex”
- noting that appellate courts may take judicial notice of errors which are obvious or seriously affect the fairness and integrity of judicial proceedings
Written by the judges who cited it.
The opinion
Case: 11-30274 Document: 00511744809 Page: 1 Date Filed: 02/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 1, 2012
No. 11-30274 Lyle W. Cayce
Clerk
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 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
Case: 11-30274 Document: 00511744809 Page: 2 Date Filed: 02/01/2012
No. 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 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
1
A webcam is a video camera that feeds real-time images over the internet.
2
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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 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
3
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No. 11-30274
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
2
On July 1, 2010, a criminal complaint was filed against Broussard charging him with
production of child pornography, using a facility of interstate commerce to attempt to coerce
a minor to engage in criminal sexual acts, and possession of child pornography.
4
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No. 11-30274
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 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
3
Louisiana law 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 seventeen] 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. REV. STAT. ANN.
§ 14:81.3(A)(1).
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No. 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 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, 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
sexual activities and the writings in the journal4 about engaging in sex with
young girls, regardless of their accuracy, the Government contended that it is
“clear [ ] that [Broussard] is excited by engaging in sex acts with young
children.”
Turning to the 18 U.S.C. § 3553(a) factors, the Government next argued
that Broussard’s conduct was more egregious than the “typical” offender
prosecuted under 18 U.S.C. § 2422(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
4
No one disputes that the stories written in the journal did not actually take place.
6
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No. 11-30274
cause several minor females to engage in criminal sexual activities, sent sexually
explicit images of himself to minors, and sought sexually explicit images of
minors in return, the Government maintained that he deserved a sentence above
the mandatory minimum. Furthermore, citing a statement of a psychologist who
treats sex offenders, the Government contended that 360 months of
imprisonment was justified by the need to deter other offenders seeking to
exploit minors in a manner similar to Broussard. Additionally, 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 before the hearing, arguing,
inter alia, that the district court should disregard the Government’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.
Broussard’s sentencing occurred as scheduled. Indeed, neither party
voiced any objection when asked by the court if a continuance was needed
because of the Government’s late submission. The court agreed that the
Government’s memorandum had been submitted “very late,” but declined
Broussard’s suggestion to disregard it entirely; instead, the court announced it
would consider both the Government’s memorandum and Broussard’s reply. The
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 plea agreement and during the
plea colloquy. Broussard again affirmed that he had sexually explicit
conversations or chats with approximately thirty-five different minors.
Broussard also confirmed he had told some of the minor females that he wanted
7
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No. 11-30274
to meet to have sex with them. Broussard stated, however, that he had never
had 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 sentencing colloquy
below:
The advisory applications of the guidelines are as follows: The
defendant’s offense level is 29. The defendant’s criminal history is
Category I. The advisory guideline range is 87 to 108 months of
imprisonment per count with a statutory provision 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 is not applicable.
And a special assessment of $100 per count pursuant to 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 one, the nature and circumstances of the offense and the
history and characteristics of the defendant. There has only been
one other defendant I’ve had before me that I considered more
dangerous 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 understand 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 the
seriousness of the offense. They don’t get much more serious.
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No. 11-30274
To promote respect for the law and to provide just punishment for
the offense. When we talk about just punishment and we look at
the other sentences that this Court has ordered over the years, I
have in fact recently imposed a sentence of about 14 and a half
years 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, you
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 in the head. He needs help badly. He knows the
difference between right and wrong, there is no doubt about that,
but he doesn’t seem to care when it comes to fulfilling his fantasy.
And the fantasy started off with the probability that all of these
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 term very loosely. This
individual – I shouldn’t say gentleman – is in need of education
pertaining to his problems 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 compelling part of the sentencing process, but not as compelling
as the need to incarcerate this individual for the treatment that he
needs.
The 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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The Court 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, once his
released, will be on life supervised release.
Broussard did not object to his sentence, on either procedural or
substantive 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.
On appeal, Broussard challenges the factual basis supporting his
convictions for using a facility of interstate commerce to attempt to coerce a
minor to engage in criminal 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 presents 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
10
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No. 11-30274
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 judicial proceedings.’” United States v.
Thompson, 454 F.3d 459, 464 (5th Cir. 2006) (quoting United States v. Alvarado-
Santilano, 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 the 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 judgment thereon, a trial court is
required to determine that there is a factual basis for the plea. FED. R. CRIM. P.
11(b)(3). The intention of Rule 11(b)(3) is to protect a defendant who voluntarily
pleads guilty with an 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 the court to determine whether the defendant’s conduct is
within the ‘ambit of the statute’s prohibitions.’” Id. (quoting United States 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 court’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 beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
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supporting his conviction,” and draw any fair inferences from the evidence.
United States v. Trejo, 610 F.3d 308, 313, 317 (5th Cir. 2010).
Broussard pleaded 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 offense implicated by Broussard’s conduct is defined by
§ 14:81.3 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
seventeen] 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. REV.
STAT. ANN. § 14:81.3. Broussard stipulated to violating § 14:81.3(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 doubt that the defendant “(1) acted with the culpability required
to commit the underlying substantive offense, and (2) took a substantial step
toward its commission.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir.
2009). Thus, the Government 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.”5 Id. A “substantial step” is defined as “conduct
which strongly corroborates the firmness of defendant’s criminal attempt.”
5
Broussard does not challenge that the other elements of the offense are established,
i.e., that the victims were under the age of eighteen, and that he used a means of interstate
commerce in violating the statute.
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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. 1974)).
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 support his argument. In Farner, we affirmed the
§ 2422(b) conviction of the defendant, who, over a four-month period, engaged
in sexually explicit conversations via instant messaging, e-mail, and the
telephone with what he believed to be a fourteen-year-old girl (in reality, an
undercover FBI agent), and attempted to persuade her to have sexual relations
with him. Id. at 511. Farner and the “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 local 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 TL and KH were living in
Lafayette, Louisiana during the time of the offense conduct, and there was no
indication that he took a substantial step toward arranging a meeting 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
13
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No. 11-30274
step toward sexual contact was necessary to sustain a § 2422(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, but that 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 implicitly ruled that a substantial step toward
persuading a minor to engage in illegal 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 had carried on
correspondence via instant messaging and e-mail with what he believed to be a
fourteen-year-old girl (in reality, an adult female who freelanced for law
enforcement to attract potential sex offenders), which had included engaging in
explicit conversations, sending explicit photos of himself, and requesting explicit
photos of the girl in return. Id. at 217-18. Eventually, they agreed to meet at
a state park in Mississippi, and during the visit 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 designated time, 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 to demonstrate that he took a
6
See, e.g., United States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010) (“With regard to
conduct, the government must prove that the defendant took a substantial step toward causing
assent, not toward causing actual sexual contact.”); United States v. Pierson, 544 F.3d 933, 939
(8th Cir. 2008) (“The government need not prove that the defendant intended to participate
in a physical sexual act. It is sufficient for the government to prove that the defendant
intended to persuade or entice a minor to engage in illegal sexual activity.”); United States v.
Dwinnells, 508 F.3d 63, 70 (1st Cir. 2007) (rejecting language in Farner as dicta).
14
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No. 11-30274
substantial step toward persuading a minor to engage in sexual activity because
he left the park before the girl arrived. Id. We disagreed, citing the nearly
eleven months spent before 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 to assent to sexual contact can occur solely
through communications with the minor.
Thus, our inquiry focuses on whether 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 victims, 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 victim 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
have met the minor victims for sex at the time of the offense conduct, the
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 rendezvous with the two victims,
and his conversations discussing a future meeting to engage in sex thus
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No. 11-30274
amounted to a substantial step toward enticing the minor victims to engage in
criminal sexual activity.7
A review of the facts in this case provides very few details about
Broussard’s conduct toward TL and KH. The superseding indictment, which
“can be used as the sole source of the factual basis for a guilty plea,” simply
tracks the language of 18 U.S.C. § 2422(b) and thus is not “sufficiently specific.”
United States v. Garcia-Paulin, 627 F.3d 127, 133-34 (5th Cir. 2010) (internal
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 [ ] 13 year old minor[s] from the Lafayette, Louisiana
area, initials [TL and KH]” and that “[d]uring those conversations the defendant
discussed meeting with the minor female[s] to engage in sexual activities.”
During his plea colloquy, Broussard affirmed that the factual basis was correct,
and that he had conversations with KH and TL during which he discussed
meeting to engage in sexual activities, but there were no additional facts
concerning TL and KH uncovered during the plea hearing.
Nor does the PSR illumine Broussard’s interactions with KH and TL,
stating only:
A subsequent forensic download of Broussard’s cell phone
information by federal agents revealed that Broussard had been
communicating with at least three (3) additional minor females.
Interviews 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
7
The Government puts forth as evidence of Broussard’s substantial steps toward
criminal sexual activity his conduct with KP, the victim identified in Counts One and Two of
the superseding indictment. Those counts, however, were dismissed under the terms of the
plea agreement, and Broussard never admitted to engaging in similar conduct with TL and
KH. Notwithstanding the Government’s protestations, we will not consider Broussard’s
conduct with KP to determine if there is a sufficient factual basis to sustain his conviction for
violating § 2422(b) with respect to his conduct toward TL and KH.
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No. 11-30274
advised that Broussard was aware that they were minors during the
course of their conversations. All three minor females reported
meeting Broussard on Face[b]ook and eventually 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 court 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
their cellphone numbers; he then began conversing with each of them via text
message; and during those conversations, Broussard discussed meeting with
each minor female to engage in sexual activities. No one disputes that
Broussard never traveled or made definitive plans to travel to meet TL and KH,
but as noted 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 States v. Goetzke, 494 F.3d
1231, 1236 (9th Cir. 2007) (attempting to 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
necessary to sustain such a conviction.”); United States v. Thomas, 410 F.3d
1235, 1246 (10th Cir. 2005) (“Thomas crossed the line from ‘harmless banter’ to
inducement the moment he began 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
expressly contemplates, and logic would appear to dictate that having
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No. 11-30274
discussions with TL and KH about meeting to have sex is a substantial step
toward persuading them to have sex. See, e.g., United States v. Rothenberg, 610
F.3d 621, 627 (11th Cir. 2010) (“[T]he very nature of the underlying
offense–persuading, inducing or enticing engagement in unlawful sexual
activity–necessarily contemplates oral or written 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
whether obtaining a phone number and having conversations with a minor
about meeting for illicit sexual activity constitutes a substantial step toward
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 established by the evidence
could not be plain. Considering the caselaw, and 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 (2009).
Broussard also argues that an alleged violation of § 14:81.3 of the
Louisiana Revised Statutes does 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 thus 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 not plain as we have never
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No. 11-30274
addressed whether an alleged violation 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 accepting
Broussard’s guilty plea to Counts Three and Four of the superseding indictment
for attempting to persuade a minor to engage in 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. In reviewing a challenge to a sentence, we first ensure that the
district court committed no significant procedural error, and once satisfied in
this accord, we analyze the sentence for 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 regard, “[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. 2006).
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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 before proceeding to analyze particular § 3553(a)
factors to explain its chosen sentence. In citing the 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. § 3553(a)(2)(A). Incarceration was warranted moreover,
according to the district court, in 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 impermissible. With respect to the need to protect the public from
future crimes of the defendant, id. § 3553(a)(2)(C), the court 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 to fulfill 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 pertaining to his
problems and he needs medical care and treatment.” Then, the district court
noted that, although the need to avoid unwarranted sentencing disparities
among similarly-situated 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, the 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. § 3582(a),8 sentencing
courts are prohibited “from imposing or lengthening a prison term to promote an
offender’s rehabilitation.” Id. There can be no dispute9 that the district court
explicitly considered, in both selecting and imposing a term of incarceration, the
need to incarcerate Broussard for treatment to address his problems. We
recognize that “[a] court commits no error by discussing the opportunities for
rehabilitation within prison or the benefits of specific treatment or training
programs.” Id. at 2392. But here, the district court went further. It not only
characterized Broussard as “sick in the head” and badly in need of help,
treatment, and education “pertaining to his problems,” but it specifically
eschewed, in determining the length of the sentence, the § 3553(a)(6) factor of
avoiding unwarranted sentencing disparities among similarly-situated
8
Under this section, the sentencing court
in determining whether to impose a term of imprisonment, and, if a term of
imprisonment is to be imposed, in determining the length of the term, shall
consider the factors set forth in section 3553(a) to the extent that they are
applicable, recognizing that imprisonment is not an appropriate means of
promoting correction and rehabilitation. . . .
18 U.S.C. § 3582(a).
9
In response to questioning at oral argument about whether the district court did, in
fact, commit a Tapia violation when it considered the need for Broussard to rehabilitate and
to obtain treatment in determining the length of his sentence, counsel for the Government
stated that the district court’s reasoning “could implicate Tapia.” It later filed a Rule 28(j)
letter arguing that any such violation could not be plain error, a contention which, for reasons
discussed herein, we reject.
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individuals in favor of the more “compelling” need “to incarcerate [Broussard] for
the treatment that he 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 to his sentence on this ground before
the district court, nor did he make the argument in his initial
brief–understandably because Tapia was not decided until after he was
sentenced and after he filed his initial brief. In exceptional circumstances,
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.10
We exercise this discretion with the greatest prudence, recognizing that it is only
the extraordinary case which will excuse an appellant’s failure to make an
argument in his initial brief.
Like review of errors not preserved through an objection 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
10
As a general rule, we do not address arguments an appellant’s opening brief failed
to raise. United States v. Bank, 624 F.3d 261, 264 (5th Cir. 2010) (citing Cinel v. Connick, 15
F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued in
its initial brief on appeal.”)). Because Tapia was decided after Broussard’s opening brief was
filed, and the record indicates that the district court’s sentencing determination relied
significantly on the need for Broussard to obtain treatment–no doubt due in large part to the
writings in his journal–we broached the possibility of a Tapia violation during oral argument.
In this special case, fairness and the public interest dictate that we sua sponte take notice of
the obvious error committed by the district court in explicitly relying on Broussard’s need to
obtain treatment and rehabilitation in justifying its sentence of 40 years of incarceration,
which represented a significant upward variance from the guidelines range. Cf. Silber v.
United States, 370 U.S. 717, 718 (1962) (recognizing that, “[i]n exceptional circumstances,
especially in criminal cases, appellate courts, in the public interest, may, of their own motion,
notice errors to which no exception has been taken, if the errors are obvious, or if they
otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings”
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)); United States v. Pineda-Ortuno,
952 F.2d 98, 105 (5th Cir. 1992) (“Where plain error is apparent, the issue may be raised sua
sponte by this court even though it is not assigned or specified.”); United States v. Montemayor,
703 F.2d 109, 114 n.7 (5th Cir. 1983) (“An appellate court will not consider sua sponte an
argument not raised in the court below or urged by the litigants except to prevent a
miscarriage of justice.”).
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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 Cir. 2010). “To be
‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable
dispute.’” Id. at 241 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429
(2009)). To affect the defendant’s substantial rights, the defendant must
demonstrate 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); United 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. 2011).
As detailed above, the district 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
defendant’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 consideration.” Johnson v. United
States, 520 U.S. 461, 468 (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 of when to judge the obviousness of an error has produced not
only an inter-circuit split,11 but also an intra-circuit split12 on the question.
11
Compare United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011)
(“When the state of the law is unclear at the time of trial and is then clarified by subsequent
authority, the district court’s error is still not considered plain. . . . Therefore, plain error
‘normally means error plain at the time the district court made the alleged mistake.’”); United
States v. Mouling, 557 F.3d 658, 664 (D.C. Cir.) (“We therefore hold that where, as here, the
law was unsettled at the time of trial but becomes settled by the time of appeal, the general
rule applies, and we assess error as of the time of trial.”), cert. denied, – U.S. – , 130 S. Ct. 795
(2009), with United States v. Crosgrove, 637 F.3d 646, 656–57 (6th Cir. 2011) ( “However, the
requirement that the error be plain means ‘plain under current law.’ . . . For plain error
review, current law ‘is the law as it exists at the time of review.’”); United States v. Gamez, 577
F.3d 394, 400 (2d Cir. 2009) (per curiam) (“A court of appeals cannot correct an error pursuant
to Rule 52(b) unless the error is clear under current law . . . . Whether an error is ‘plain’ is
determined by reference to the law as of the time of appeal.” (internal quotation marks and
citations omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007) (citing Johnson
for the proposition “that error is plain if the law is clear at the time of direct appellate review,
even though governing law was unclear at time of trial”); United States v. Underwood, 446
F.3d 1340, 1343 (11th Cir. 2006) (noting that “even though the error was not plain at the time
of sentencing, the subsequent issuance of [a Supreme Court opinion] establishes that the error
is plain at the time of appellate consideration”).
12
Several opinions have held that we consider the law at the time of trial to decide the
obviousness of the error. See, e.g., Henderson, 646 F.3d at 225 (“[A]n error is plain only if it
was clear under current law at the time of trial.” (internal quotation marks omitted)); United
States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008) (“‘Plain’ is synonymous with ‘clear’ or
‘obvious,’ and at a minimum, contemplates an error which was clear under current law at the
time of trial.” (quoting United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005));
United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998) (same). On the other hand, certain
“opinions have concluded that Johnson established that the court considers the error at the
time of appeal in deciding whether it is plain.” Henderson, 2011 WL 6223057, at *4 (Haynes,
J., dissenting from denial of petition for reh’g en banc) (citing United States v. Bishop, 603 F.3d
279, 281 (5th Cir.) (“We determine whether an alleged error is plain by reference to existing
law at the time of appeal.”), cert. denied, – U.S. – , 131 S. Ct. 272 (2010); United States v.
Gonzales-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008) (“[T]he error need only be plain at the
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United States v. Henderson, – F.3d – , 2011 WL 6223057, at *3 (5th Cir. 2011)
(Haynes, J., dissenting from denial of petition for reh’g en banc). 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.3d 947, 951 (5th Cir. 1994)
(“It is of no consequence that Lopez was decided after the proceedings in the
district court concluded. Since this case is on direct appeal, newly announced
rules apply.” (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). In this case,
we will follow our general rule that where “two previous holdings or lines of
precedent conflict, the earlier opinion controls and is the binding precedent in
this circuit.” United States v. Wheeler, 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 newly announced prohibition on a sentencing
court’s consideration of the need for the defendant to receive treatment or
rehabilitation when it determines the length of his sentence. We believe this
result 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.
Turning to the third prong, it is evident that the district court’s error
affected Broussard’s substantial rights because the court’s reliance on
Broussard’s need for treatment skewed the sentencing determination. We do not
dispute that the district court considered other permissible factors in explaining
its chosen sentence for Broussard; however, it is also quite apparent from the
time of appellate consideration.”)).
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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 “sick 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 convicted of violating 18 U.S.C. § 2422(b). The
sentencing transcript clearly indicates that the court’s error affected Broussard’s
substantial rights. Finally, our failure to address the district court’s obvious
error, which would allow such a lengthy, unlawful sentence to stand, would
seriously affect the fairness, integrity, and public reputation of judicial
proceedings.
Accordingly, because the district court committed plain error in
determining the length of Broussard’s sentence based on his need to obtain
treatment and rehabilitation, 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 district court’s sentence, or his
objection to the district court’s consideration of the Government’s late-submitted
sentencing memorandum.13
13
Finally, we take the opportunity to urge the full court to consider the timing question
presented by the circumstances in this case: whether we judge the obviousness of error at the
time of the district court proceeding or at the time of appellate review. Given the frequency
of plain error review, especially in sentencing cases where intervening decisions clarify or
solidify law that was unclear at the time of the district court proceeding, but clear by the time
of appellate review, it is an issue worthy of the full court’s attention, as highlighted most
recently by Judge Haynes. Henderson, 2011 WL 6223057, at *4-5 (Haynes, J., dissenting from
denial of petition for reh’g en banc).
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No. 11-30274
IV.
In sum, we hold 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 criminal sexual activity is
subject to reasonable dispute under the caselaw. As a consequence, 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