The Fourth Circuit’s unanimous opinion today in United States v. Strieper affirms the imposition of two sentencing enhancements on attempted enticement and child pornography charges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Shedd joined.
Among the issues discussed is whether one can attempt to entice without having identified a particular minor to entice. The panel believed so:
At oral argument, Strieper also suggested that there must be an identifiable victim to constitute an attempt. This argument did not appear in Strieper’s brief, and as such, it is waived. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). In addition, this position lacks merit, as it is well established that attempt requires only the requisite intent to commit the crime and a substantial step toward its commission. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). So long as these elements are satisfied, no identified victim is necessary. Indeed, as we noted at oral argument, if two individuals intending to rob a bank start out with all accoutrements necessary for a robbery and agree simply to rob the first bank they happen upon rather than identifying a specific bank ahead of time, we could still conclude that the individuals had attempted to commit robbery.