## Facts

- A federal grand jury in the Eastern District of Virginia indicted Timothy Andrew Fugit on two counts: distributing child pornography (18 U.S.C. § 2252A(a)(2), (b)(1)) and enticing or attempting to entice a minor (18 U.S.C. § 2422(b)).
- Without a formal plea agreement, Fugit pleaded guilty to both counts and signed a stipulated statement of facts.
- The statement described an incident in which Fugit, posing online as an underage girl, initiated chat-room contact with an eleven-year-old girl and asked sexual questions about her body, underwear, and nudity, and obtained her phone number.
- Fugit then called the child while pretending to be the fictional girl’s father and asked whether she had seen an adult man naked, whether he could check on her while she was naked, whether she would mind seeing him naked, and whether she would get naked for him.
- The investigation also uncovered extensive child-pornography material and other similar online interactions with minors.
- After sentencing, Fugit sought collateral relief under 28 U.S.C. § 2255, arguing (among other things) that his conduct did not constitute “sexual activity” under § 2422(b) and that counsel was ineffective in connection with the guilty plea.
- The district court denied § 2255 relief, and Fugit appealed.

## Issues

1. Whether Fugit’s statutory challenge to the district court’s interpretation of 18 U.S.C. § 2422(b) was procedurally defaulted because it was not raised at the plea stage or on direct review.
2. Whether § 2422(b)’s requirement of inducing a minor to engage in “sexual activity for which any person can be charged with a criminal offense” can be satisfied by sexually explicit communications and solicitation of nudity, even without physical contact.
3. Whether trial counsel provided ineffective assistance in advising a guilty plea and not challenging the § 2422(b) charge and factual basis.

## Decision

- The Fourth Circuit affirmed the denial of § 2255 relief.
- The court held that Fugit’s statutory interpretation claim was procedurally defaulted because it was not raised in the plea proceedings or on direct appeal, and he did not establish an exception (cause and prejudice or actual innocence).
- In the alternative, the court held the statutory claim failed on the merits because § 2422(b) targets attempts to induce a minor’s assent to unlawful sexual activity and does not require consummated physical contact.
- The court concluded that the stipulated facts supported a qualifying underlying sexual offense under Virginia law and provided an adequate factual basis for the guilty plea.
- The court rejected the ineffective-assistance claims for lack of deficient performance and lack of prejudice.

## Legal Principles

- In § 2255 proceedings, non-constitutional statutory claims generally cannot be raised for the first time if they were available at plea or on direct appeal, absent cause and prejudice or actual innocence.
- Under 18 U.S.C. § 2422(b), the prohibited conduct focuses on persuading, inducing, enticing, or attempting to persuade a minor to engage in criminal sexual activity; physical completion of sexual conduct is not required.
- The “sexual activity” predicate in § 2422(b) may be satisfied by conduct that would be chargeable under applicable state criminal law, including offenses that reach sexually explicit communications and solicitations directed at minors.
- A guilty plea supported by a detailed stipulated factual basis can defeat later collateral attacks on the plea’s factual foundation.
- Under Strickland, ineffective assistance requires both deficient performance and prejudice; in the plea context, prejudice requires a reasonable probability the defendant would have insisted on trial absent counsel’s errors.

## Conclusion

The Fourth Circuit upheld Fugit’s convictions against collateral attack, ruling that his statutory challenge to § 2422(b) was defaulted and, in any event, failed because the statute reaches attempts to induce a minor to engage in criminal sexual activity through communications even without physical contact; the court also found no ineffective assistance connected to the guilty plea.


United States v. Fugit, 703 F.3d 248 (4th Cir. 2012)