United States v. Anthony F. Murrell, 368 F.3d 1283 (11th Cir. 2004). · Go Syfert
United States v. Anthony F. Murrell, 368 F.3d 1283 (11th Cir. 2004). Cases Citing This Book View Copy Cite
“to sustain a conviction for the crime of attempt, the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward com- mission of the offense.”
436 citation events (406 in the last 25 years) across 30 distinct courts.
Strongest positive: United States v. Michael Davis (ca11, 2022-10-21)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Michael Davis
11th Cir. · 2022 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
to sustain a conviction for the crime of attempt, the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward com- mission of the offense.
discussed Cited as authority (rule) United States v. Amol Khedkar
11th Cir. · 2025 · signal: cf. · confidence medium
Cf. United States v. Murrell, 368 F.3d 1283, 1289 (11th Cir. 2004) (holding that a similar age-based enhancement was “directed at the defend- ant’s intent, rather than any actual harm caused to a genuine vic- tim,” so “there is no difference between an undercover officer vic- tim and a fictitious victim”).
discussed Cited as authority (rule) Leija v. United States
S.D. Fla. · 2025 · confidence medium
In United States v. Lee, for example, the Eleventh Circuit “squarely rejected the argument that ‘because the defendant did not directly communicate with a minor or a person he believed to be a minor, his conduct was not criminally proscribed by the language of [§§ 2251(a) and (e)].’” 603 F.3d 904 , 912–13 (11th Cir. 2010) (quoting United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004)).
discussed Cited as authority (rule) United States v. William Leonard
11th Cir. · 2025 · confidence medium
See, e.g., Gillis, 938 F.3d at 1190 (concluding that the defendant “took a substantial step toward consummating that plan [to have sex with a minor] when he drove nearly an hour from his home” to meet up with her); United States v. Lee, 603 F.3d 904, 915 (11th Cir. 2010) (concluding there was sufficient evidence to find that the defendant took a substantial step where he “re- quested assistance” from a parent in having sex with her daughters USCA11 Case: 24-11435 Document: 38-1 Date Filed: 06/11/2025 Page: 13 of 16 24-11435 Opinion of the Court 13 and where, “[o]ver the course of sev…
discussed Cited as authority (rule) United States v. Jordan Jysae Pulido (2×) also: Cited "see"
11th Cir. · 2025 · confidence medium
Importantly here, “[t]he underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persua- sion, inducement, enticement, or coercion of the minor rather than the sex act itself.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). 8 Thus, put simply, a person can be guilty of vio- lating § 2422(b) if he entices a minor to engage in sexual activity, regardless of whether the sexual activity ever occurs.
discussed Cited as authority (rule) United States v. Kerby Brown, Jr.
11th Cir. · 2025 · confidence medium
Section 1594(a) provides that “[w]hoever attempts to violate . . . [section] 1591 shall be punisha- ble in the same manner as a completed violation of that section.” To prove attempt, the government need prove only that the defend- ant acted with “the specific intent to engage in the criminal conduct for which he is charged” and that the defendant “took a substantial step toward commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
discussed Cited as authority (rule) Orr v. United States
M.D. Fla. · 2024 · confidence medium
See United States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010) (stating that in order to prove a violation of 18 U.S.C. § 2422 (b) when a defendant communicates directly with a minor, the government must prove the defendant intended to cause assent on the part of the minor, not that the defendant “acted with the specific intent to engage in sexual activity”) (quoting United States v. Yost, 479 F.3d 815 , 819 n.3 (11th Cir. 2007) (per curiam)); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (stating that the underlying conduct that 18 U.S.C. § 2422 (b) criminalizes is the pe…
examined Cited as authority (rule) United States v. Alfredo Bottom Ruiz (3×)
11th Cir. · 2023 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
discussed Cited as authority (rule) United States v. Keith Astley Taylor
11th Cir. · 2023 · confidence medium
A substantial step occurs when “the defendant’s objective acts mark his conduct as criminal such that his acts as a whole strongly corroborate the required culpability.” United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004).
cited Cited as authority (rule) United States v. Franklin Eller, Jr.
9th Cir. · 2023 · confidence medium
Id. at 745 (citing with approval United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004)).
discussed Cited as authority (rule) USA V. NOEL MACAPAGAL (2×) also: Cited "see"
9th Cir. · 2022 · confidence medium
See United States v. Vinton, 946 F.3d 847, 853 (6th Cir. 2020); United States v. Caudill, 709 F.3d 444, 446 (5th Cir. 2013); United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Douglas, 626 F.3d 161 , 164–65 (2d Cir. 2010) (per curiam); United States v. Nestor, 574 F.3d 159, 160-62 (3d Cir. 2009); United States v. Spurlock, 495 F.3d 1011, 1013-14 (8th Cir. 2007); United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004).
cited Cited as authority (rule) United States v. Andrew Christian Hammock
11th Cir. · 2022 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004).
discussed Cited as authority (rule) United States v. Michael Craig Gorycki (2×) also: Cited "see"
11th Cir. · 2022 · confidence medium
The district court denied this request as foreclosed by United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004), which held that “induce” means simply “to stimulate the occurrence of” or to “cause.” Accordingly, the court gave this Circuit’s pattern instruction concerning “in- duce,” which mirrored Murrell’s definition.
discussed Cited as authority (rule) United States v. Mirza Hussain (2×)
11th Cir. · 2022 · confidence medium
“To find that a substantial step was taken, the court must determine that the defendant’s objective acts mark his conduct as criminal such that his acts as a whole strongly corroborate the re- quired culpability.” United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004).
cited Cited as authority (rule) United States v. Eric Lee Brown
11th Cir. · 2021 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
cited Cited as authority (rule) Conrad L. Hoever v. R. Marks
11th Cir. · 2021 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
cited Cited as authority (rule) Stoune v. United States
M.D. Fla. · 2021 · confidence medium
United States v. Farley, 607 F.3d 1294, 1325 (11th Cir. 2010); United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
discussed Cited as authority (rule) United States v. Keneon Fitzroy Isaac
11th Cir. · 2021 · signal: cf. · confidence medium
Cf. Murrell, 368 F.3d at 1290 (undercover agent had “custody, care, or supervisory control” over fictitious minor daughter when he “was in a position to direct or command the actions of the” fictitious daughter) (emphasis added).
discussed Cited as authority (rule) United States v. Alexander Davis
3rd Cir. · 2021 · confidence medium
He relies on his lack of a criminal 34 Compare Brand, 467 F.3d at 204 (condoms discussed over communications); Faust, 795 F.3d at 1250 (same), with United States v. Gagliardi, 506 F.3d 140, 144, 150-51 (2d Cir. 2007) (condoms not tied to communications); United States v. Strubberg, 929 F.3d 969, 975 (8th Cir. 2019) (same); United States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009) (same); United States v. Murrell, 368 F.3d 1283, 1288 (9th Cir. 2004) (same). 16 history, his attempts to avoid explicit sexual conversation with Marisa, and Officer Block’s tenacity in the sting operation.
discussed Cited as authority (rule) United States v. Brennon Kyle Holley (2×)
11th Cir. · 2020 · confidence medium
First, he contends that, by instructing the jury that the substantial 3 Case: 20-10050 Date Filed: 06/30/2020 Page: 4 of 8 step must have been “toward bringing about or engaging in that [unlawful] sexual activity” (the italicized portion of the instruction above), the court misled the jury into believing that “traveling to meet the fictitious minor can constitute a substantial step toward an attempted violation of § 2422(b).” In Holley’s view, travel is not a substantial step under § 2422(b) because the substantive crime is “the persuasion, inducement, enticement, or coercion of …
discussed Cited as authority (rule) United States v. Jeffery Allmond, Jr. (2×) also: Cited "see"
11th Cir. · 2020 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). 16 “We have held that the terms persuade, induce, and entice in § 2422(b) should be given their ordinary meaning.” United States v. Rutgerson, 822 F.3d 1223, 1232 (11th Cir. 2016).
examined Cited as authority (rule) United States v. Dayton Michael Cramer (4×) also: Cited "see"
11th Cir. · 2019 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004).
cited Cited as authority (rule) United States v. Clayton Junior Thornburg
11th Cir. · 2019 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (involving § 2422(b)).
discussed Cited as authority (rule) Irma Ovalles v. United States
11th Cir. · 2018 · confidence medium
“A substantial step can be shown when the defendant’s objective acts mark h[er] conduct as criminal and, as a whole, ‘strongly corroborate the required culpability.’” Yost, 479 F.3d at 819 (quoting United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004)).
discussed Cited as authority (rule) United States v. Steven Arthur Morrill (2×) also: Cited "see"
11th Cir. · 2018 · confidence medium
An attempt occurs if the defendant, “using the internet, act[s] with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
cited Cited as authority (rule) United States v. Teona N. Rodgers
11th Cir. · 2018 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
discussed Cited as authority (rule) Nathaniel Charlton v. United States
11th Cir. · 2018 · confidence medium
“A substantial step can be shown when the defendant’s objective acts mark his conduct as criminal and, as a whole, ‘strongly corroborate the required culpability.’” Id. (quoting United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004)).
discussed Cited as authority (rule) United States v. George Adrien Brooks (2×)
11th Cir. · 2018 · confidence medium
“To sustain a conviction for the crime of attempt, the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward commission of the offense.” Murrell, 368 F.3d at 1286 (citations omitted).
discussed Cited as authority (rule) United States v. Robert M. Grafton, Jr.
11th Cir. · 2017 · confidence medium
We have previously held that the term “induce” in § 2422 means “to stimulate the occurrence of; cause,” and rejected an alternative definition that rendered it essentially synonymous with the word “persuade.” United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004) (alteration omitted) (quotation omitted).
discussed Cited as authority (rule) United States v. Adrian Galvin Ruiz
11th Cir. · 2017 · confidence medium
That is, the government was required to prove that Ruiz “acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004); see 18 U.S.C. § 2422 (b).
examined Cited as authority (rule) United States v. Dennis Michael Wilkerson (4×) also: Cited "see"
11th Cir. · 2017 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286-88 (11th Cir. 2004).
examined Cited as authority (rule) United States v. Freeman Eugene Jockisch (3×) also: Cited "see, e.g."
11th Cir. · 2017 · confidence medium
In fact, § 2422(b) does not require that the defendant commit any prior crime at all nor that the defendant actually engage in any unlawful sexual activity with the minor. 7 Instead, “§ 2422(b)’s underlying proscribed criminal conduct is the ‘persuasion, inducement, enticement, or coer cion of the minor rather than the sex act itself.’ ” 8 United States v. Yost, 479 F.3d 815 , 819 n.3 (11th Cir. 2007) (emphasis added) (quoting United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004)); see also United States v. Lee, 603 F.3d 904, 916 (11th Cir. 2010). 9 Thus, “if a person pe…
cited Cited as authority (rule) United States v. Charvester D. Anthony
11th Cir. · 2017 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). 2 .
cited Cited as authority (rule) United States v. Curtis Billups
5th Cir. · 2017 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1289 (11th Cir. 2004). 13 .
cited Cited as authority (rule) United States v. Robert F. Matlack
11th Cir. · 2016 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004).
discussed Cited as authority (rule) United States v. Donald Lamoureaux
8th Cir. · 2016 · confidence medium
We held “that Spurlock intended to entice minor girls to have sex with him, and that his *811 conversations with their purported mother were a substantial step toward that end.” Id. at 1014 , We further “not[ed] that ‘the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective.’” Id. (quoting United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004)).
examined Cited as authority (rule) United States v. Lancy White, Jr. (4×) also: Cited "see"
11th Cir. · 2016 · confidence medium
In order to sustain a conviction for attempt, “the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
discussed Cited as authority (rule) United States v. Richard Rutgerson
11th Cir. · 2016 · confidence medium
“The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004).
examined Cited as authority (rule) United States v. James Patrick Baker (3×) also: Cited "see", Cited "see, e.g."
11th Cir. · 2016 · confidence medium
In order to sustain a conviction for attempt, “the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004).
cited Cited as authority (rule) United States v. Erasmo Aguinaga
11th Cir. · 2016 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004).
cited Cited as authority (rule) United States v. Robert Brandon Bilus
11th Cir. · 2015 · confidence medium
Id. (citing United States v. Yost, 479 F.3d 815, 819 (11th Cir.2007); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004); United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.2001)).
discussed Cited as authority (rule) United States v. Laureys
D.D.C. · 2015 · confidence medium
Circuit had no precedent equivalent to United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004), which approved the application of 18 U.S.C. § 2422 (b) to attempts to persuade or induce an adult to cause a child to engage in sexual activity.
cited Cited as authority (rule) United States v. Matthew Andrew Carter
11th Cir. · 2015 · confidence medium
We also review de novo the district court’s interpretation of a statute. *1323 United States v. Murrell, 368 F.3d 1283, 1285 (2004). 11 .
cited Cited as authority (rule) United States v. Matthew Andrew Carter
11th Cir. · 2015 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). 21 Case: 13-13518 Date Filed: 01/27/2015 Page: 22 of 39 § 2423(b) in a further attempt to expand the protection of minors.
discussed Cited as authority (rule) United States v. Roman
S.D. Ohio · 2014 · confidence medium
Of the cases discussed by the Saucedo court, two are particularly germane to the case sub judice: United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir.2004), and United States v. Tykarsky, 446 F.3d 458 (3d Cir.2006).
examined Cited as authority (rule) United States v. Murali Krisha A. Reddy (3×) also: Cited "see"
11th Cir. · 2014 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004).
cited Cited as authority (rule) United States v. Domingo Beiza-Hernandez
11th Cir. · 2014 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004).
discussed Cited as authority (rule) United States v. LaSalle
A.F.C.C.A. · 2014 · confidence medium
In United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011), the Eleventh Circuit observed that the “underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself.” Id. at 1298 (quoting United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004)).
discussed Cited as authority (rule) United States v. White (2×) also: Cited "see, e.g."
N.M.C.C.A. · 2014 · confidence medium
Id. at 1288 (Murrell's objective acts, which included two hours of travel to another county to meet a minor girl for sex in exchange for money, and possession of a teddy bear, $300.00 in cash, and a box of condoms when he arrived at the meeting site, “demonstrate unequivocally that he intended to influence a young girl into engaging in unlawful sexual activity and [constitute] a substantial step toward inducing a minor to engage in illicit sexual acts, thereby satisfying the second element of criminal attempt”). 8 In addition, the appellant’s use of a “computer online service” and �…
cited Cited as authority (rule) Denise Abeid-Saba v. Carnival Corporation
11th Cir. · 2013 · confidence medium
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony F. MURRELL, Defendant-Appellant
03-12582.
Court of Appeals for the Eleventh Circuit.
May 4, 2004.
368 F.3d 1283
Gerald S. Rutberg, Maitland, FL, for Defendant-Appellant., Matthew Axelrod, Anne R. Schultz, Asst. U.S. Atty., Madeleine R. Shirley, Su-zan H. Ponzoli, Miami, FL, for Plaintiff-Appellee.
Goldberg, Kravitch, Wilson.
Cited by 199 opinions  |  Published
WILSON, Circuit Judge:

Anthony Murrell appeals his conviction under 18 U.S.C. § 2422(b) for using a facility of interstate commerce to attempt to knowingly. persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity. Specifically, Murrell argues that his conduct — making an online deal with a purported adult father to have sex with the father’s minor daughter — is not within the purview of § 2422, and that certain sentencing enhancements were improperly applied. Upon careful review, we affirm Murrell’s conviction and sentence.

Background

In September 2002, Appellant Anthony Murrell (“Murrell”), under the screen name “Bone 1031,” entered two separate America Online (“AOL”) chat rooms in which he communicated with undercover Detective Neil Spector of the St. Lucie County Sheriffs Office.

On September 16, in the “family love” chat room, Murrell engaged in an online chat with Spector, who was posing as the adult mother of a thirteen year-old daughter. During their exchange, Murrell expressed an interest in meeting the mother and daughter for a “discreet sexual relationship.” In a subsequent email, he stated, “I would like to be able to get intimate with you and [your daughter] if the spark is there,” and provided his phone number.

On September 18, while Detective Spec-tor was in a chat room entitled “Rent F Vry Yng,” in an undercover capacity as an adult male with a fictitious teen daughter, he received another message from Murrell. Murrell wrote: “Hi. Are you renting daughter?” Spector responded that his daughter was thirteen years old. Murrell then wrote that he lived near Orlando and asked if “the daughter enjoyed being rented.” He also inquired whether the daughter had had sex yet, and questioned wheth[*1285] er she would “go along.” Spector asked Murrell whether he was serious and what he had to offer. Murrell suggested that the two speak on the phone, and gave Spector his phone number. Spector also gave Murrell his undercover phone number.

Spector called Murrell and asked him whether he was sincere in his interests and whether he was a “cop.” Murrell replied that he was sincere, but that he wanted the same assurances from Spector. During the conversation, Murrell explained his intentions. He expressed that he wanted to have oral sex and intercourse with the daughter, and stated, “what I actually recommend is maybe once or twice, just me and her.”

Over the next few days, Murrell and Detective Spector communicated online and by telephone, culminating in an agreement that Murrell would meet Spector and his purported daughter at 5:00 p.m. on September 24 at the Vero Beach Holiday Inn, and that Murrell would pay Spector $300.00 for sex with the minor.

At approximately 5:05 p.m. on September 24, Murrell arrived at the Vero Beach Holiday Inn and met with Detective Spec-tor who was acting in his undercover capacity. Murrell showed Spector a teddy bear he had brought for the daughter. He was also carrying $300.00 and a box of condoms. Murrell indicated that he was ready to meet the girl, and was arrested as he walked toward a hotel room in which he believed the minor was waiting.

On October 3, 2002, a federal grand jury in Ft. Pierce, Florida returned an indictment charging Murrell under 18 U.S.C. § 2422(b). Murrell initially pled not guilty. On February 6, 2003, he filed a motion to dismiss the indictment, in which he stipulated to certain facts, but claimed that his actions were not criminal under § 2422. After holding a hearing on the matter, the district court denied his motion. Murrell entered a conditional guilty plea on February 19, 2003, without the benefit of a written plea agreement. As a condition of his plea, he preserved his claim that his stipulated conduct did not violate § 2422.

On April 23, 2003, the district court held a sentencing hearing, in which it overruled Murrell’s objections to the two two-level sentencing enhancements under U.S.S.G. § 2Gl.l(b)(2)(B) and (b)(5) recommended in his PSI. Murrell was sentenced to a 33-month term of imprisonment, to be followed by a three-year period of supervised release. The court also ordered him to participate in sex offender and mental health treatment programs, and imposed restrictions on his use of computers.

Murrell now appeals, asserting that the district court erred in denying his motion to dismiss his indictment, and in applying the two sentencing enhancements. He claims that because he did not directly communicate with a minor or person he believed to be a minor, his conduct was not criminally proscribed by the language of § 2422(b).

Standards of Review

The interpretation of a statute is a question of law subject to de novo review. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999).

We review purely legal questions concerning use of the Sentencing Guidelines de novo. United States v. Williams, 340 F.3d 1231, 1234 n. 8 (11th Cir.2003). Except in certain cases in which the lower court departs from the applicable Guideline range, we review a district court’s application of the Guidelines to the facts with “due deference.” 18 U.S.C. § 3742(e); see also United States v. White, 335 F.3d 1314, 1317 (11th Cir.2003).

[*1286] Discussion

A. Violation of § 24.22(b) Where the Defendant Does Not Communicate Directly with a Minor or Supposed Minor

As a matter of first impression in the federal circuit courts, .we must determine whether a defendant who arranges to have sex with a minor through communications with an adult intermediary, by means of interstate commerce, violates § 2422(b).

Section 2422(b) states, in relevant part: Whoever, using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined [and imprisoned].

18 U.S.C. § 2422(b) (emphasis added).

Murrell was convicted for attempt under the statute because there was no actual minor involved who could have been influenced. He concedes that use of AOL chat rooms and instant messaging satisfies the interstate commerce element of the offense because his communications with Detective Spector traveled through an AOL server based in Virginia. However, he argues that § 2422(b) does not otherwise encompass his conduct because, in his view, one must communicate directly with a minor or supposed minor in order to violate the statute. We disagree.

In United States v. Root, 296 F.3d 1222 (11th Cir.2002), cert. denied, 537 U.S. 1176, 123 S.Ct. 1006, 154 L.Ed.2d 921 (2003), we upheld an attempt conviction under § 2422(b) where a defendant believed he was communicating with a minor, but was actually communicating with an undercover government agent. Id. at 1227-28. Murrell contends that Root is distinguishable from his case because it involved direct communication between the defendant and the purported minor. However, we fail to recognize how this factual discrepancy is relevant to the disposition of the charges against Murrell.

To sustain a conviction for the crime of attempt, the government need only prove (1) that the defendant had the specific intent to engage in the criminal conduct for which he is charged and (2) that he took a substantial step toward commission of the offense. See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir.1994); see also Root, 296 F.3d at 1227-28. For example, we have stated that a conviction for attempted importation of marijuana requires proof of “a specific intent to import marijuana” and a substantial step towards the importation. See United States v. Collins, 779 F.2d 1520, 1527 (11th Cir.1986).

Combining the definition of attempt with the plain language of § 2422(b), the government must first prove that Murrell, using the internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex. The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. [1] That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b). [2]

[*1287] In United States v. Bailey, 228 F.3d 637 (6th Cir.2000), the Sixth Circuit addressed this very issue. The defendant in Bailey contended that attempt under § 2422(b) “requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to commit sexual acts.” Id. at 638. In response, the court held:

While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a dear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade. Defendant Bailey’s attack is therefore meritless.

Id. at 639. Thus, to satisfy the first element of attempt, we must determine whether Murrell acted with the intent to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity. Because we view Murrell’s actions as those of inducement rather than persuasion, enticement, or coercion, we will focus upon that component.

Murrell asserts that he could not have intended to induce a minor to engage in illegal sex acts without actually speaking to a person he believed to be a minor. Put another way, Murrell contends that the minor’s inducement may not be effected indirectly via an intermediary, and that accordingly, he could not have intended to induce a minor to engage in sex by speaking only to a go-between.

We have previously held that the term “induce” in § 2422 is not ambiguous and has a plain and ordinary meaning. See United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir.2003). “Induce” can be defined in two ways. It can be defined as “[t]o lead or move by influence or persuasion; to prevail upon,” or alternatively, “[t]o stimulate the occurrence of; cause.” The ÁM. Heritage DICTIONARY of the English LaNguage 671 (William Morris ed., Houghton Mifflin Co.1981). We must construe the word to avoid making § 2422 superfluous. See Medberry v. Crosby, 351 F.3d 1049, 1061 (11th Cir.2003). To that end, we disfavor the former interpretation of “induce,” which is essentially synonymous with the word “persuade.” By negotiating with the purported father of a minor, Murrell attempted to stimulate or cause the minor to engage in sexual activity with him. Consequently, Murrell’s conduct fits squarely within the definition of “induce.”

Moreover, we note that the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective. In this case, Mur-rell communicated with an adult who he believed to be the father of a thirteen-year-old girl and who presumably exercised influence over the girl. Murrell’s agreement with the father, who was acting as an agent or representative, implied procuring the daughter to engage in sexual activity. Because we find that Murrell acted with the intent to induce a minor to[*1288] engage in unlawful sexual activity, the first element of attempt is satisfied.

Next, we turn to the second element of attempt — whether Murrell took a substantial step toward his intended goal of inducing a thirteen year-old girl to engage in sexual activity with him. To find that a substantial step was taken, the court must determine that the defendant’s objective acts mark his conduct as criminal such that his acts as a whole strongly corroborate the required culpability. United States v. Forbrich, 758 F.2d 555, 557 (11th Cir.1985). Murrell’s objective acts strongly corroborate his culpability and provide clear evidence that his conduct was criminal. Murrell (1) made several explicit incriminating statements to Detective Spec-tor; [3] (2) traveled two hours to another county to meet a minor girl for sex in exchange for money; and (3) carried a teddy bear, $800.00 in cash, and a box of condoms when he arrived at the meeting site. His actions, taken as a whole, demonstrate unequivocally that he intended to influence a young girl into engaging in unlawful sexual activity and that his conduct was therefore criminal. Thus, Mur-rell took a substantial step toward inducing a minor to engage in illicit sexual acts, thereby satisfying the second element of criminal attempt.

Because we find that direct communication with a minor or supposed minor is unnecessary under the text of § 2422(b), and that Murrell’s conduct satisfied the elements of attempt, we hold that such conduct was in violation of the statute.

B. Two-level Sentencing Enhancement Under U.S.S.G. § 2Gl. 1(b)(2)(B)

Murrell received a two-level sentencing enhancement under U.S.S.G. § 2G1.1(b)(2)(B) for an offense involving a “victim” between the ages of twelve and sixteen. The commentary to § 2G1.1 defines the word “victim” as follows:

“Victim” means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, a commercial sex act or prohibited sexual conduct, whether or not the person consented to the commercial sex act or prohibited sexual conduct. Accordingly, “victim” may include an undercover law enforcement officer.

U.S.S.G. § 2G1.1, cmt. n.l (2003). [4] In this case, we have neither an actual victim nor an undercover law enforcement officer “victim.” We must therefore determine whether the increased sentence is justified where there is only a fictitious victim. No circuit has yet considered this question. [5]

[*1289] Because the Sentencing Commission specifically provided that undercover officers are “victims” for purposes of § 2G1.1, we deduce that the enhancement is directed at the defendant’s intent, rather than any actual harm caused to a genuine victim. In terms of the defendant’s intent, as well as any actual harm done, there is no difference between an undercover officer victim and a fictitious victim. Thus, the enhancement applies whether the minor “victim” is real, fictitious, or an undercover officer. [6] Murrell’s two-level sentencing increase under § 2Gl.l(b)(2)(B) is appropriate.

C. Two-level Sentencing Enhancement Under U.S.S.G. § SGl.l(b)(5)

Murrell also received a two-level enhancement under U.S.S.G.

§ 2Gl.l(b)(5), which states:

If a computer or an Internet-access device was used to (A) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in a commercial sex act; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with a minor, increase by 2 levels.

U.S.S.G. § 2Gl.l(b)(5) (2003). Murrell argues that this enhancement is inapplicable to him, again relying on the fact that he expressed no inducement directly to a minor, via the internet.

We find, however, that the sentencing increase under subsection (b)(5) applies. As mentioned above, inducement of a minor under § 2422(b) may take place indirectly. Since Murrell used his computer to communicate with Detective Spector for the purpose of inducing a thirteen-year-old girl to engage in a commercial sex act [7] with him, § 2Gl.l(b)(5)(A) applies. [8]

Our conclusion is further supported by the commentary to § 2G1.1 regarding subsection (b)(5)(A):

Subsection (b)(5)(A) is intended to apply only to the use of a computer or an Internet-access device to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor. Accordingly, the enhancement in subsection (b)(5)(A) would not apply to the use of a computer or an Internet-access device to obtain airline tickets for the minor from an airline’s Internet site.

§ 2G1.1, cmt. n.8 (emphasis added). The commentary clearly indicates that the enhancement is intended to apply to instances in which the defendant communicates with the parent of a minor, provided of course that the parent exercises custody, care, or supervisory control over the mi[*1290] nor. Murrell believed that Detective Spector, in his undercover capacity, exercised such authority over his minor “daughter.” Murrell’s dealings with Detective Spector were premised on his assumption that Detective Spector was in a position to direct or command the actions of the “daughter.” Based on the plain language of the Guideline and its commentary, we hold that Murrell’s two-level sentencing increase under § 2Gl.l(b)(5) is proper.

Accordingly, we affirm Murrell’s conviction and sentence.

AFFIRMED.

1

. In contrast, we note that 18 U.S.C. § 2423(b) prohibits interstate travel "for the purpose of engaging in any illicit sexual conduct with another person.” 18 U.S.C. § 2423(b) (2004). To violate this statute, the defendant must intend to engage in unlawful sex.

2

. Some courts, however, have not made such a distinction. See, e.g., United States v. Far [*1287] ner, 251 F.3d 510, 513 (5th Cir.2001) ("[T]he district court correctly concluded ... that Farner intended to engage in sexual acts with a 14-year-old girl and that he took substantial steps toward committing the crime.”). Even if we were to require the government to prove that Murrell acted with the specific intent to engage in sexual activity with a minor, our result would remain unchanged. Murrell's conduct clearly indicates that he not only intended to induce a minor to engage in sexual activity, but that he also intended to proceed to engage in unlawful sex acts with the minor.

3

.Note that, in Bailey, the Sixth Circuit upheld an attempt conviction under § 2422(b) where the defendant, via online communications, merely tried to convince minors to meet him for sex acts, but none of them were actually persuaded. Thus, the Bailey court reasoned that the "substantial steps” that strongly corroborated the defendant's intent to persuade the minor victims were simply the solicitous messages he sent to them; no travel or additional acts were required to satisfy the "substantial step” requirement. See Bailey, 228 F.3d at 640. We need not reach the question whether communication via a means of interstate commerce, without more, is sufficient to sustain a conviction for attempt under § 2422(b) because Murrell engaged in objective acts in addition to his communications with Detective Spector.

4

. Commentaiy and Application Notes to the Sentencing Guidelines are binding on the courts unless they contradict the plain meaning of the text of the Guidelines. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

5

. In United States v. Angle, 234 F.3d 326 (7th Cir.2000), the Seventh Circuit upheld a similar enhancement under U.S.S.G. § 2A3.1 for a "fictional victim” under a plain error standard. The court noted that no circuit had considered the issue, and stated, "[cjonsider-ing the lack of case authority on this issue, we conclude that, if there was error, Angle cannot demonstrate ... that the error was 'clear or obvious' (in other words, that 'a legal rule was violated during the district court proceedings').” Id. at 346 (citations omitted).[*1289] Section 2A3.1 does not define the word “victim.”

Previously, the Ninth Circuit mentioned that a lower court had declined to apply § 2A3.1 because the victims were fictional. See United States v. Butler, 92 F.3d 960, 963 n. 6 (9th Cir.1996). The Butler court, however, never addressed the meaning or scope of the term "victim” and made no ruling on this question.

6

.In addition, when the Commission amended U.S.S.G. § 2A3.2 to clarify that a "victim” includes an undercover officer, it noted that "[t]his change was made to ensure that offenders who are apprehended in an undercover operation are appropriately punished.” U.S.S.G. Manual, supp. to app. C, amend. 592 at 50 (2000).

7

. A "commercial sex act” is "any sex act, on account of which anything of value is given to or received by any person.” § 2G1.1, cmt. n.l; 18 U.S.C. § 1591(c)(1). Because Murrell planned to exchange $300.00 for sex acts with a minor, his conduct falls within the scope of this definition.

8

. Because subsection (A) of § 2G1.1(b)(5) applies, we need not consider the applicability of subsection (B).