Fifth Circuit Holds § 2422(b) “Sexual Activity” Includes Nonphysical Conduct, Affirming Attempted Coercion to Produce Lascivious Images

Introduction

United States v. Jimenez, No. 24-40703 (5th Cir. Oct. 28, 2025), addresses whether 18 U.S.C. § 2422(b)—the federal enticement statute—covers nonphysical “sexual activity” when a defendant, through electronic communications, solicits a minor to create and send sexually explicit images. After a stipulated bench trial, the district court convicted George Jimenez on Count One (coercion and enticement of a minor under § 2422(b)), relying on underlying offenses and definitions in 18 U.S.C. §§ 2251 and 2256. On appeal, Jimenez argued (1) § 2422(b) reaches only interpersonal physical conduct and therefore his online solicitation fell outside the statute, and (2) the evidence was insufficient to show he attempted to coerce a “lascivious exhibition” of a minor’s genitals or pubic area as defined in § 2256.

The Fifth Circuit affirms. It holds that § 2422(b) is not limited to physical acts; rather, in light of statutory cross-references—including 18 U.S.C. § 2427 and § 2256—the statute encompasses nonphysical sexual activity, including the production of child pornography. The court also concludes the evidence suffices to show Jimenez attempted to coerce the minor to engage in a “lascivious exhibition,” applying the widely used Dost factors. The opinion thus confirms that online enticement to produce sexualized images qualifies as “sexual activity” for § 2422(b) purposes and that explicit, repeated requests for such images can satisfy the attempt element.

Summary of the Opinion

• Preservation and review: Jimenez did not preserve the argument that § 2422(b) covers only physical contact in his Rule 29 motion, so the Fifth Circuit reviews that contention for plain error, not de novo. By contrast, the “lascivious exhibition” determination is reviewed for clear error because it is a fact-intensive inquiry.
• Textual and structural holding: Reading §§ 2422(b), 2427, 2251, and 2256 in pari materia, “sexual activity” in § 2422(b) includes nonphysical conduct such as the production of child pornography; it “does not require interpersonal physical contact.” The breadth of the term “any sexual activity” supports this interpretation, as does legislative purpose and sister-circuit authority.
• Sufficiency on lasciviousness: Applying the Dost framework, the court finds ample evidence that Jimenez attempted to coerce a “lascivious exhibition” of the minor’s genitals or pubic area—most notably through his repeated, explicit requests for nude images focused on the pubic region and his self-professed sexual purpose.
• Disposition: Conviction affirmed; the district court’s judgment stands in full.

Factual and Procedural Background

Over approximately six weeks in 2019, Jimenez posed as a thirteen-year-old boy and used texting applications to communicate with multiple minors, including his girlfriend’s daughter (MV-1). He sent nude images of himself and solicited sexualized images from the minors. In messages to MV-1 on April 3, 2019, Jimenez pressed for nude photographs—explicitly requesting a “shaved pic” and “Just the top half”—and he repeated these requests. MV-1’s mother provided both phones to the FBI, which obtained a warrant and uncovered the communications.

A grand jury indicted Jimenez on two § 2422(b) counts and five counts under 18 U.S.C. § 1470 (transfer of obscene material to a minor). By the time of trial, he pleaded to two § 1470 counts, the Government dismissed other counts, and the bench trial proceeded on Count One (§ 2422(b)). The district court found Jimenez guilty and imposed an upward-variance sentence of 240 months’ imprisonment and 10 years’ supervised release. Jimenez appealed his conviction, challenging the legal scope of § 2422(b) and the sufficiency of the evidence regarding “lascivious exhibition.”

Detailed Analysis

Precedents Cited and Their Influence

• Preservation and standards of review:
  • United States v. McDowell, 498 F.3d 308 (5th Cir. 2007): To preserve a sufficiency argument, a defendant must specify the particular ground in a Rule 29 motion. Jimenez did not articulate below that § 2422(b) demands interpersonal contact, so that claim is unpreserved.
  • United States v. Lamartiniere, 100 F.4th 625 (5th Cir. 2024) (citing United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc)): On preserved sufficiency challenges, the court reviews de novo but with deference to the verdict. The court invokes the general standard, though this was a bench trial.
  • United States v. Suarez, 879 F.3d 626 (5th Cir. 2018); Puckett v. United States, 556 U.S. 129 (2009); United States v. Rao, 123 F.4th 270 (5th Cir. 2024); United States v. Brown, 727 F.3d 329 (5th Cir. 2013): Plain-error framework—relief requires obvious insufficiency causing a manifest miscarriage of justice. That high bar is not met here.
• Scope of “sexual activity” under § 2422(b):
  • United States v. Howard, 766 F.3d 414 (5th Cir. 2014): § 2422(b) does not require that sexual contact actually occur; the crime is the intentional enticement to engage in sexual activity. Howard also underscores that sending explicit material can be probative of intent.
  • United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014): Legislative history of the 1996 Telecommunications Act shows Congress intended to protect children from online harm, supporting a reading that reaches nonphysical online exploitation.
  • United States v. Taylor, 640 F.3d 255 (7th Cir. 2011): Interpreted “sexual activity” to require physical contact. The Fifth Circuit deems Taylor unpersuasive in light of subsequent congressional clarification—specifically the 2023 statutory amendment codified at § 2427—indicating § 2422(b) encompasses nonphysical conduct.
  • United States v. Dominguez, 997 F.3d 1121 (11th Cir. 2021); United States v. Fugit, 703 F.3d 248 (4th Cir. 2012); United States v. Jakits, 129 F.4th 314 (6th Cir. 2025): Sister circuits recognize that child pornography can be produced without interpersonal physical contact, reinforcing that nonphysical conduct falls within the ambit of sexual exploitation provisions that feed into § 2422(b).
  • Ali v. Federal Bureau of Prisons, 552 U.S. 214 (2008): The term “any” generally signals breadth; here, “any sexual activity” favors an expansive interpretation.
  • FCC v. AT&T Inc., 562 U.S. 397 (2011): Phrases may carry meanings different from their constituent words; nevertheless, the Fifth Circuit finds “any” decisive in this context, broadening “sexual activity.”
  • United States v. Santos, 553 U.S. 507 (2008): Rule of lenity applies to grievous ambiguity. The Fifth Circuit holds lenity is inapplicable given statutory cross-references and common understandings reflected in § 2427 and § 2256.
  • Intel Corp. Inv. Policy Comm. v. Sulyma, 589 U.S. 178 (2020): Amendments should have “real and substantial effect.” The court relies on 2023 changes to underscore Congress’s intent to include nonphysical conduct.
• Lascivious exhibition and the Dost framework:
  • United States v. Wilkerson, 124 F.4th 361 (5th Cir. 2024), cert. denied, 145 S. Ct. 2770 (2025): Confirms the use of the six Dost factors and the clear-error standard when determining whether material is a lascivious exhibition.
  • United States v. Steen, 634 F.3d 822 (5th Cir. 2011); United States v. Rider, 94 F.4th 445 (5th Cir. 2024); United States v. Grimes, 244 F.3d 375 (5th Cir. 2001): Define and apply “lascivious exhibition” and adopt the Dost factors; emphasize no single factor is dispositive and factor six (intent to elicit a sexual response) is often the most challenging and central.

The Court’s Legal Reasoning

1) “Sexual Activity” in § 2422(b) Includes Nonphysical Conduct

The court reads the relevant provisions together. Section 2422(b) criminalizes persuading, inducing, enticing, or coercing a minor to engage in “any sexual activity for which any person can be charged with a criminal offense,” or attempting to do so. Section 2251(a) provides a qualifying underlying offense: using or enticing a minor to engage in “sexually explicit conduct” for the purpose of producing or transmitting a visual depiction. Section 2427, enacted as a 2023 clarification, ties “sexually explicit conduct” to § 2256(8)’s definition of child pornography and expressly disclaims any requirement of interpersonal physical contact. Reading these provisions in pari materia, the Fifth Circuit holds that “sexual activity” in § 2422(b) reaches nonphysical conduct, including the production of child pornography by electronic means.

Text and structure do the heavy lifting. The word “any” in “any sexual activity”—as the Supreme Court has emphasized in other contexts—signals breadth. The court also rejects the rule-of-lenity argument because the statutory scheme supplies workable meanings through internal cross-references; in such circumstances, there is no grievous ambiguity requiring lenity. Legislative purpose, reflected in the Telecommunications Act of 1996 conference report and later amendments, further confirms Congress’s aim to protect children from online harms, not only in-person abuse.

The court addresses contrary authority. Jimenez relied on the Seventh Circuit’s 2011 decision in Taylor, which read “sexual activity” to require physical contact at a time when the statute lacked a clarifying cross-reference. The Fifth Circuit finds Taylor overtaken by subsequent congressional action in 2023 and unpersuasive in this circuit. It also notes aligned circuit precedent recognizing that child pornography can be created absent interpersonal contact, which supports the Fifth Circuit’s reading of § 2422(b).

2) Attempted Coercion to Elicit a “Lascivious Exhibition” Was Supported by Sufficient Evidence

Turning to the “lascivious exhibition” issue, the court applies the Dost factors under a clear-error standard. Even though Count One involved an attempt and not the actual receipt of images, the focus is whether the evidence shows Jimenez sought images that would have constituted a lascivious exhibition under § 2256(2)(A)(v).

The court highlights three Dost factors as satisfied by the record:

• Factor 1 (focal point): Jimenez repeatedly requested images centered on the minor’s pubic area—explicitly asking for a “shaved pic” and “Just the top half.”
• Factor 4 (nudity): He sought nude pictures of the minor’s pubic area and breasts.
• Factor 6 (intent to elicit a sexual response): He acknowledged seeking the images for his own sexual arousal and expressed excitement at the prospect of receiving them.

Other Dost factors (e.g., suggestive setting, pose, coyness) were not strongly present, but the Fifth Circuit reiterates no single factor is dispositive and strict adherence is not required. The totality sufficed to show the requested content would have been a lascivious exhibition and, thus, the attempt to coerce such images falls within § 2422(b) via § 2251(a) and § 2256.

3) Standards of Review and Preservation

The court underscores a procedural point with practical consequences: a defendant preserves only the specific grounds raised in a Rule 29 motion. Although defense counsel asked questions at trial about the lack of in-person contact, that did not preserve the legal claim that § 2422(b) requires interpersonal physical contact. As a result, the Fifth Circuit applied plain-error review to that legal question and found no error, much less a clear and obvious one.

On the “lascivious exhibition” inquiry, the Fifth Circuit follows its precedent applying clear-error review to a district court’s fact-intensive determination. The bench trial posture does not change the outcome because the district court’s findings were amply supported by the record.

Impact and Implications

• Clarification within the Fifth Circuit: Jimenez cements that § 2422(b) covers nonphysical forms of sexual exploitation, including online enticement to produce child pornography. This reduces any residual uncertainty in cases lacking in-person contact and aligns the Fifth Circuit with congressional clarifications made in 2023.
• Charging and proof strategies:
  • For prosecutors: Where a defendant solicits sexualized images from minors, § 2422(b) is available even absent meetings or physical contact. Evidence such as explicit requests zeroing in on genitals/pubic areas, repeated urging, and admissions of sexual purpose will be probative under Dost.
  • For defense counsel: Preservation is pivotal. To obtain de novo review, defendants must identify each specific insufficiency ground in their Rule 29 motions. Moreover, challenges to the interpretation of “sexual activity” must grapple with §§ 2427 and 2256.
• Doctrinal harmonization: The decision integrates § 2422(b) with §§ 2251, 2256, and 2427, reinforcing an in-pari-materia approach to the federal child exploitation regime. It also narrows the practical impact of contrary pre-2023 interpretations such as Taylor.
• Boundaries of “lasciviousness”: Jimenez confirms that courts may find lasciviousness based on the nature of the request and the defendant’s intent, even if no image is actually produced, so long as the requested depiction would meet § 2256(2)(A)(v) if created. The opinion emphasizes that not all Dost factors must be present.
• Constitutional backdrop: The Fifth Circuit again notes that § 2422(b) has withstood challenges based on overbreadth and ambiguity. The court’s text-based reasoning and reliance on explicit statutory definitions further insulate § 2422(b) from vagueness attacks in the context of online solicitation.

Complex Concepts Simplified

• 18 U.S.C. § 2422(b) (Enticement): Makes it a crime to persuade, induce, entice, or coerce a minor—by any means of interstate commerce (e.g., phone, internet)—to engage in sexual activity for which someone can be criminally charged, or to attempt to do so. The crime focuses on the enticement, not the completion of the sexual act.
• What counts as “sexual activity”?: The Fifth Circuit reads “sexual activity” to include “sexually explicit conduct” linked by §§ 2427 and 2256. That includes producing child pornography; it does not have to involve in-person touching.
• 18 U.S.C. § 2251(a) (Sexual exploitation of children): Criminalizes using or persuading a minor to engage in sexually explicit conduct for the purpose of producing or transmitting a visual depiction. A violation of § 2251(a) serves as a qualifying underlying offense for § 2422(b).
• 18 U.S.C. § 2256 (Definitions): Defines “sexually explicit conduct,” including “lascivious exhibition of the genitals or pubic area” (§ 2256(2)(A)(v)), and “child pornography” (§ 2256(8)), which covers images of minors engaged in sexually explicit conduct.
• Lascivious exhibition: A depiction designed to draw attention to a child’s genitals or pubic area to excite sexual arousal in the viewer. Courts often consider six nonexclusive Dost factors, including focal point, nudity, and whether the depiction is intended to elicit a sexual response.
• Attempt: You can be guilty even if the images were never sent; what matters is taking a “substantial step” toward committing the crime (e.g., explicit, repeated requests for sexual images). In this appeal, the “substantial step” point was not preserved, and the court relied on other grounds.
• Rule of lenity: If a criminal statute remains grievously ambiguous after ordinary tools of interpretation, courts construe it in favor of the defendant. Here, statutory cross-references and the 2023 clarification resolved ambiguity.
• Standards of review:
  • Plain error: For unpreserved claims, the error must be clear or obvious and affect substantial rights; reversal is rare.
  • Clear error: Deferential review of factual findings; reversal only if the appellate court is left with a definite and firm conviction that a mistake has been made.

Observations and Practice Notes

• Preservation matters: The court reiterates that defendants must raise specific insufficiency grounds in Rule 29 motions. General references at trial (e.g., questioning about lack of physical contact) do not preserve a statutory-interpretation challenge.
• Statutory coherence: Jimenez exemplifies in-pari-materia reasoning. Even though § 2422(b) does not itself define “sexual activity,” § 2427 and § 2256 supply the necessary clarity, especially post-2023.
• Attempts via electronic means: This case confirms that electronic solicitations—texts, DMs, and similar communications—can satisfy § 2422(b)’s “sexual activity” prong when they seek the production of sexualized images of minors.
• Dost factors remain central in the Fifth Circuit: While contested in some quarters, the Fifth Circuit continues to rely on the Dost framework and apply it flexibly to the totality of the circumstances.
• Technical point: The opinion references “Fed. R. Civ. P. 29,” which appears to be a typographical reference to Federal Rule of Criminal Procedure 29, the rule governing judgments of acquittal in criminal cases.

Conclusion

United States v. Jimenez establishes an important clarification: § 2422(b)’s “sexual activity” is not limited to in-person physical contact. In light of §§ 2427 and 2256, it encompasses nonphysical sexual exploitation, including the production of child pornography via electronic solicitation. The court further confirms that an attempt to procure “lascivious” images can be proven through explicit, repeated requests aimed at the minor’s pubic area, especially where the defendant’s sexual purpose is manifest. Procedurally, the opinion underscores the necessity of preserving specific sufficiency grounds.

In the broader legal landscape, Jimenez harmonizes § 2422(b) with Congress’s 2023 clarification and with other circuits recognizing nonphysical child exploitation offenses. For investigators and prosecutors, the decision validates using § 2422(b) in online solicitation cases even without in-person contact. For defense counsel, it highlights the importance of targeted preservation and the difficulty of mounting lenity or narrow-construction arguments where Congress has supplied cross-referenced definitions. The Fifth Circuit’s approach strengthens the federal framework protecting minors from online sexual exploitation while maintaining doctrinal coherence across interrelated statutes.