United States of America v. Jason Allen Sands

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth***
Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON ALLEN SANDS,
Defendant - Appellant.
No. 11-30050
D.C. No. 9:10-cr-00020-DWM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 8, 2011**
Seattle, Washington
Before: GUY, McKEOWN, and TALLMAN, Circuit Judges.***
Defendant appeals from his conviction for attempting to persuade or entice a
person he believed was a minor to engage in criminal sexual activity in violation of
FILED
DEC 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-30050 2
18 U.S.C. § 2422(b). Although defendant frames the issue on appeal as whether the
denial of his motion for judgment of acquittal violated the Due Process Clause, the
issue is more clearly defined as his contention that the government failed to prove the
elements of the crime charged.
Contrary to defendant’s assertions, sexual intercourse with a child is not
required to establish guilt under § 2422(b), nor is the prosecution required to prove
that an underage child was actually involved in the offense. United States v. Meek,
366 F.3d 705, 718-19 (9th Cir. 2004). It is irrelevant that Montana has a specific
offense of attempting sexual intercourse without consent. Under § 2422(b) the crime
of attempt involves an attempt to secure the consent of the minor to engage in the
criminal act. United States v. Hofus, 598 F.3d 1171, 1179 (9th Cir.), cert. denied, 131
S. Ct. 364 (2010).
AFFIRMED.

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