                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              )      No. 10-50430
                                       )
      Plaintiff – Appellee,            )      D.C. No. 3:09-cr-01250-W-2
                                       )
      v.                               )      MEMORANDUM *
                                       )
PATRICK JONES,                         )
                                       )
      Defendant – Appellant.           )
                                       )
                                       )

                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                           Submitted November 8, 2011 **
                               Pasadena, California

Before:      FERNANDEZ, MOORE,*** and McKEOWN, Circuit Judges.

      Patrick Jones appeals his convictions arising out of his sexual exploitation of



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Karen Nelson Moore, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
a fourteen-year-old child. See 18 U.S.C. §§ 2251(a), 1591. We affirm in part and

reverse in part.

      Jones argues that our decision in United States v. U.S. District Court (Kantor

II), 858 F.2d 534 (9th Cir. 1988), which explicated § 2251(a), does not dictate the

answer to his claim that the section must require that recklessness be proved as a

part of the government’s case. However, that decision is controlling on Jones’s

statutory construction and constitutional claims. Id. at 537–44. While Jones

attacks our decision in that case, we are bound by the decision 1 because no

subsequent Supreme Court case has undermined Kantor II’s explicit and implicit

statutory and constitutional determinations.2 The district court did not err when it

followed Kantor II.

      Jones also argues that his conviction pursuant to 18 U.S.C. § 1591 must be

reversed because the jury was instructed on the statutory requirements as that

statute existed at the time of trial, rather than those that existed when he committed

his offense. He asserts, and the government agrees, that the ex post facto clause3

was, therefore, violated. Thus, we will reverse that conviction and remand for


      1
          See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
      2
          See id. at 900.
      3
          U.S. Const. art. I, § 9, cl. 3.

                                            2
further proceedings.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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