                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 13 2011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. 11-30050

              Plaintiff - Appellee,              D.C. No. 9:10-cr-00020-DWM-1

  v.
                                                 MEMORANDUM *
JASON ALLEN SANDS,

              Defendant - Appellant.



                    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


        *
             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.
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.




                                          2                                    11-30050
