United States v. Patrick Jones , 459 F. App'x 616 ( 2011 )

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NOT FOR PUBLICATION NOV 23 2011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.
3