UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10072 Plaintiff-Appellee, D.C. No. v. 1:19-cr-00012-1 MICHAEL LOUIS MCCARRON, Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding

Argued and Submitted January 19, 2022 Honolulu, Hawaii

Filed April 18, 2022

Before: Diarmuid F. O’Scannlain, Eric D. Miller, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge O’Scannlain 2 UNITED STATES V. MCCARRON

SUMMARY *

Criminal Law

The panel affirmed the district court’s judgment in a case in which the defendant contended that the Government failed to offer sufficient evidence to support his conviction for attempted enticement of a minor in violation of 18 U.S.C. § 2422(b).

Addressing the attempt element of a violation of § 2422(b), the panel addressed the threshold question of whether the defendant’s conduct advanced “the criminal purpose charged.” The panel emphasized that the defendant was not charged with attempting to engage in sexual activity with a minor; rather, the “criminal purpose charged” under § 2422(b) was the “attempt to achieve the mental act of assent.” The panel explained that the defendant’s multiple proposed lurid rendezvous, even if purely hypothetical, suffice as evidence of a substantial step in his attempt to cause a minor’s assent to unlawful sexual activity. The panel thus rejected the defendant’s suggestion that the defendant’s travel must bear on the analysis, noting that this court has not held, or even hinted, that physical proximity or travel is necessary to constitute a substantial step under § 2422(b).

Addressing the second element, the panel held that a rational juror could readily conclude that the facts of this case, viewed in the light most favorable to the Government, demonstrate that the defendant attempted to persuade,

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MCCARRON 3 induce, entice, or coerce a minor’s assent to unlawful sexual activity.

As to the third element, the panel noted that an actual minor victim is not required for an attempt conviction under § 2422(b), and that the defendant is therefore misguided to the extent he ascribes any significance to the fact that the person with whom he communicated was not actually a person under 18 years of age.

As to the fourth element (“to engage in sexual activity that would constitute a criminal offense”), the panel wrote that the defendant properly conceded that United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), rejected his argument that the Guam statute mentioned in the indictment does not apply to conduct on a military base because it was “not . . . assimilated into federal law under the Assimilative Crimes Act.”

The panel addressed other arguments concerning the conviction and sentence in a concurrently filed memorandum disposition.

COUNSEL Kathryn A. Young (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant. Garth R. Backe (argued), Assistant United States Attorney; United States Attorney’s Office, Saipan, Commonwealth of the Northern Mariana Islands; Stephen F. Leon Guerrero, Assistant United States Attorney; Shawn N. Anderson, 4 UNITED STATES V. MCCARRON United States Attorney; United States Attorney’s Office, Hagatna, Guam; for Plaintiff-Appellee.