UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4824
GORDON E. THOMAS, III,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                Catherine C. Blake, District Judge.
                            (CR-03-150)

                      Submitted: March 17, 2004

                       Decided: April 12, 2004

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

James Wyda, Federal Public Defender, Gary W. Christopher, First
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Thomas M. DiBiagio, United States Attorney, Michael C. Han-
lon, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
2                      UNITED STATES v. THOMAS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Gordon E. Thomas, III, pled guilty to one count of sexual exploita-
tion of a minor, in violation of 18 U.S.C. § 2251(a) (2000), and was
sentenced to 120 months imprisonment, followed by three years of
supervised release. He appeals, claiming that his conduct—
videotaping the genitalia of a sleeping child—did not constitute "en-
gaging" in sexually explicit conduct within the meaning of the statute.

   Thomas’ conviction was based on a VHS-videotape discovered
during a search of Thomas’ apartment; the tape depicts a sleeping
nine-year-old girl—-the child of Thomas’ next door neighbor. The
camera zooms in on the child’s panties; shortly thereafter, Thomas’
hand is seen moving aside the crotch of the panties and the child’s
exposed genitals are filmed for approximately two minutes. The child
is apparently asleep throughout the entire incident.

   Section 2251(a) provides, in pertinent part, that "[a]ny person who
employs, uses, persuades, induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct for the purpose of produc-
ing any visual depiction of such conduct, shall be punished as pro-
vided under subsection (d)." We find that the facts as set forth above
satisfy the elements in the statute.

   Accordingly, we affirm Thomas’ conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                           AFFIRMED