NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 19

- 1666

_____________ UNITED STATES OF AMERICA

v. OSVALDO TAVAREZ,

Appellant

_____________________ On Appeal from the District Court of the Virgin Islands District Court No. 3

- 18

- cr - 00027

- 001 District Judge: The Honorable Curtis V . Gomez

_____________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on

Dec ember 13 , 2019 Before: SMITH Chief Judge , McK EE , and SHWARTZ, Circuit Judges

(Filed: December 23, 2019 )

_____________________ OPINION *

_____________________

* This disposition is not an opinion of the full court and under I.O.P. 5.7 do es not constitute binding precedent.2

SMITH, Chief Circuit Judge. The Mann Act criminalizes transporting a minor “in any commonwealth, territory, or possession of the United States[] with intent” to engage in criminal sexual activity. 18 U.S.C. § 2423(a). Osvaldo Tavarez admits he transported his thirteen

- year - old daughter within St. Thomas and raped her , y et he claims that applying the Mann Act to his conduct violates the Commerce Clause and the Equal Protection Clause. But those arguments fail ,

s o w e will affirm.
* * *
First , Tavarez argues applying the Mann Act intraterritorially exceeds Congress’s Commerce Clause power. 2 But that’s a red herring. To be sure, the Mann Act relies on the Commerce Clause to criminalize transporting a minor “in interstate o r foreign commerce” for criminal sexual activity. § 2423(a). Yet Tavarez’s crime rests on another enumerated power: Congress’s general police power over federal territories. See U.S. Const. art. IV, § 3, cl. 2 ; Bluebeard’s Castle, Inc. v. Gov’t of V.I. , 32 1 F.3d 394, 397 ( 3 d Cir. 2003)

. That renders the Commerce Clause irrelevant. See also United States v. Beach , 324 U.S. 193, 195 (1945) ( relying on Congress’s police power to apply the Mann
Act to intra

– District of Columbia conduct ); Crespo v. United States , 151 F.2d 44, 45 (1st Cir. 1945) ( relying on Congress’s police power to apply the Mann Act to intra

– Puerto Rico conduct ). See generally Nat’l Fed’n of Indep. Bus. v. Sebelius , 567 U.S. 519, 570

2 Because Tavarez presented this argument to the District Court, our review is de novo. United States v. Gonzalez , 905 F.3d 165, 190 (3d Cir. 2018).3

(2012) (holding courts may uphold a federal statute if the st atute can be reasonably construed as an exercise of any enumerated power). Second , Tavarez claims applying the Mann Act to intraterritorial but not intrastate activity violates the Equal Protection Clause. In essence, he claims the Mann Act impermissibly d ifferentiates between territorial and state residents. And he argues strict scrutiny should apply, not only because he thinks the distinction impacts a fundamental right (freedom from physical restraint), but also because he thinks it discriminates based

o n alienage or national origin (since 75% of Virgin Islanders are Afro

- Caribbean). Neither dog hunts. Under Harris v. Rosario , 446 U.S. 651, 651

- 52 (1980), rational basis review governs laws treating territories differently than states. And here, a legitima te reason explains the differential treatment: Congress cabined “the Mann Act’s applicability within the fifty states because it implicitly recognized potential constitutional limits on its power.” United States v. R í os - Rivera , 913 F.3d 38, 44 (1st Cir.) (rejecting the same equal protection argument from a Puerto Rican defendant) , cert. denied , 139 S. Ct. 2647 (2019)

. To the extent Tavarez faults Congress for not expressing this justification, Congress need not “articulate its reasons for enacting a statute” to withstand rational basis scrutiny. U.S. R.R. Ret. Bd. v. Fritz , 449 U.S. 166, 179 (1980).
* * * For these reasons, we will affirm Tavarez’s conviction

.