IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-20719

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRES FERNANDO GARCIA-LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

November 20, 2000

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Andres Fernando Garcia-Lopez appeals from his conviction and sentence for knowing travel

in foreign commerce by a permanent resident alien for the purpose of engaging in a sexual act with

a juvenile in violation of 18 U.S.C. § 2423(b). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Andres Fernando Garcia-Lopez (“Garcia-Lopez”), was convicted of traveling in

foreign commer ce fo r the purpose of engaging in a sexual act with a juvenile under 18 U.S.C. §1 18 U.S.C. § 2423(b) provides:

A person who travels in interstate commerce, or conspires to do so, or a Uni ted

States citizen or an alien admitted for permanent residence in the United States who

travels in foreign commerce, or conspires to do so, for the purpose of engaging in any

sexual act (as defined in section 2246) with a person under 18 years of age that would

be in violation of chapter 109A if the sexual act occurred in the special marit ime and

territorial jurisdiction of the United States shall be fined under this title, imprisoned

not more than 15 years, or both.

2 2423(b). 1 In May 1998, Garcia-Lopez moved in with Dyanira Barragan (“Barragan”) and her three

children. In mid-August, Garcia-Lopez took LB, Barragan’s 13-year-old daughter, to Monterrey,

Mexico. He had obtained false identification for her use during the trip. At trial, LB testified that

Garcia-Lopez raped her twice while they were in Mexico. Eventually, LB’s grandmother and sister

went to Mexico and took LB home to Houston.

Garcia-Lopez requested that the district court instruct the jury that illicit sex must have

been one of his dominant purpo ses for foreign travel. Specifically, he requested the following

instruction:

In order to sustain its burden of proof under Count One of the Indictment, the

government must prove beyond a reasonable doubt that the defendant formed the

intent to engage in illegal sexual activity before he traveled in foreign commerce.

It is not necessary for the government to prove that illegal sexual activity was

the sole purpose for the foreign travel. A person may have several different purposes

or motives for such travel and each may prompt, in varying degrees, the act of making

the journey.

The government must prove beyond a reasonable doubt, however, that a

s ignificant or dominant purpose of the travel from the United States to another

country was to engage in illegal sexual activity.

The district court refused to give the instruction urged by Garcia-Lopez. Instead, the court instructed

the jury that the “Government [did] not need to prove that [Garcia-Lopez’s] onl y purpose for

traveling in foreign commerce was to engage in a sexual act with a minor,” but that it was “enough2 The current version of § 2423(b) provides for a maximum sentence of 15 years of imprisonment.

18 U.S.C. § 2423(b) (1999). At the time of the offense in t his case, the statute provided for a

maximum of 10 years of imprisonment. See 18 U.S.C. § 2423(b) (1998).

3 if one of the defendant’s motives in traveling in foreign commerce was to engage in a sexual act with

a minor.”

Garcia-Lopez was sentenced to the statutory maximum of 120 months of imprisonment under

18 U.S.C. § 2423(b). 2 The court applied U.S.S.G. § 2A3.1, which, based on LB’s testimony that

Gar cia-Lo pez raped her, allowed criminal sexual abuse to be used in determining a higher base

of fense level. Garcia-Lopez argued, however, that U.S.S.G. § 2A3.2 was the appropriate section

because he was neither charged nor conv ict ed o f raping LB and LB’s testimony was not credible.

Garcia-Lopez now appeals his conviction and sentence.

DISCUSSION

I. Jury Instructions

This Court reviews a district court’s refusal to provide a requested jury instruction for abuse

of discretion. U nited States v. Richards

, 204 F.3d 177, 204 (5th Cir. 2000). We will reverse the

district court’s refusal “only if the requested instruction (1) was a substantially correct statement of

the law, (2) was not substantially covered in the charge as a whole, and (3) concerned an important

point in the trial such that the failure to instruct the jury on the issue seriously impaired the

defendant’s ability to present a given defense.” Id.

Garcia-Lopez argues that the district court committed reversible error by refusing to give the

requested jury instruction concerning the requisite intent for a § 2423(b) conviction. He contends

that the Government had the burden of pro ving beyond a reasonable doubt that: 1) one of his

dominant motives for traveling in foreign commerce was to engage in illicit sex with a minor; 2) his3 The statutory antecedents of § 2423(b) date back to the M ann Act, enacted in 1910. U nited

States v. Vang

, 128 F.3d 1065, 1069 (7th Cir. 1997). Section 2423 evolved from the same legislative

initiative as the Mann Act, and both are a components of the same general legislative framework. I d.

Thus, early cases interpreting the original Mann Act are authoritative in construing § 2423(b). See

id.

4 proffered instruction correctly stated the law; 3) the instruction given to the jury “watered down” the

Government’s burden; and 4) his defense was seriously impaired.

Garcia-Lopez relies on Mortensen v. United States

, 322 U.S. 369, 64 S. Ct. 1037, 88 L. Ed.

1331(1944), and United States v. Campbell

, 49 F.3d 1079 (5th Cir. 1995), to support his contention

that the district court should have instructed the jury that one of his dominant motives for going to

Mexico was to engage in sex with a minor. However, both of these cases demonstrate that the

requested instruction was not a substantially correct statement of the law and that the district court

substantially covered the requisite intent that the Government was required to prove.

In Mortensen

, the Court reversed the convic t ions of two persons who had been convicted

under the Mann Act 3 for transporting girls across state lines for prostitution. 322 U.S. at 377. T he

petitioners, who operated a house of prostitution, took two of their employees, who were prosti tutes,

on a vacation. I d. at 372. Although the Cou rt no t ed t hat the “dominant motive” of illicit acts in

interstate travel must be immoral, it found tha t t he “sole purpose” of the petitioners’ trip was

“innocent recreation.” I d. at 374-75. The Court also found that there was no evidence from which

the jury could have inferred beyond a reasonable doubt that the petitioners transported the girls for

the purpose of prosti tuti on or debauchery within the meaning of the statute. Id. at 374.

In Campbell

, this Co urt narro wly interpreted the phrase “dominant motive” used by the

Supreme Court in Mortensen

. 49 F.3d at 1082-83. The court stated that the relevant inquiry for4 Garcia-Lopez was sentenced on July 22, 1999, before t he effective date of the current

amendments to the Sentencing Guidelines. Reference herein to the Sentencing Guidelines are to the

provisions in effect at the time Garcia-Lopez was sentenced.

5 determining whether a dominant purpose existed is “whether the illicit behavi o r is ‘one of the

efficient and compelling purposes’ of the travel.” I d. at 1083 (quoting Forrest v. United States

, 363

F.2d 348, 349 (5th Cir. 1966)). Moreover, this Court found that “many purposes for traveling may

exist, but, as long as one motivating purpose is to engage in prostitution, criminal liabilit y may be

imposed under the Act” and, if there is no dominant purpose, “it is because any such purpose was

either non-existent or ‘incidental.’” Id. at 1083. Thus, “dominant motive” is equated with

“motivating purpose, ” and if a particular purpose is not motivating, then it is merely non-existent or

incidental.

A ccordingly, the dominant purpose instruction proposed by Garcia-Lopez was not a

substantially correct statement of the law. Also, the district court’s instruction that it was sufficient

for the Government to prove that one of G arcia-Lo pez’s motives in traveling was to engage in a

sexual act with a minor substantially covered the requisite intent that the Government was required

to pr o ve. Mo reover, the instructions given by the district court did not seriously impair GarciaLopez’s ability to present a defense. He was able to present the defense that he took LB to Mexico

to help her escape her family’s abuse. Thus, the district court did not abuse its discretion in refusing

the requested instruction.

II. Sentencing

Garcia-Lopez argues that the district court should have sentenced him under the guideline

for sex with a minor rather than the guideline for criminal sexual abuse. 4 He contends that the district

court erred in applying U.S.S.G. § 2A3.1, through the cross-reference under § 2A3.2(c)(1), in6

determining the proper base offense level for the count of conviction. He reasons that the guideline

for forcible rape was improper because he was not convicted of forcible rape and because any alleged

rape occurred in a foreign country. He also claims that the district court’s findings regarding LB’s

credibility are unsupported by the evidence.

We review the district court’s interpre t at io n of the Sentencing Guidelines de novo and its

factual findings for clear error. United States v. Huerta , 182 F.3d 361, 364 (5th Cir. 1999).

U.S.S.G. § 2A3.2(a) uses a base offense level of 15 for criminal sexual abuse with a minor

or attempt to commit such abuse. Section 2A3.2(c)(1) cross references § 2A3.1, which uses a base

offense le vel of 27 for criminal sexual abuse or attempt to commit such abuse. Specifically,

2A3.2(c)(1) provides that “[i]f the offense involved criminal sexual abuse or attempt to commit

criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply § 2A3.1 (Criminal Sexual

Abuse; Attempt to Commit Criminal Sexual Abuse).”

We find no error in the district court’s application of the cross reference under § 2A.32(c)(1).

Garcia-Lo pez has not pointed to any case holding that a conviction of forcible rape and t he

commission of such rape within the United States are requisites for the application of the cross

reference. Also, he has failed to show that the district court erred in its credibility determinations with

respect to LB’s testimony.

CONCLUSION

For the foregoing reasons, we AFFIRM Garcia-Lopez’s conviction and sentence.

AFFIRMED.