*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50520

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS DION MATTHEWS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

(W-95-CR-20)

_________________________________________________________________

July 15, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Carlos Dion Matthews appeals his jury convictions for

aggravated sexual abuse and kidnaping in violation of 18 U.S.C. §§

1201(a)(2), 2241(a)(1) and 2246. Matthews raises two arguments on

appeal. He first argues that the district court committed

reversible error by failing to instruct the jury that the lack of

a victim's consent is an essential element to the crime of
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aggravated sexual abuse. Second, Matthews claims that there is

insufficient evidence to prove that the acts occurred at Fort Hood,

Texas, a location subject to the special maritime and territorial

jurisdiction of the United States. We affirm the convictions.

I

At trial, two government witnesses testified that they were

the victims of Matthews's sexual attacks. One witness, a fifteenyear-old female, testified that she met Matthews one night at a

dance club and agreed to drive with him to a store. Instead,

Matthews drove her to a secluded country road, parked the car and,

following a struggle, raped her. Matthews then drove the victim

back to the dance club and released her at about 4:00 a.m. Early

that morning, the victim directed local police and military

officers to the site of her attack. Both groups of investigators

agreed that the attack site was within the boundaries of Fort Hood

and testified accordingly at trial. 

The government's second witness testified that she met

Matthews at a dance club and that, on the pretext of driving to a

restaurant, he drove her to a field. Matthews parked the car on a

dirt road and began making sexual advances toward the witness. She

testified that a struggle ensued, and she managed to escape. The

next day, she directed a Fort Hood criminal investigator to the

attack site. The investigator testified at trial that the location
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was within Fort Hood's boundaries.

A jury convicted Matthews of one count of aggravated sexual

abuse and two counts of kidnapping on a federal reservation. He

was sentenced to 210 months of imprisonment, which is to be

followed by five years of supervised release.

II

Matthews argues that the district court erred by not

instructing the jury that the victim's lack of consent was an

essential element to proving the crime of aggravated sexual abuse.

The record indicates, however, that defense counsel expressly

stated at trial that he had no objections to the proposed jury

charge. In the light of Matthews's failure to object, this issue

is subject to the plain error standard of review. FED. R. CRIM. P.

52(b). 

In reviewing for plain error, an appellate court has

discretion to correct unobjected-to errors only when the appellant

has shown that there is an error, the error is "clear" or "obvious"

and it affects substantial rights. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v.

Olano, 507 U.S. 725, 731-37 (1993)), cert. denied, 115 S.Ct. 1266

(1995). Based on our review of the record and our reliance on

persuasive precedent, we hold that Matthews has failed to show any

error regarding the district court's failure to instruct the jury
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on a victim's lack of consent in connection with the sexual abuse

charges against Matthews.

In reaching our conclusion, we adopt the reasoning of the

Ninth Circuit in United States v. Rivera, 43 F.3d 1291, 1297-98

(9th Cir. 1995). In that case, the Ninth Circuit held that a

district court's jury charge fairly and adequately covered the

issues presented at trial notwithstanding the court's refusal to

instruct the jury that consent was a defense to the crime of

aggravated sexual abuse under 18 U.S.C. § 2241(a). The Ninth

Circuit noted that the legislative history of the sexual abuse

statute "reveals that `[l]ack of consent by the victim is not an

element of the offense, and the prosecution need not introduce

evidence of lack of consent or of victim resistance.'" Rivera, 43

F.3d at 1298 (quoting H.REP.NO. 594, 99th Cong., 2d Sess. 14,

reprinted in 1986 U.S.C.C.A.N. 6186, 6194).

In this case, the district court's instruction fairly and

adequately tracked the language of section 2241(a)(1), which does

not include lack of consent as an element of the offense. Id.; 18

U.S.C. § 2241(a)(1) (West Supp. 1996). Matthews, who failed to

object to the district court's proposed jury instructions when he

was given the opportunity, has no ground for now claiming

reversible error.

III
 

1This court has questioned whether the "miscarriage of

justice" standard is distinguishable from the "sufficiency of

evidence" standard employed if a defendant does make a motion for

acquittal at the conclusion of the trial. See United States v.

Pennington, 20 F.3d 593, 597 n.2 (5th Cir. 1994). However, because

only the court sitting en banc can reverse precedent, Matthews's

insufficiency claim must be reviewed under the "miscarriage of

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Matthews also argues that there was insufficient evidence to

prove that the offenses occurred within the territorial boundaries

of Fort Hood. Without citing authority to support his position,

Matthews argues that the government failed to prove its case (and

that the federal district court therefore lacked jurisdiction)

because surveys and original land grants were not used to establish

the location of the offenses. 

Matthews moved for a judgment of acquittal after the

government rested its case in chief but failed to renew his motion

at the close of all the evidence. In this procedural posture, we

can review his challenge to the sufficiency of the evidence only to

determine whether there was a manifest miscarriage of justice.

United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert.

denied, 500 U.S. 926 (1991). "Such a miscarriage would exist only

if the record is devoid of evidence pointing to guilt, or . . .

because the evidence on a key element of the offense was so tenuous

that a conviction would be shocking." United States v. Pierre, 958

F.2d 1304, 1310 (5th Cir.) (en banc) (internal quotations and

citations omitted), cert. denied, 506 U.S. 898 (1992).1
justice" standard. See United States v. Laury, 49 F.3d 145, 151 &

n.15 (5th Cir.), cert. denied, 116 S.Ct. 162 (1995).

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Both victims and three investigating officers (one from the

local police and two from the military) testified regarding the

locations of the offenses. Each officer testified that the

offenses occurred within the boundaries of Fort Hood. In addition,

a senior civil engineer and registered land surveyor for the Fort

Hood Engineering Branch testified that the locations indicated by

the victims as the attack sites were within Fort Hood's boundaries.

In sum, this record is replete with--rather than devoid of--

evidence that the offenses occurred on Fort Hood. 

Accordingly, Matthews's claims are denied and his convictions

are 

A F F I R M E D.