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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 commerce for the purpose of engaging in a sexual act with a juvenile under 18 U.S.C. §

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
significant 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] only purpose for
traveling in foreign commerce was to engage in a sexual act with a minor," but that it was "enough
118 U.S.C. § 2423(b) provides:
A person who travels in interstate commerce, or conspires to do so, or a United
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 maritime and
territorial jurisdiction of the United States shall be fined under this title, imprisoned
not more than 15 years, or both.
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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
Garcia-Lo pez raped her, allowed criminal sexual abuse to be used in determining a higher base
offense level. Garcia-Lopez argued, however, that U.S.S.G. § 2A3.2 was the appropriate section
because he was neither charged nor convicted of 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. United 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 proving 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) his
2The 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 this case, the statute provided for a
maximum of 10 years of imprisonment. See 18 U.S.C. § 2423(b) (1998).
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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 convictions of two persons who had been convicted
under the Mann Act3 for transporting girls across state lines for prostitution. 322 U.S. at 377. The
petitioners, who operated a house of prostitution, took two of their employees, who were prostitutes,
on a vacation. Id. at 372. Although the Court noted that the "dominant motive" of illicit acts in
interstate travel must be immoral, it found that the "sole purpose" of the petitioners' trip was
"innocent recreation." Id. 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 prostitution or debauchery within the meaning of the statute. Id. at 374.
In Campbell, this Court 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 for
3The statutory antecedents of § 2423(b) date back to the Mann Act, enacted in 1910. United
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. Id.
Thus, early cases interpreting the original Mann Act are authoritative in construing § 2423(b). See
id.
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determining whether a dominant purpose existed is "whether the illicit behavior is `one of the
efficient and compelling purposes' of the travel." Id. 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 liability 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.
Accordingly, 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 Garcia-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 prove. Mo reover, the instructions given by the district court did not seriously impair Garcia-
Lopez'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), in
4Garcia-Lopez was sentenced on July 22, 1999, before the 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.
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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 interpretation 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 level 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 the
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.
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