NOT PRECEDENTIAL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 December 13, 2019

Before: SMITH Chief Judge, McKEE, 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 does not constitute binding precedent. 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.

(a). Osvaldo Tavarez admits he transported his thirteen-year-old daughter

within St. Thomas and raped her, yet he claims that applying the Mann Act to his conduct

violates the Commerce Clause and the Equal Protection Clause. But those arguments fail,

so we 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 or 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.,

(3d

Cir. 2003). That renders the Commerce Clause irrelevant. See also United States v.

Beach,

(1945) (relying on Congress’s police power to apply the Mann

Act to intra–District of Columbia conduct); Crespo v. United States,

(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,

, 570

2 Because Tavarez presented this argument to the District Court, our review is de novo. United States v. Gonzalez,

(3d Cir. 2018). 2 (2012) (holding courts may uphold a federal statute if the statute 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 differentiates 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

on alienage or national origin (since 75% of Virgin Islanders are Afro-Caribbean).

Neither dog hunts. Under Harris v. Rosario,

(1980), rational

basis review governs laws treating territories differently than states. And here, a

legitimate 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. Ríos-Rivera,

(1st

Cir.) (rejecting the same equal protection argument from a Puerto Rican defendant), cert.

denied,

(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,

(1980).

* * *

For these reasons, we will affirm Tavarez’s conviction.

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