Appellant Nicholas Bredimus (“Bredi-mus”) conditionally pled guilty, expressly reserving his right to appeal, to the charge of knowingly and willfully traveling in foreign commerce for the purpose of engaging in a sexual act with a person under 18 years of age in violation of 18 U.S.C. § 2423(b). On appeal, he challenges the sufficiency of the factual basis for the guilty plea, arguing that the statute of conviction is an invalid exercise of Congressional authority under the Commerce Clause and it unconstitutionally punishes mere preparation, mere thought, and mere travel. He also cоntends that the district court lacked jurisdiction to adjudicate the charge on the grounds that the offense lacked a domestic effect as required by the statute of conviction. For the following reasons, we affirm the judgment of the district court.
*202 I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute. In October 2001, Bredimus, a United States citizen, left his residence in Coppell, Texas to travel to Thailand after first stopping in Hong Kong and Tokyo. In addition to attending scheduled business meetings, while in Thailand Bredimus intended to make videotapes and digital images of Thai children engaged in sexually explicit сonduct.
Upon arriving in Thailand, Bredimus contacted Pensri Suhongsa (“Suhongsa”), and hired her to accompany him to Chiang Rai Province as a procurer and interpreter. On November 3, 2001, Bredimus and Suhongsa traveled to Mai Sao in the Chiang Rai Province of Northern Thailand and obtained two rooms at the Srisamoot Hotel. Bredimus asked Suhongsa to find young boys or girls who would come to the hotel for him to photograph. That same day, Bredimus videotaped himself engaged in sexually explicit conduct with a thirteen-year-old Thai boy at the Srisamoot Hotel, and took digital images of the boy engaged in sexually explicit conduct.
Bredimus was indicted on March 5, 2002, in a six count indictment. 1 On June 4, 2002, a federal grand jury returned a superseding indictment charging Bredimus with one count of knowingly traveling in foreign commerce for the purpose of engaging in a sexual act with children under 18 years of age in violation of section 2423(b) 2 and one count of traveling in foreign commerce with the intent to promote sexually explicit conduct by minors for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. §§ 2251 A(b)(2)(A) and (c)(1). 3
On May 3, 2002, Bredimus moved to dismiss the indictment, asserting an аs-applied challenge that (1) Congress exceeded its authority under the Commerce Clause, U.S. CONST, art. I, § 8, cl. 3, by enacting the two statutes under which he was charged, and (2) the district court lacked subject matter jurisdiction over an extraterritorial offense that has no effect *203 within the United States. On July 19, 2002, the district court denied the appellant’s Motion to Dismiss, finding inter alia, that Section 2423(b) does not exceed Congress’s authority under the Commerce Clause because Congress has the authority to keep the channels of foreign commerce free from immoral or injurious uses and that banning forеign travel for an illicit purpose does not impermissibly burden a person’s fundamental right to travel. The court also ruled that it had jurisdiction under Section 2423(b) on the grounds that the statute targets an activity that occurs within the United States because the foreign travel originates domestically.
Bredimus entered into a conditional plea agreement with the government on August 27, 2002. Bredimus pled guilty to Count Two of the original indictment, but specifically reserved his right to challenge the constitutionality of Section 2423(b) on appeal. 4 At the arraignment hearing, Bredi-mus moved the court to reconsidеr this motion to dismiss, which the district court denied. 5
On November 18, 2002, the district court sentenced Bredimus to 66 months in the Bureau of Prisons, a fine of $30,000.00, and conditioned supervised release for three years. All remaining counts in the original and superseding indictment were dismissed. Bredimus timely filed a notice of appeal.
II. STANDARDS OF REVIEW
This court reviews a constitutional challenge to a federal statute
de novo. United States v. Delgado-Nunez,
Challenges to a district court’s jurisdiction are reviewed
de novo. United States v. Sims Bros. Const., Inc.,
A trial court cannot accept a plea of guilty unless there is a sufficient factual basis for the plea.
See
Fed.R.Crim.P. 11(f);
United States v. Johnson,
III. DISCUSSION
A. The Constitutionality of Section 2123(b)
Under Section 2423(b), “[a] ... United States Citizen ... who travels in fоreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined [and/or] imprisoned....” 18 U.S.C. § 2423(b). Bredimus argues that the statute of conviction, as applied,
6
constitutes Congress exercising a general police power in violation of
United States v. Lopez,
1. First Principles
Because Bredimus brings a challenge under
Lopez
and
Morrison,
we begin our analysis by briefly elucidating the “first principles” of commerce clause jurisprudence.
United States v. Ho,
The Constitution, however, expressly granted Congress the power “to regulate Commerce with foreign Nations, and among the several States ...” Art. I, § 8, cl. 3. Since 1937,
8
the scales of the federal courts’ Commerce Clause jurisprudence tipped more towards according to Con
*205
gress “considerably greater latitude in regulating conduct [including federal criminal statutes].”
See Morrison,
2. The Commerce Clause
Our consideration of Bredimus’s assertion that Congress exceeded the “outer limits” of the Commerce Clause must begin with
Lopez.
In
Lopez,
the plaintiff brought a challenge to the constitutionality of the Gun-Free School Zones Act of 1990, § 922(q)(2)(a), which made it a federal crime to have a gun within 1,000 feet of a school. The
Lopez
Court summarized three broad categories of activity that Congress may properly regulate under its commerce power: (1) “the use of the channels of interstate commerce,” (2) “the in-strumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) “activities having a substantial relation to interstate commerce, i.e., activities that ‘substantially affect’ interstate commerce.”
Lopez,
Although this court has not addressed the constitutionality of Section 2423(b) under the Commerce Clause, other circuit courts have. In
United States v. Han,
Bredimus argues, in the alternative, that even assuming that Section 2423(b) generally presents a “channels of commerce” issue, a substantial affect analysis may still be appropriate. Essentially, Bredimus argues that the
Lopez
categories should be viewed as fluid rather than “hermetically sealed constructs designed solely for rigid application.”
United States v. Schaffner,
This court notes that other circuits have found statutes similar to Section 2423(b)'— 18 U.S.C. § 2262(a) and 18 U.S.C. § 2261 — to be valid exercises of Congress’s Commerce Clause authority. For example, courts have rejected Commerce Clause challenges to the Violence Against Women Act of 1994, § 2262(a)(1), which criminalizes crossing a state line with the intent to violate a protection order and then violating it, because that statute criminalizes only “those violations of protection orders that involve the use of interstate commerce.”
Han,
Similarly, courts have upheld, under the Commerce Clause, the constitutionality of 18 U.S.C. § 2261, which provides: “A person who travels across a State line ... with the intent to injure, harass, or intimidate that person’s spouse or intimate partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence and thereby causes bodily injury to such spouse or intimate partner, shall be punished.... ”
Han,
In upholding the constitutionality of Sections 2262(a)(1) and 2261, the previously mentioned cases generally refer to Congress’s ability to regulate morality under the Commerce Clause. In
Caminetti v. United States,
the Court held that the Mann Act, which prohibits the transportation of women in commerce for immoral purposes, was a valid exercise of Congress’s commerce power.
We have said that the liberty protected by the Constitution embraces the right to be free in the enjoyment of one’s faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood of avocation. ... But surely it will not be said to be part of аny one’s liberty ... to enter into commerce ... an element that will be confessedly injurious to the public morals.
Lottery Case,
We acknowledge that unlike Section 2423(b), which criminalizes crossing state (or international) lines with a criminal intent, without requiring the commitment of any further criminal act, the aforementioned statutes, Sections 2262(a)(1) and 2261, require both crossing borders with criminal intent and the commission of an unlawful act thereafter. However, we do not find that distinction dispositive here. Courts have also upheld a murder-for-hire statute, 18 U.S.C. § 1958, which, like Section 2423(b), does not require the commission of a further act. Section 1958 requires only that the government prove the defendant traveled in interstate or foreign commerce with the intent that a murder be committed for hire.
United States v. Delpit,
We find no reason to disagree with the aforementioned precedent as applied here. Quite the contrary, we find the deference accorded to Congress under Section 2423(b) even more compelling when, as here, the commerce at issue is foreign, as
*208
opposed to interstate. The Supreme Court has long held that Congress’s authority to regulate foreign commerce is even broader than its authority to regulate interstate commerce.
Japan Line, Ltd. v. Los Angeles County,
After examining the reasoning and holdings of other cases upholding the constitutionality of Section 2423(b) and similar statutes, the defendant’s Commerce Clause challenge should fail.
3. Mere Preparation for an Offense, Mere Thought, or Mere Travel
Bredimus argues that he cannot constitutionally be charged under Section 2423(b) for doing nothing more than traveling to another country with the intent prohibited by that section. He claims that because the statute does not require proof of any additional acts by the defendant, it fails to establish a connection between the defendant’s travel and his intent, and therefore punishes “mere thought,” “mere travel,” and “mere preparation,” in violation of his rights under the First, Fifth, and Eight Amendments. We disagree.
In
United States v. Gamache,
Consistent with our fellow circuits, therefore, we find that Section 2423(b) does not prohibit mere thought or mere preparation because it requires as an element that the offender actually travel in foreign commerce. As in
Gamache
and
Han,
the substantive criminal act at issue here is not, as Bredimus claims, a sexual act with a juvenile.
See Gamache,
We also address Bredimus’s contention that
Gamache
and
Han
should be distinguished from his case. Bredimus contends that in
Gamache
and
Han
the courts relied heavily on evidence that the defendants before them had actually engaged in acts beyond mere thought. The defendant in
Gamache
engaged in extensive correspondence that eventually led to his trip, purchased supplies, and transported the supplies in his vehicle.
Gamache,
Under the circumstances presented in this case, however, we find that evidence of preparatory acts are not required. The need for evidence of preparatory acts is obviated by Bredimus’s guilty plea, in which he admits to having formed the intent to engage in illicit sexual acts with a
minor prior
to traveling in foreign commerce. Admittedly, had Bredimus not pleaded guilty, the lack of preparatory acts would have increased the government’s difficulty in proving beyond a reasonable doubt that he hаd the requisite intent at the time he traveled. Difficulty
of
proof, however, “is not a valid criteria for determining the constitutionality of the present statute.”
Gamache,
Bredimus also claims that the right to travel cannot be criminalized merely because the travel is undertaken simultaneously with a defendant intending to commit an offense. He contends that Section 2423(b) is unconstitutional because it imposes a burden on exercising the right to travel by a citizen whose right to travel has not been qualified in any way, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments. We are not persuaded. We agree that the right to travel is a fundamental right
12
and
*210
that a government infringement on that right will be subject to strict scrutiny.
See Shapiro v. Thompson,
The statute of conviction, therefore, is not unconstitutional as applied to Bredi-mus. Section 2423(b) only prohibits actual travel with an illicit intent, not just the travel itself. For the aforementioned reasons, we find this statute constitutional because it punishes more than mere thought, mere trаvel, or mere preparation for a crime.
B. Jurisdiction of the District Court
Bredimus submits that the district court lacked jurisdiction to punish him for his extraterritorial actions because those actions lacked a domestic effect. In support of this contention, he relies on
Strassheim v. Daily,
in which a defendant was punished for his extraterritorial acts based on the court’s holding that prohibited conduct occurring in one state could be punished in another.
C. Sufficiency of the Factual Basis
Bredimus claims that, based on his previous arguments, the factual basis for his plea is insufficient. He contends that if Section 2423(b) is unсonstitutional because Congress lacked the authority to enact it under the Commerce Clause, or the district court lacked jurisdiction because the offense had no domestic effect, then a sufficient factual basis for his guilty plea was lacking as a matter of law. Because those claims were previously addressed and dismissed, we find no merit in, and thus, we *211 decline to address, the appellant’s challenge to the sufficiency of the factual basis.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Bredimus’s conviction and sentence in all respects.
AFFIRMED.
Notes
. The original six count indictment of the appellant returned by a federal grand jury included three counts of traveling in foreign commerce with intent to engage in a sexual act with a thirteen-year-old Thai boy in violation of 18 U.S.C. § 2423(b) (Counts One to Three), one count of traveling in foreign commerce with intent to promote child pornography in violation of 18 U.S.C. § 2251A (Count Four), one count of knowingly and willfully using false documents with the knowledge that such documents contained fraudulent statements in violation of 18 U.S.C. § 1001 (Count Five), and one count of knowingly and willfully making false statements to procure a passport with the intent to induсe the issuance thereof under the authority of the United States in violation of 18 U.S.C. § 1542 (Count Six).
. Pursuant to Section 2423(b), ''[A] United States citizen ... who travels in foreign commerce ... 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” is guilty of an offense punishable by fine and/or not more than 15 years imprisonment. 18 U.S.C. § 2423(b).
.Pursuant to Section 2251A(b)(2)(A) and (c)(1), ''[wjhoever ... obtains custody or control of a minor ... with the intent to рromote ... the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and "in the course of [such conduct] the minor or the actor traveled in or was transported in interstate or foreign commerce” is guilty of an offense punishable by fine and/or not less than 20 years imprisonment or for life. See 18 U.S.C. § 225l(A)(b)(2)(A) and (c)(1). For ease of reference, the court will refer to sections 2251A(b)(2)(A) and (c)(1) in this opinion simply as § 2251A.
. Bredimus expressly limited his right to appeal only: (1) any punishment imposed in excess of a statutory maximum; (2) any punishmеnt to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court; (3) arithmetic errors in the guidelines calculations; (4) any appeal right reserved to the defendant under prevailing Fifth Circuit authority; and (5) any appeal based on the defendant's assertion that Section 2423(b) is unconstitutional.
. Bredimus's motion to reconsider the motion to dismiss included the arguments that: (1) Section 2423(b) violates his rights under the First Amendment by seeking to regulate mere thought; and (2) Section 2423(b) violates the Privileges and Immunities Clause by imper-missibly restricting Bredimus' right to travel. U.S. CONST., amend. I., art. IV, § 2, cl. 1, and amend. XIV, § 1.
. We limit the scope of our review to consideration of the as-applied challenge to Section 2423(b) asserted by Bredimus. He did not raise, and thus we do not address, whether the aforementioned statute would pass muster under a facial Commerce Clause challenge.
. In a previous decision, this court has discussed a more thorough and exhaustive recitation of the history of the Commerce Clause and the earlier landmark cases of
Lopez
and
Morrison
decisions relied upon by the appellant.
See Ho,
.Beginning in 1937, federal court jurisprudence broadly construed the scope of authority conferred upon Congress by the Commerce Clаuse.
See NLRB
v.
Jones & Laughlin Steel Corp.,
. Although the Court has taken steps recently to clarify Commerce Clause jurisprudence, it has emphasized that legal standards under the Commerce Clause “are not precise formulations, and in the nature of things they cannot be.”
Lopez,
. We note that where congressional regulation of foreign commerce is involved, not only is there the necessity that the nation speak with one voice, in matters potentially affecting international relations, but also there is not the counter veiling concern of a federal invasion of the general police рower of the states that is so extensive as to obliterate the distinction between national and local concerns and create a completely centralized government.
. We also acknowledge that the courts in both Gamache and Han noted that the issue raised in the case sub judice had not yet been decided:
It is unnecessary to decide here, and thus it is not held, that a mere thought of engaging in a sexual act with [a minor], where coupled with crossing a state line, constitutes a prohibited act, and thus, a violation of § 2423(b). Nor is it held that, if thus construed, § 2423(b) would pass constitutional muster. These questions can be considered when raised where the facts are so limited.
Han,
. We must distinguish between the right to travel genеrally versus the right to travel in foreign commerce. Although the freedom to travel in foreign commerce is a liberty interest recognized under the Fifth Amendment,
Kent v. Dulles,