                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        February 5, 2020

                                                                          Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                              No. 19-7007
 v.

 DONALD LEE BLACKBIRD,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Eastern District of Oklahoma
                         (D.C. No. 6:18-CR-00068-RAW-1)
                       _________________________________

J. Lance Hopkins, Tahlequah, Oklahoma, for the Appellant Donald Lee Blackbird.

Christopher J. Wilson, Assistant United States Attorney (Brian J. Kuester, United States
Attorney, and Linda A. Epperley, Assistant United States Attorney, on the brief), Office
of the United States Attorney for the Eastern District of Oklahoma, Muskogee,
Oklahoma, for the Appellee.
                         _________________________________

Before CARSON, BALDOCK, and EBEL, Circuit Judges.
                  _________________________________

CARSON, Circuit Judge.
                    _________________________________

      Defendant, Donald Lee Blackbird, attempted to sexually abuse his fifteen-

year-old granddaughter. He pleaded guilty to the offense, and the district court

sentenced him to sixty months’ imprisonment. At sentencing, the district court
applied a sentence enhancement, which increased his base offense level because “the

minor was in the custody, care, or supervisory control of the defendant” at the time of

the attempted sexual abuse. U.S. Sentencing Guidelines Manual § 2A3.2(b)(1)

(“U.S.S.G.”).

      Defendant appeals his sentence, arguing that the government presented no

evidence he had custody, care, or supervisory control of his granddaughter at the time

of the attempted abuse. Our jurisdiction arises under 28 U.S.C. § 1291. Because the

government failed to show that Defendant exercised “custody, care, or supervisory

control” over the victim, we vacate the sentence and remand for resentencing.

                                               I.

      Defendant’s now ex-wife, Carole Blackbird (“Carole”), lived in a house with

four of the couple’s minor grandchildren, including “S.B.,” the victim in this case.

Defendant, a convicted sex offender, lived in a nearby travel trailer because the

Oklahoma Department of Human Services had required that he move out of Carole’s

house before it placed their minor grandchildren there. Carole stated that even

though Defendant lived in the trailer, he often came to the house for meals and had

an “apparently normal grandfather relationship” with their grandchildren. Although

Defendant entered the house during the day, he slept in the trailer at night.

      One day, Carole and three of the grandchildren left the house for a short time,

with S.B. remaining home alone. As S.B. sat alone in the kitchen, Defendant came

into the house to get a drink of water, a bowl of ice cream, and to watch television.

Defendant entered the kitchen and began talking to S.B. about getting her driver’s

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license and first job. Defendant then touched her right buttock with his hand and told

her that she could “make $10” if she let him “bust her cherry” (referring to sexual

intercourse). S.B. told him to stop, and Defendant left the room. S.B. texted her

grandmother, asking her to come home. She told her grandmother about the

encounter, and Carole confronted Defendant. He admitted his actions but said he

regretted it and apologized.

      Defendant later pleaded guilty to attempted sexual abuse of a minor, in

violation of 18 U.S.C. §§ 1153, 2243(a), and 2246. In preparation for sentencing, the

United States Probation Office generated a Pre-Sentence Report (“PSR”). The PSR

provided a base offense level of eighteen, but also included a four-level enhancement

under U.S.S.G. § 2A3.2(b)(1). Section 2A3.2(b)(1) adds four levels to the base

offense level if “the minor was in the custody, care, or supervisory control of the

defendant” at the time of the attempted sexual abuse. Defendant objected to the

enhancement. The district court overruled the objection and applied the

enhancement, finding “by a preponderance of the evidence that the adjustment under

Sentencing Guideline Section 2A3.2(b)(1) is appropriate.” Defendant appealed.

      In reviewing sentencing issues, we review legal questions de novo. United

States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir. 1996). We review the district

court’s factual findings for clear error. United States v. Chasenah, 23 F.3d 337, 338

(10th Cir. 1994).




                                              3
                                                 II.


       On appeal, Defendant argues that the district court erred in applying the four-level

enhancement under U.S.S.G. § 2A3.2(b)(1) because the government presented no

evidence that S.B. was in Defendant’s custody, care, or supervisory control. We agree.

       Section 2A3.2 “is intended to have broad application and is to be applied

whenever the minor is entrusted to the defendant, whether temporarily or permanently.”

U.S.S.G. § 2A3.2 cmt. n.2(A). And in determining whether the enhancement applies, we

must analyze the “actual relationship” between the defendant and the victim. Id.

       The district court found that even though “the minor victim in this case was not

expressly left in the actual or temporary custody or care of the defendant,” she was in the

house “alone for periods of time while the defendant, a trusted and immediate member of

the family . . . freely and routinely entered the residence.” The district court further

found that the victim’s mother described the defendant as having a normal grandfather

relationship with S.B., but did not elaborate on that description. Based solely on these

facts, the district court applied the four-level enhancement. These facts, however, do not

show that Defendant had custody, care, or supervisory control of S.B. United States v.

Blue, 255 F.3d 609, 614 (8th Cir. 2001).

       Section 2A3.2(b)(1) requires that a defendant possess some degree of authority or

control over the victim, rather than just mere proximity or familial relation to the victim.

Id. (rejecting the district court’s reasoning that grandfatherly relationship and proximity


                                                  4
to the victim demonstrated custody or care of the victim).1 For example, the Sentencing

Commission cites “teachers, day care providers, [and] baby-sitters” as individuals “who

would be subject to this enhancement.” U.S.S.G. § 2A3.2 cmt. n.2(A). These individuals

are all “in a position of authority over the minor.” United States v. Brooks, 610 F.3d

1186, 1201 (9th Cir. 2010).

       Our precedent also supports the notion that the enhancement applies when the

defendant is in a position of authority over a minor. Thus, in Chasenah, we affirmed the

enhancement’s application where “the child was left in the custody of ‘all the adults’ in

the home, including defendant” and, importantly, because the child was “instructed to

obey anyone who ‘was older’” or “who was watching” her. 23 F.3d at 338 (emphasis

added).2 As Chasenah demonstrates, merely showing that Defendant is the victim’s

grandfather is not enough. The government also needed to show that Defendant had

some degree of authority over or responsibility for her. Brooks, 610 F.3d at 1201


       1
         In Blue, the Eighth Circuit also reasoned that despite the defendant’s
grandfatherly relationship with the victim, the evidence failed to show that “the
victim trusted” the defendant or that the defendant was “entrusted with custody of the
child.” Here, the government similarly failed to show that S.B. trusted Defendant or
that Carole entrusted S.B. to him.
       2
         We also note that in Chasenah, the victim was six years old. 23 F.3d at 338.
While age is not dispositive, we consider it a relevant factor in determining whether a
minor is in defendant’s custody, care, or supervisory control. At sentencing, the
district court discussed Chasenah and recognized it as distinguishable because six-
year-olds cannot stay home alone. Here, however, S.B. was fifteen at the time of the
offense, and the district court acknowledged that Carole did not expressly leave S.B.
in Defendant’s care or custody. Instead, Carole left S.B. home alone, with Defendant
entering the residence only after she had left with the other three grandchildren.
Unlike in Chasenah, the government presented no additional evidence, and the
district court did not otherwise find, that Defendant babysat or was otherwise
responsible for S.B. whenever Carole was out of the house.
                                                5
(holding that the “defendant must have held a position of parent-like authority that

existed apart from conduct giving rise to the crime”).

       In this case, the government admitted the opposite. When the district court asked

questions about the “actual relationship” between Defendant and S.B., counsel conceded

he had not presented “one iota of evidence that the defendant actually controlled any

aspect of the young lady’s life.” The government acknowledged “it was unaware of any

facts” showing that the defendant had authority over S.B.’s day-to-day functions. When

the district court asked whether Defendant could require S.B. to do something as menial

as “pick up [her] plate off the coffee table” or “go to bed” or “do [her] homework,” the

government even admitted it “was unaware of any facts” showing that Defendant

possessed such authority.

       In the end, we are left with a situation in which Defendant exploited an

opportunity when he found S.B. home alone. United States v. Carson, 539 F.3d 611, 612

(7th Cir. 2008) (distinguishing Blue because in that case “no one had entrusted the minor

to [defendant]; he simply took advantage of an opportunity when the mother could not

protect her child”). His opportunistic conduct, however, does not meet the threshold for

applying the four-level enhancement. Accordingly, because the government did not

demonstrate by a preponderance of the evidence that S.B. was in the “custody, care, or




                                                6
supervisory control of” Defendant at the time of the attempted sexual abuse, the district

court’s application of the enhancement constitutes clear error.

       We, therefore, VACATE the sentence and REMAND to the district court for

resentencing consistent with this opinion.




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