                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-2935
                                      ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of South Dakota.
James Merle Blue, Sr.,               *
                                     *        [PUBLISHED]
           Defendant-Appellant.      *
                                ___________

                               Submitted: May 16, 2001
                                   Filed: July 18, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

      James Merle Blue, Sr. appeals his conviction and sentence for sexually abusing
a twenty-one-month-old child in Indian country in violation of 18 U.S.C. §§ 1153,
2241(c), and 2246(2)(B). For reversal, Blue argues that the evidence was insufficient
to support the jury's verdict finding him guilty; that the district court erred in applying
an enhancement for using force; and that the district court erred in applying an
enhancement based upon the victim's presence in his "care, custody or control at the
time of the offense." We affirm in part, but vacate the sentence in part and remand for
resentencing.


                                 I. BACKGROUND


      During the afternoon and evening of December 8, 1999, Blue and several friends
drank heavily at the home of Debbie and Arnold Walking Bull, who resided on the
Crow Creek Sioux Indian Reservation near Fort Thompson, South Dakota. In addition
to seven adults, three children were present that day. Later in the day, the mother of
the youngest child (who was then twenty-one months old) awoke from her stupor and
saw her child enter the bathroom. When the child did not return for several minutes,
the mother went to the bathroom door and pushed it open. She saw Blue standing in
front of her child. Blue's pants were unzipped, his belt was unbuckled, and his penis
was exposed.


      Tribal police arrested Blue on sexual abuse charges that evening. On December
10, 1999, two law enforcement officers, FBI Special Agent Ernst Weyand and Fort
Thompson Police Chief Carl Free, interviewed Blue in custody. The officers advised
Blue of his rights under Miranda prior to the interview. Blue initially told officers that
he had been zipping his pants up after urinating when the child's mother opened the
door. Blue claimed that the child had simply watched him urinate. One of the officers
pointed out several inconsistencies between Blue's account and the mother's statement.
Blue then confessed, admitting that he placed his penis in the child's mouth for ten
seconds. Blue provided an oral confession and signed a typed statement.



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      A grand jury subsequently indicted Blue on the charge of sexually abusing the
twenty-one-month-old child, a violation of 18 U.S.C. § 1153(a) (pertaining to crimes
by Indians against minors "within the Indian country"), 18 U.S.C. § 2241(c) (engaging
in a "sexual act" with a person less than twelve years of age), and 18 U.S.C. §
2246(2)(B) (defining contact between the mouth and the penis as a "sexual act"). Blue
pleaded not guilty and proceeded to trial. Blue never challenged his confession in a
pretrial motion to suppress and the confession was admitted at trial. Following a two-
day trial, a jury convicted Blue of sexually abusing the twenty-one-month-old child.
A few days after the verdict was entered, Blue moved for a judgment of acquittal. The
court later denied the motion without analysis.


      On June 27, 2000, a sentencing hearing was held before the district court. Blue
objected to the recommended four-level enhancement for the use of force in the
Presentence Investigation Report ("PSR"), contending there was no evidence to support
the use of force, and to the recommended two-level enhancement for custody, care or
supervisory control of the victim, arguing that no evidence was presented that the
victim saw or perceived him as his grandfather and, further, the victim's mother was
present at the residence during the evening and never relinquished custody of the child
to him.


      After rejecting these arguments, the district court determined Blue's final,
adjusted offense level to be 37, with a criminal history category of I, resulting in a
sentencing range of 210-262 months. Blue was sentenced to 210 months (17 years, 6
months) imprisonment and three years supervised release.



                                          -3-
      The issues presented on appeal are: (1) whether the district court erred in
denying his post-trial motion for a judgment of acquittal because the government's
evidence was insufficient to prove his guilt; (2) whether the district court erred in
applying a four-level sentence enhancement for using force; and (3) whether the district
court erred in applying a two-level enhancement based upon the victim's presence in
his "care, custody or control at the time of the offense."


                                  II. DISCUSSION


      We review the district court's application of the sentencing guidelines de novo
and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423, 425
(8th Cir. 2001).


                                           A.


      The first issue is whether the district court properly denied Blue's post-trial
motion for a judgment of acquittal. Blue argues that the government never proved that
he engaged in a sexual act with the child.


      The government's burden in a criminal case is to prove all elements of an offense
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). In considering
the sufficiency of the evidence on appeal, we view the evidence in the light most
favorable to the government, accepting all reasonable inferences that support the jury's
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). We must uphold the verdict
if there is substantial evidence that would allow any rational trier of fact to find the

                                          -4-
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Glasser, 315 U.S. at 80; United States v. Sandifer, 188 F.3d 992,
995 (8th Cir. 1999).


      A close reading of the record, which includes Blue's confession in which he
admitted placing his penis in the child's mouth, convinces us that the district court did
not err in finding that the government's evidence was sufficient to prove Blue's guilt and
in denying Blue's motion for a judgment of acquittal. Blue claims that the confession
is invalid, contending that the typewritten version does not match the oral statement he
gave and that it was not a product of his own free will. However, Blue failed to file a
pretrial motion to suppress his confession. A challenge to the admission of evidence,
such as a confession, must be made before trial. See Fed. R. Crim. P. 12(b)(3) & 12(f).
Thus he waived the right to contest the contents of the confession or the method by
which it was obtained. See United States v. Moore, 98 F.3d 347, 351 (8th Cir. 1996)
(refusing to suppress statements made prior to the administration of Miranda warnings
because the defendant did not file a timely motion to suppress). We therefore conclude
that the district court's admission of Blue's confession into evidence was not an abuse
of discretion.


                                           B.


      The second issue before us is whether the district court erred in applying a four-
level sentence enhancement pursuant to U.S.S.G. § 2A3.1(b)(1) for using force
contemporaneous with the sexual abuse. Section 2A3.1(b)(1) of the Sentencing
Guidelines provides: "If the offense was committed by the means set forth in 18 U.S.C.

                                           -5-
§ 2241(a) or (b), increase by 4 levels." 18 U.S.C. § 2241(a) concerns aggravated
sexual abuse by force or threat.


      On appeal, Blue challenges the district court's decision to apply the
enhancement. The district court provided the following statement of reasons for
imposing the increase under U.S.S.G. § 2A3.1(b)(1):


             There's no question in the Court's mind but what that statement
      [Blue's confession], admitted, as it was, on proper foundation, was a large
      factor in the return by the jury of the verdict of guilty. The victim in this
      case was 21 months old. There was a relationship between the victim and
      the defendant. The defendant was the only one present in the bathroom
      at that time. The Court believes that there was sufficient force to
      overcome the will of this victim, albeit there was no physical injury as
      such. The matter of use of force under the guidelines is one to be applied
      liberally to the end that the guidelines will represent the amount and
      character of the facts of each case.

             Therefore, the Court will apply the four-level enhancement for the
      use of force under the guidelines.

See Sentencing Tr. at 18.

       Upon review, we disagree. The evidence shows that Blue placed his penis in the
young child's mouth. Blue is five feet, eight inches tall, and he weighs 170 pounds.
However, no evidence exists of the use of physical force or of threats by Blue to the
child. U.S.S.G. § 2A3.1, Application Note 1 provides, in relevant part:

      "The means set forth in 18 U.S.C. § 2241(a) or (b)" are: by using force
      against the victim; by threatening or placing the victim in fear that any
      person will be subject to death, serious bodily injury, or kidnaping; by


                                          -6-
      rendering the victim unconscious; or by administering by force or threat
      of force, or without the knowledge or permission of the victim, a drug,
      intoxicant, or other similar substance and thereby substantially impairing
      the ability of the victim to appraise or control conduct. This provision
      would apply, for example, if any dangerous weapon was used or
      brandished.

      In United States v. Crow, 148 F.3d 1048, 1050 (8th Cir. 1998), the Eighth
Circuit reversed a district court's use-of-force enhancement because:

      [T]he only evidence in the record arguably connoting use of force at the
      time of the offense was the victim's testimony that Crow removed her
      clothes although she did not want him to, and sexually assaulted her,
      hurting her. However, the record is devoid of any evidence regarding
      Crow's size in relation to the victim's, the victim's (perceived) ability to
      escape the sexual attack, or what exactly the victim meant when she
      stated Crow "hurt" her--i.e., whether Crow hurt her to compel her to
      submit to the sexual contact, or whether the contact itself hurt her.

Crow cited examples of "force" from earlier cases. Each example included proof of
difference in size between the defendant and the victim as well as the defendant's
threatening physical or verbal behavior. Id. at 1050-51.

       The record shows an absence of evidence that Blue threatened the child in a
physical or verbal manner. Indeed, the only factor suggesting use of force in this case
is the size difference between Blue and the child. But size difference alone cannot
establish use of force under section 2A3.1(b)(1). Cf. United States v. Bordeaux, 997
F.2d 419, 421 (8th Cir. 1993) (determining that force was sufficient to sustain the four-
level enhancement based on disparity in size and victim's statements that defendant
threatened to tell victim's mother of "dirty book" found by child if victim told her
mother about sexual assaults); United States v. Fire Thunder, 908 F.2d 272, 274-75
(8th Cir. 1990) (concluding that force requirement not met merely because defendant
was adult and stepfather to child victim).

                                          -7-
      The guideline contemplates some evidence of the use of force as an affirmative
matter. Here all we have is status evidence, i.e., a large adult and a small child. That
evidence does not support application of the guideline calling for a heavily increased
sentence.

                                          C.

       Blue also asserts that the district court erred at sentencing in assessing a two-
level enhancement pursuant to U.S.S.G. § 2A3.1(b)(3)(A) because the victim was in
the "custody, care, or supervisory control of the defendant." While the defendant
conceded in post-arrest statements to the FBI that the victim and his mother did live
with the defendant for a six-month period a year prior to the incident and he regarded
the victim as his grandson, he challenges, as a legal matter, whether he had custody or
care of the victim, even temporarily, while the mother and several other individuals
were present in the home during the incident, and whether an actual relationship existed
in which the victim was taught to trust the defendant.

      The district court provided the following statement of reasons for imposing the
increase under U.S.S.G. § 2A3.1(b)(3)(A):

      With the defendant and the victim the only ones in the bathroom, with the
      fact that the defendant looked upon himself as the grandfather, that close
      relationship between the defendant and the victim during that instant when
      the two were in the bathroom together it can be fairly determined that the
      defendant was asserting. And any care, custody, and control of the
      mother had been transferred by the child leaving his mother and going into
      the bathroom. Had the defendant been a stranger, it is arguably unlikely
      that this incident would have happened. The fact that the defendant took
      advantage of his knowledge and the child's knowledge of the association
      between the two indicates to the Court that, indeed, at that time the child
      was under the care, custody, and control of the defendant, albeit, very
      temporary. That care, custody, and control was interrupted by the mother

                                          -8-
      as she came into the room and saw what was happening and took her
      child out of the presence of the defendant.

See Sentencing Tr. at 18-19.

       We conclude that the district court improperly held that the child was within
Blue's care. A defendant is in a custodial position for purposes of this section when he
"is a person the victim trusts or to whom the victim is entrusted." U.S.S.G. 2A3.1,
Comment., Background. The district court's reasoning does not establish custody but
only demonstrates proximity. The evidence shows that Blue was in the bathroom, that
the child entered the bathroom, and that the two were in the bathroom together for a
short time. U.S.S.G. § 2A3.1(b)(3), Application Note 2 provides:

      Subsection (b)(3), as it pertains to a victim in the custody, care, or
      supervisory control of the defendant, is intended to have broad application
      and is to be applied whenever the victim is entrusted to the defendant,
      whether temporarily or permanently. For example, teachers, day care
      providers, baby-sitters, or other temporary caretakers are among those
      who would be subject to this enhancement. In determining whether to
      apply this enhancement, the court should look to the actual relationship
      that existed between the defendant and the victim and not simply to the
      legal status of the defendant-victim relationship.

       Blue was never entrusted with custody of the child. In United States v. Crane,
965 F.2d 586 (8th Cir. 1992), the Eighth Circuit approved the two-level enhancement
where the evidence showed that the defendant had at least temporary custody or care
of the victim in circumstances where the victim's mother relinquished custody and
control to the defendant before the defendant assaulted the victim. In Crane, the
mother testified that she sometimes left the child alone with the defendant (her husband
and the victim's stepfather). See also United States v. Voice, 200 F.3d 584, 585 (8th
Cir. 2000) (per curiam) (noting defendant is in custodial position when record included
testimony by victim's mother that defendant and his companion were supposed to be

                                          -9-
babysitting the victim when the abusive contact occurred); United States v. Chasenah,
23 F.3d 337, 338-39 (10th Cir. 1994) (applying two-level enhancement where court
found evidence that it was "the practice of the family" that responsibility for supervising
the child fell on any adult in the home while the parents were absent coupled with the
fact that the victim was taught by her mother to obey those who were "watching" her
or who were older than she). Here, in contrast, the government failed to establish that
the mother transferred care to Blue.

        Moreover, the prosecution did not introduce any evidence that the victim trusted
Blue or perceived him as his grandfather. None of the witnesses at the jury trial
referred to Blue as the child's grandfather or testified that he had greater access to the
victim because of his relationship with the child's grandmother. Cf. United States v.
Merritt, 982 F.2d 305, 307 (8th Cir. 1992) (finding enhancement applied when
defendant lived with victim's grandmother and consequently was able to be alone with
the victim when he abused her, and, additionally, defendant's probation officer testified
at the sentencing hearing that defendant had supervisory control over the victim when
he picked her up from the home of relatives); United States v. Balfany, 965 F.2d 575,
585 (8th Cir. 1992) (finding enhancement applied when defendant lived with victim's
mother in same house as victim, and was left alone with victim to care for him, and
testimony at sentencing showed that defendant and victim's mother shared many
household responsibilities, including caring for the children at times); United States v.
Castro-Romero, 964 F.2d 942, 944 (9th Cir. 1992) (per curiam) (noting defendant is
in custodial position when he is trusted by victim, or is person to whom victim is
entrusted, and victim was daughter of defendant's common-law wife, defendant was
present at victim's birth and helped raise her, victim referred to defendant as "daddy,"
and defendant lived with the victim and was home alone with her when the second
incident of sexual abuse occurred). Here, the government failed to establish that Blue
is a person the victim trusted at the time of the incident.




                                           -10-
      We therefore instruct the district court to resentence without the erroneous
application of this two-level enhancement based upon the victim's presence in the
defendant's "custody, care, or control."

                                III. CONCLUSION

       We affirm Blue's conviction but vacate his sentence, and remand the case to the
district court for resentencing without the enhancements of four levels for alleged use
of force and an additional two levels for alleged custody, care, or supervisory control
of the victim.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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