                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2006

USA v. Campbell
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3724




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                                             NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT



                      No. 05-3724


           UNITED STATES OF AMERICA

                           v.

               JOHN L. CAMPBELL, III,

                                Appellant.



     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                 (D.C. No. 04-cr-00306)
       District Judge: Hon. Eduardo C. Robreno


       Submitted under Third Circuit LAR 34.1(a)
                 on September 26, 2006

BEFORE: RENDELL, CHAGARES and ROTH Circuit Judges


           (Opinion Filed: October 31, 2006)



                       OPINION
ROTH, Circuit Judge:

       On November 5, 2004, John L. Campbell, III, pled guilty to two counts of using a

minor to produce visual depictions of sexually explicit conduct in violation of 18 U.S.C.

§ 2251(a) and one count of receiving child pornography in violation of 18 U.S.C.

§ 2252A(a)(2), (b)(1). The District Court sentenced Campbell to a total of 293 months of

incarceration, in addition to fines and a period of supervised release. In calculating the

period of incarceration, the District Court added a 2-level enhancement based on its finding

that Campbell exercised temporary supervisory control over one of the minors used in his

violation of § 2251(a). The sole issue on this appeal is whether the District Court erred in

adding that enhancement.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have

jurisdiction to review Campbell’s sentence for reasonableness under 18 U.S.C. § 3742(a)(1)

and 28 U.S.C. § 1291. In reviewing the reasonableness of Campbell’s sentence, we look to

whether the District Court considered the factors listed in 18 U.S.C. § 3553(a). United States

v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). As a part of its consideration of the § 3553(a)

factors, the District Court must calculate the correct range under the Sentencing Guidelines.

18 U.S.C. § 3553(a)(4); Cooper, 437 F.3d at 330. We exercise plenary review over the

District Court’s legal interpretation of the Sentencing Guidelines and review its factual

findings for clear error. United States v. Irvin, 369 F.3d 284, 286 n.2 (3d Cir. 2004).

       The relevant facts of this case essentially are undisputed. Included in the evidence

against Campbell was a videotape he had made which contained a series of sexually graphic

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depictions of two minor children. Only the depictions of one child are at issue on this appeal.

This child, R.L., is the grandson of Campbell’s mother’s then-boyfriend; Campbell had no

familial relationship with R.L. The videotape depicts R.L. bathing and sleeping and reflect

that Campbell was the only adult present during the taping (though not necessarily the only

adult in the home).1 The bedroom scenes involve Campbell undressing R.L. while he sleeps

and include R.L.’s reaction upon awakening the following morning. Although the exact

dates of filming are not known, they are placed between January 1999 and December 2000.

During this time period, both Campbell and R.L. stayed in R.L.’s grandfather’s house, and

Campbell was asked to babysit R.L. on multiple occasions. Also during this time period,

R.L. bathed in Campbell’s presence and slept overnight in Campbell’s bed on several

occasions.

       Based on these facts, the District Court found by a preponderance of the evidence that

Campbell qualified for a 2-level enhancement under United States Sentencing Guideline §

2G2.1(b)(2). Under this Guideline, the District Court is instructed to increase the offense

level by 2 levels “[i]f the defendant was a parent, relative, or legal guardian of the minor

involved in the offense, or if the minor was otherwise in the custody, care, or supervisory

control of the defendant . . ..” U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(2) (2003).

Application Note 3 to § 2G2.1 states that this subsection “is intended to have broad


       1
        Campbell argued at sentencing that R.L.’s grandfather was “there,” but Campbell
is the only adult who can be seen or heard on the tape. Campbell apparently takes the
position that the grandfather was home, but not necessarily in the room with Campbell
and R.L. when the incidents took place.

                                              3
application and includes offenses involving a minor entrusted to the defendant, whether

temporarily or permanently.” The District Court found that Campbell was exercising

temporary supervisory control over R.L. when the incidents occurred, thereby qualifying

Campbell for the § 2G2.1(b)(2) enhancement.

       Campbell challenges the District Court’s finding of temporary supervisory control.

Campbell correctly asserts that to satisfy the Guideline, a defendant must exercise control not

merely at some point in time, but at the time when the criminal conduct occurred. According

to Campbell, because the government did not prove that he had been asked to supervise R.L.

at the time each of the incidents occurred, the evidence was legally insufficient to establish

supervisory control. Campbell relies heavily on the Eighth Circuit case of United States v.

Blue, 255 F.3d 609 (8th Cir. 2001). In that case, the Eighth Circuit held that an enhancement

under § 2G2.1(b)(3)(A) was inappropriate where the underlying conduct was a brief sexual

encounter in the bathroom that occurred while the child’s mother slept with the bathroom

door in sight, even though the defendant and the child lived in the same house. Id. at 613-15.

       We are not persuaded by the analysis in Blue because the case is distinguishable for

two reasons. First, the incident in Blue was a brief, one-time encounter under circumstances

in which it was plainly evident that the defendant had not been entrusted with supervision

of the child. Here, the incidents in question involved bathing and overnight stays in which

Campbell and R.L. were alone and undisturbed for lengthy periods of time. Moreover, the

record indicates that Campbell was repeatedly entrusted to supervise R.L. in settings similar

– if not identical – to those which he filmed. Second, the Eighth Circuit specifically noted

                                              4
that the record in Blue lacked any evidence that the defendant maintained a relationship of

trust of the child. Here, the record is replete with such evidence. Because § 2G2.1(b)(2) is

aimed in large part at punishing abuse of a child’s trust, see United States v. Balfany, 965

F.2d 575, 585 (8th Cir. 1992), Campbell’s relationship of custodial trust with R.L. is an

important factor.

       As explained in the Application Notes, § 2G2.1(b)(2) is intended to have broad

application. In proving temporary supervisory control, the government need not establish

that the defendant specifically was asked to supervise the child. Instead, supervisory control

may be implied from the circumstances. In Balfany, supervisory control was established

where the defendant lived with the child, cared for the child “at times,” enjoyed a relationship

of trust with the child, and accosted the child in settings in which supervisory control could

be reasonably inferred. 965 F.2d at 585. Those factors all are present here. Although the

finding of supervisory control might be cleaner were the government able to establish that

Campbell was home alone with R.L., the videotape evidences access sufficient for the

District Court to conclude that R.L. was under Campbell’s control – especially since the

government need not establish that Campbell’s control was exclusive. See United States v.

Chasenah, 23 F.3d 337, 339 (10th Cir. 1994). As such, we cannot say that the District

Court’s finding was clearly erroneous.

       For the above reasons, we will affirm the judgment of the District Court.




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