949 F.3d 530
10th Cir.2020Background
- Defendant Donald Lee Blackbird, a convicted sex offender, lived in a trailer near his ex-wife Carole’s house, where four minor grandchildren (including victim S.B., age 15) lived.
- Carole left S.B. home alone briefly; Defendant entered the house, conversed with S.B., touched her buttock, and propositioned her for sex; S.B. told her grandmother and Defendant admitted and apologized.
- Defendant pleaded guilty to attempted sexual abuse of a minor; the PSR applied a four-level enhancement under U.S.S.G. § 2A3.2(b)(1) (minor was in defendant’s custody, care, or supervisory control).
- At sentencing the district court applied the enhancement despite defense objection, finding a family/"grandfather" relationship and that Defendant routinely entered the residence.
- On appeal the government conceded it had no evidence that Defendant exercised day-to-day authority or control over S.B. (could not require obedience or set household rules).
- The Tenth Circuit held the enhancement was improperly applied, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2A3.2(b)(1) four-level enhancement applies where a minor was in the same house and Defendant had a "grandfatherly" relationship but was not left in his care | Grandfather relationship and routine entry into the home meant the minor was in Defendant's custody/care/supervisory control | No evidence Defendant had authority, control, or responsibility over S.B.; he merely took advantage of an opportunity | Enhancement vacated; government failed to prove custody, care, or supervisory control by a preponderance of the evidence; remand for resentencing |
Key Cases Cited
- United States v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996) (standard of review for sentencing issues)
- United States v. Chasenah, 23 F.3d 337 (10th Cir. 1994) (enhancement affirmed where child was left in custody of adults who had authority over child)
- United States v. Blue, 255 F.3d 609 (8th Cir. 2001) (grandfather relationship and proximity insufficient to show custody or entrustment)
- United States v. Brooks, 610 F.3d 1186 (9th Cir. 2010) (enhancement applies where defendant held parent-like authority apart from the criminal conduct)
- United States v. Carson, 539 F.3d 611 (7th Cir. 2008) (distinguishing cases where defendant merely exploited an opportunity versus being entrusted with care)