United States v. Swank
2012 U.S. App. LEXIS 7558
| 9th Cir. | 2012Background
- Swank pled guilty to Abusive Sexual Contact involving his wife's 7-year-old niece who stayed with the family.
- At sentencing, the district court applied a 2-level enhancement for 'custody, care, or supervisory control' of the victim, raising the base level.
- The enhancement was based on Swank living in the same home, sharing caretaking responsibilities with his wife, and being an adult in proximity to the victim.
- Swank challenged the enhancement, arguing he was not entrusted with custody, care, or supervisory control.
- The district court sentenced Swank to 151 months, the low end of the Guidelines range, followed by 10 years of supervised release.
- On appeal, the Ninth Circuit reviews the district court’s interpretation of the Guidelines de novo and factual findings for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Swank was entrusted with custody or care | Swank argues he lacked entrusted custody or supervisory control. | Government contends Swank shared caretaking duties and was in loco parentis given his residence and role. | Yes; Swank was entrusted with custody or care. |
Key Cases Cited
- United States v. Brooks, 610 F.3d 1186 (8th Cir. 2010) (care, custody, or supervisory control broadly construed; parent-like authority may apply)
- United States v. Blue, 255 F.3d 609 (8th Cir. 2001) (insufficient evidence of custody or control; no entrusted custody)
- United States v. Carson, 539 F.3d 611 (7th Cir. 2008) (Blue applied; no entrusted custody where not in guardian-like role)
- United States v. Kenyon II, 481 F.3d 1054 (8th Cir. 2007) (defined care/custody to include any entrusted caretaking role; peripheral custody may suffice)
- United States v. Kenyon I, 397 F.3d 1071 (8th Cir. 2005) (facts supporting entrusted care and custodial role)
- United States v. Merritt, 982 F.2d 305 (8th Cir. 1992) (acknowledges abuse of trust as enhancement rationale)
- United States v. Miller, 293 F.3d 468 (8th Cir. 2002) (recognizes parent-like status not strictly required for enhancement)