won now at the syncing hearing the district court judge asked the u s attorney is there one iota of evidence that the defendant actually controlled any aspect of this young lady's lot referring to the minor the u s attorney responded that there is no evidence that my client controlled the legal functions of her lot now after she said that the judge that what it what about day to day functions such as pick up the plate off the to coffee table and take it to the kitchen go to bed get off the phone with your friends do your homework anything like that at all and the u s attorney said she was unaware of any facts that supported that particular assertion so by the government's own admission there's i know you're getting right to the point that i really personally struggled with this case and looking at what do in the the commentary to the guideline provides and i just like your take and any authority to says in the got you know in determining whether to apply this enhanced the court should look to the actual relationship that exists between the defendant and the minor and not simply to the legal status of the defendant minors relationship now give me your take on what that means when you read that well in that same application that it says but what it says is that this provision this guideline provision is intended to have brought application and it is to be applied whenever the minor is untrusted to the defendant loaded word though and that invested a granddad lives in a trailer outside the house comes in and out as he pleases interacts with the grandkids as he pleases has meals with the family socialize could the legal guardians aren't afraid to leave the kids when he's there or they know he's coming in and out i mean isn't can't you draw out inference that they're in trusting the children to him  outside of the offense conduct i submit the court that when he did go over there the grandmother was always there it was generally there well but your answer the question is this man was already a judge as a sex offender yes sir and under the rules that he was obligated he could be and trust legally he could not be in the trust position with his granddaughter i mean that would be a prohibition against that and the word used is custody here and supervisory control this is this is what but it shouldn't be bothering me as much  as it is because of what he was convicted of and the fact that he was but it does because words matter now it didn't say that custody care or supervisory or trusted position legally he couldn't have a trusted position but then that's what they could be right back to that language where it says you should look at the actual relationship that exists between the defendant and the minor and not simply to the legal status so the fact that he wasn't supposed to do that doesn't mean that he wouldn't do it and that there are some and and that was your objection you can't you didn't show he was in the care today or supervisory control so i 'm really struggling in trying to get a handle on this not that i'm in favor or your client is but i'm trying to look at it in a legal position based on a good objection that you may have made so again i come back what's that what's that relationship give me a picture of that relationship and i might add to the government you're going to get something else well up in the courts right he he there's a reason the department of public services the human services made him go out of the trailer as a legally can be around and there really wasn't that much evidence that he had outside of being in the house that he had any kind of evidence i mean any kind of relationship with this child special relationship he was a you know i think that does the big thing about this case we've got proximity here he he was there he was around these children and all the time he was around them all the time you know wrecked was there he showered in there i mean the only time i guess he left the house when he went out to go to bed at night but at this particular enhancement does that apply to people that are just around for this in him this isn't this isn't hansen it applies to care takers people that are a special position it doesn't apply to proximity and that's why i really rely heavily on this case of the eight circuit of united states versus blue to fifty in addition to that and blew up to six and up until about six months before i believe it got written down here yeah the mother and the minor child lived with a defendant it for a year up to six months prior to the so that's that similar to this case but they said even with that this child was never intrusted to be defended the mother never transferred to controllers or in interesting right now that i gree with the daughter didn't do the interesting she didn't trust her father or grandfather because she had already been abused by him try to she didn't interest her grandpa to take care the mother obviously didn't  had a granddaughter i mean the three of them the i mean the the other the the grandmother she had left right yes and when the grandmother left the girl was home by herself so she did not interest or girl didn't intrust because she had already been abused by the guy and didn't trust him so unless we can find somebody who quote intrusted i just don't see that that's my argument i don't see any of it that is my argument needed somehow i got diverted when when the course a well he's like a normal grandpa well i gotta tell ya grandpa was don't fit any more of a normal scheme than parents or children or anybody i mean there is no officer they apparently had a normal you know grandfather granddaughter relation of what she said was he had a normal grandfather relationship with all the kids in the house that's all that was said in the government in the court take carol blackbird isn't might not be normal anybody else it's just a blanket statement by carole black bert hey they seem to have a normal relationship but are you arguing or like a mantra moan quote you're he should have had any enhanced but uncharacteristic or supervisor control and then the child was never placed in his care under his supervision that enhancement does not apply well at that and that's your argument that's my argument  question then is if let's just for purposes of argument say that you are correct then what is he subject to because he's not non guilty what's and so i'm going i'm glad i'm glad you asked that question is kind of like a career offender provision it's a little bit different he got a five level one hand by being a repeat sexual offender against minors so we did we didn't object to that translate that into months what's the difference and that you're arguing that he got this many months were as if he was not properly sentenced under that enhancement he is still going to get this many months already if he got the god learn range with is anticipated this question and we talk about it in our brief  the the child's parents works and when they were gone they did it with they did it was an understanding that the adults in the house watch the kids and the kids were to munt were told to mind the adults and to do what they said we don't have anything like said you have a problem here we basically what you what the district court did was rely on it make this application based on an inference of what a grand fathers you know control or interaction with the kid is and but you have a colloquy with the district court in the in your colleague i presume  have to go to bed if he says get the plate the she get the plate and your colleague says that's i've got no evidence about and so the district courts as well ok i'm going to i'm going to make make an assumption a presumption that since they have this grandfather granddaughter relationship that there's entrustment i mean isn't that a problem when you've got an expressed disavowal of that kind of evidence by your colleague the purpose of the enhancement according to the commentary is to punish the abuse of the relationship and although there was no specific evidence in what my co counsel colleague was saying was that there was no specific evidence in the record where they asked the grandmother does he have the have the authority to do that but what we do have here is a situation where you have a grandfather who is who is in fact a grandfather he's not a someone who they consider to be a grandfather or consider the kids to be their green kids you know actually have the grandfather who because of a prohibition because of what d h has said is actually using a different bedroom in essence he sleeping outside in the trailer and he's using the rest of his daily activities inside the house on the day of the offense what is the relationship and just ball that you ask that question counsel what is the relationship what's the actually shipped when these two what's going on that she's in the house alone grandmothers left her there she's fifteen years old i understand that's quite a bit different from a six or seven year old male absolutely and and there was no statement by them the grandmother ever saying if i'm not around you take care of this granddaughter that is correct but there was no the word in trust me there is no affirmative statement of anybody interesting grandpa with this girl and while you're thinking about this i want to add i want to i want to add on to your question and i'm all for piling on because i'm doing the most dangerous thing i got dictionary dot i'm looking at the word trust which says to charge it or in best with a trust or responsibility so someone had to charge or invest him what they trust or responsibility and i want to read because the the it says if the minor is in the custody care and super rugby control it doesn't say included trust it gives you a specific basis for that and we're on our all also going off on and trust me in the in trust me language comes from the from the application note that talks about this idea of the minors intrusted to the defendant but again we get back to do the same comment that says you have to look at the actual relationship and i'm going to try to get to it your question by looking at the relationship the relationship on that day was is it the young the fifteen year old is there alone when there was no there's nothing in the record that says grandmother told grandfather you can't be in here when these kids are by themselves look at what do you have been the show that she is actually in his legal custody i'm sorry what do you have that shows that the young lady was number one in his legal custody there's no corridor even given her comfort to what do you have it shows that she was in the care of this man number three what do you show as being in the supervisory control of this man that he's given the pile of groundwater but that's a very poor the granddaughter of the grand father she is any but he has a position of trust and if you in the case law talks about this idea than trust mitt and i know dictionary dot com talks about this being trusted but it also says the that take in a custody position when he is a person the victim trust or to whom the victim is in trust that it is an idea of that there is a trust relationship between the two where you agree she doesn't trust him because when he propositioned there she told him no thinks man texted grandma write them but at the point he did that that is true however again going to the day of the crop she's in the she's in the kitchen he was in she doesn't immediately run from the house she says down there he joins her at the kitchen table they begin talking about when you going to get for score when you get your st job there so watching videos together he is taking advantage of the relationship he's taking advantage of that trust relationship which is what the purpose of this enhanced but is is to is to punish the evil of violating that trust i understand that argument and i also understand that we're dealing with you know a sexual abuse type of case here question the legal question is though did the district court have the right to give him a four point enhanced month on the basis of custody care super or and you know trust me whatever you want  i can envision people thinking that well we're going soft on crime that's not the issue the issue is has he been legally sentenced under this guideline which specifies what and that's where i'm coming from i'm really bothered by that because well i'm just bothered by it and that's why i told you you're going to be hit with the same thing so you've got to convince me because that was the specific objection raised before the district court judge you can't give me the four point enhanced but because you can't show here custody supervisory control and saying that there's an trust been in this case is a stretch the focus of the gonne them falls upon anyone who for the purpose of abusive sexual contact abuses even peripheral or transitory custody care or supervisory control of the victim the enhancement recognized abuse itself is  sure that your burden you have the burden for the for getting the enhancement below and your evidence was essentially one thing a statement by the grandmother that he had a normal grandfather really relationship with the kids right that he is the good that's what that i mean that's that's it ok it was there anyone with did anyone testify do anything to further define what that relationship is or are are we expected to just use our own sort of common sense about what a grandfatherly relationship i go back to your honor to two what took place that day we have to look at what the actual relationship right but that that that cuts both ways what happened that day cuts both ways i that he took advantage of that relationship where the wheels came off the bus was talking about grandfather's and that's not the word grandfather didn't appear in these in this guideline or the notes already talked about the know what's the word in trust and i ask is did anybody in trust anything to this grandpa and everybody said no no but i did then we go to the guideline itself custody did anybody it was this grandfather in the custody did he have custody of the girl and we know legally he could how about care that the girl was taking care of yourself feed yourself  i agree with you that grandfather's might carry an aura of some authority but i don't see anything in his guideline it says control by virtue of your familial relationship with  victim that might involve grandfather being in up just being a grandpa but it uses words that are not related specifically to grandpa custody care and control and i just say i don't did what is there any do you have any specific evidence of custody specific evidence of care or specific evidence of control in this record your honor based upon pickett particular case my colleague at the syncing hearing said that there was no specific evidence that said that he had the authority to direct her to put her dishes  correct ok now we have those facts and the bill that talked about it so then we go to the application it says in determining whether or not to apply this enhanced the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant minor relationship now that's the comment that they're trying to get us to say disk with the facts that we were stabbed as we're talking here so now i am supposed to look at the actual a ship that existed between the defendant and the minor and not simply the legal status now what's the actual relationship here that would establish us applying the implication that it was within the custody care and supervisory control of the grandfather because that's what they're telling us we got to do our food do i'm not necessarily agreeing with that but that's what set and again it is the government's position that what are we trying to punish you what are we trying what is this enhanced but what is the purpose of it is care custody or control as a grandfather who lives in the same but lives basically lives in the same house there is in the court talked about an inference and i think that's what the court made was an inference that the fact that he you know he sleeps outside he stays in the house all the time that there is in imprints that he has that ability to control you know maybe maybe use her back this is in commission and have them in this use the word special relationship right the case will be submitted counselor excused