PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DONALD LEE BLACKBIRD, Defendant - Appellant. No. 19-7007

________________ _________________ Appeal from the United States District Court for the Eastern District of Oklahoma

(D.C. No. 6:18-CR-00068-RAW-1)

________________ _________________ J. Lance Hopkins, Tahlequah, Oklahoma, fo r the Appellant Donald Lee Blackbird. Christopher J. Wilson, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Linda A. Epperl ey, Assistant United States A ttorney, on the brief), Office of the United States Attorney for the Ea stern District of Oklahoma, Muskogee, Oklahoma, for the Appellee.

________________ _________________ Before CARSON , BALDOCK , and EBEL , Circuit Judges.

________________ _________________ CARSON , Circuit Judge.

________________ _________________ Defendant, Donald Lee Blackbird, atte mpted to sexually abuse his fifteenyear-old granddaughter. He pleaded guilty to the offens e, and the district court sentenced him to sixty mont hs’ imprisonment. At sent encing, the district court FILED United States Court of Appeals Tenth Circuit 

### February 5, 2020 Christopher M. Wolpert Clerk of Court2 applied a sentence enhancement, which increas ed his base offense level because “the minor was in the custody, care, or supervisory control of th e defendant” at the time of the attempted sexual abuse. U.S. Sent encing Guidelines Manual § 2A3.2(b)(1) (“U.S.S.G.”). Defendant appeals his sentence, argui ng that the government presented no evidence he had custody, care, or supervisory control of his granddaughter at the time of the attempted abuse. Ou r jurisdiction arises under 28 U. S.C. § 1291. Because the government failed to show that Defendant exercised “custody, car e, or supervisory control” over the victim, we vacate the sentence and remand fo r resentencing.
I. Defendant’s now ex-wife, Carole Blackbi rd (“Carole”), lived in a house with four of the couple’s minor grandchildren, in cluding “S.B.,” the victim in this case. Defendant, a convicted sex o ffender, lived in a nearby tr avel trailer because the Oklahoma Department of Human Services had required that he move out of Carole’s house before it placed thei r minor grandchildren there. Carole stated that even though Defendant lived in the trailer, he often came to the house for meals and had an “apparently normal grandfather relationshi p” with their grandchildren. Although Defendant entered the house during the day, he slept in the trailer at night. One day, Carole and three of the grandc hildren left the hous e for a short time, with S.B. remaining home alone. As S.B. sat alone in the kitchen, Defendant came into the house to get a drink of water, a bow l of ice cream, and to watch television. Defendant entered the kitche n and began talking to S.B. about getting her driver’s3 license and first job. Defenda nt then touched her right buttock with his hand and told her that she could “make $10” if she let him “bust her cherry” (referring to sexual intercourse). S.B. told him to stop, and Defendant left the room . S.B. texted her grandmother, asking her to come home. She told her grandmother about the encounter, and Carole confronted Defendant. He admitted his actions but said he regretted it and apologized. Defendant later pleaded guilty to a ttempted sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246. In prep aration for sentencing, the United States Probation Office generated a Pre-Sentence Report (“PSR”). The PSR provided a base offense level of eighteen, but also include d a four-level enhancement under U.S.S.G. § 2A3.2(b)(1). Section 2A 3.2(b)(1) adds four levels to the base offense level if “the minor was in the cust ody, care, or superv isory control of the defendant” at the time of the attempted sexual abuse. Defendant objected to the enhancement. The district court overruled the objection and applied the enhancement, finding “by a pr eponderance of the evidence that the adjustment under Sentencing Guideline Section 2A3.2(b)(1) is appropriate.” Defendant appealed. In reviewing sentencing issues, we revi ew legal questions de novo. United States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir. 1996). We review the district court’s factual findings for clear error. Un ited States v. Chasenah, 23 F.3d 337, 338 (10th Cir. 1994).4 II.
On appeal, Defendant argues that the distri ct court erred in applying the four-level enhancement under U.S.S.G. § 2A3.2(b)(1 ) because the government presented no evidence that S.B. was in Defend ant’s custody, care, or supervis ory control. We agree. Section 2A3.2 “is intended to have broad applicati on and is to be applied whenever the minor is entruste d to the defendant, whether te mporarily or permanently.” U.S.S.G. § 2A3.2 cmt. n.2(A). And in dete rmining whether the enhancement applies, we must analyze the “actual relationship” betwee n the defendant and th e victim. Id. The district court found that even though “the minor vi ctim in this case was not expressly left in the actual or temporary cust ody or care of the defendant,” she was in the house “alone for periods of time while the de fendant, a trusted and immediate member of the family . . . freely and routinely entered the residence.” The district court further found that the victim’s mother described the defendant as having a normal grandfather relationship with S.B., but did not elaborate on that descrip tion. Based solely on these facts, the district court applied the four-lev el enhancement. Thes e facts, however, do not show that Defendant had custody, care, or s upervisory control of S. B. United States v. Blue, 255 F.3d 609, 614 (8th Cir. 2001). Section 2A3.2(b)(1) requires that a defenda nt possess some degree of authority or control over the victim, rather than just mere proximity or familial relation to the victim. Id. (rejecting the district court’s reasoning that grandfatherly relationship and proximity5 to the victim demonstrated custody or care of the victim). 1 For example, the Sentencing Commission cites “teachers, day care providers , [and] baby-sitters” as individuals “who would be subject to this enha ncement.” U.S.S.G. § 2A3.2 cm t. n.2(A). These individuals are all “in a position of author ity over the minor.” United States v. Brooks, 610 F.3d 1186, 1201 (9th Cir. 2010). Our precedent also supports the notion th at the enhancement applies when the defendant is in a position of authority over a minor. Thus, in Chasen ah, we affirmed the enhancement’s application where “the child was left in the cu stody of ‘all the adults’ in the home, including defendant” and, importan tly, because the child was “instructed to obey anyone who ‘was older’” or “who was watching” her. 23 F.3d at 338 (emphasis added). 2 As Chasenah demonstrates, merely sh owing that Defendant is the victim’s grandfather is not enough. The government also needed to show that Defendant had some degree of authority over or responsi bility for her. Brooks , 610 F.3d at 1201

1 In Blue, the Eighth Circuit also r easoned that despite the defendant’s grandfatherly relationship with the victim, the evidence fa iled to show that “the victim trusted” the defendant or that the defendant was “entrusted with custody of the child.” Here, the government similarly failed to show that S.B. trusted Defendant or that Carole entrusted S.B. to him. 2 We also note that in Chas enah, the victim was six y ears old. 23 F.3d at 338. While age is not dispositive, we consider it a relevant factor in determining whether a minor is in defendant’s custody, care, or supervisory control. At sentencing, the district court discussed Chasenah and r ecognized it as distinguishable because sixyear-olds cannot stay home alone. Here, howev er, S.B. was fifteen at the time of the offense, and the district c ourt acknowledged that Carole did not expressly leave S.B. in Defendant’s care or custody. Instead, Ca role left S.B. home alone, with Defendant entering the residence only afte r she had left with the ot her three grandchildren. Unlike in Chasenah, the government pres ented no additional evidence, and the district court did not othe rwise find, that Defendant babysat or was otherwise responsible for S.B. whenever Ca role was out of the house.6 (holding that the “defendant must have held a position of parent-like authority that existed apart from conduct givi ng rise to the crime”). In this case, the government admitted the opposite. When the district court asked questions about the “actual relationship” betw een Defendant and S.B., counsel conceded he had not presented “one iota of eviden ce that the defendant actually controlled any aspect of the young lady’s life.” The gove rnment acknowledged “it was unaware of any facts” showing that the defenda nt had authority over S.B.’s day-to-day functions. When the district court asked whether Defendant coul d require S.B. to do something as menial as “pick up [her] plate off th e coffee table” or “go to bed” or “do [her] homework,” the government even admitted it “was unaware of any facts” showing that Defendant possessed such authority. In the end, we are left with a situ ation in which Defendant exploited an opportunity when he found S.B. home alone. United States v. Cars on, 539 F.3d 611, 612 (7th Cir. 2008) (distinguishing Blue because in that case “no one ha d entrusted the minor to [defendant]; he simply t ook advantage of an opportunity when th e mother could not protect her child”). His oppor tunistic conduct, however, does not meet the threshold for applying the four-level enhancement. A ccordingly, because the government did not demonstrate by a preponderance of the evidence that S.B. was in the “custody, care, or7 supervisory control of” Defendant at the time of the attempted sexual abuse, the district court’s application of the enha ncement constitutes clear error. We, therefore, VACATE the sentence and REMAND to the district court for resentencing consistent with this opinion.