In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-2944

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CASEY J. CARSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:06CR30135-001-GPM—G. Patrick Murphy, Judge.

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ARGUED AUGUST 6, 2008—DECIDED AUGUST 21, 2008

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Before EASTERBROOK, Chief Judge, and KANNE and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Brenda Russell’s parental

rights were terminated in 2004 when she abandoned her

son, who went to live with his aunt. The next year Russell

met Casey Carson, who was intrigued by both child

pornography and incest. In December 2005 the son’s

aunt (who lives in Missouri) agreed to let him stay overnight with Russell and Carson (who had taken up resi-
2 No. 07-2944

dence together in Illinois). At Carson’s urging, Russell

and her son engaged in both intercourse and fellatio,

while Carson took pictures; Russell vetoed Carson’s

proposal to have anal sex with her son. A few weeks

later the aunt agreed to a second overnight visit, again

featuring incest (which Carson again photographed).

Both Russell and Carson pleaded guilty to conspiring

to transport a minor across state lines for the purpose of

unlawful sexual activity, 18 U.S.C. §2423(a), (e), and Carson

also pleaded guilty to interstate travel to engage in illicit

sexual conduct, 18 U.S.C. §2423(b). Russell, sentenced to

170 months’ imprisonment, has not appealed. Carson’s

sentence of 540 months (360 months on one count and 180

months on the other, to be served consecutively) is contested. His sole argument is that the district court should

not have added two offense levels under U.S.S.G.

§2G2.1(b)(5), which applies when the defendant is “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”.

Carson maintains that this enhancement is inapplicable

because the minor was in his mother’s custody throughout.

He assumes that only one person at a time can have

“custody, care, or supervisory control” of a minor, but

we don’t see why. Application Note 3(A) to §2G2.1 tells us:

Subsection (b)(5) is intended to have broad application

and includes offenses involving a minor entrusted to

the defendant, whether temporarily or permanently.

For example, teachers, day care providers, baby-sitters,

or other temporary caretakers are among those who
No. 07-2944 3

would be subject to this enhancement. In determining

whether to apply this adjustment, 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.

If the enhancement applies to a babysitter, even though the

parents have ongoing legal custody and a right to direct

the babysitter’s performance, there is no reason why the

enhancement cannot apply to someone in Carson’s position, who shares custody and control with someone else.

The aunt gave Russell and Carson mutual custody for the

duration of the visits. What’s more, even if Russell were

deemed to be a sole custodian, her acts would be imputed

to Carson because the two were joint venturers, and

everything that occurred was within the scope of their

agreement. See U.S.S.G. §1B1.3(a)(1)(B); see also Pinkerton

v. United States, 328 U.S. 640 (1946). That Russell prevented

Carson from sodomizing her son does not imply that

Russell had sole authority, any more than the fact that

Carson induced Russell to commit incest establishes that

Carson was in sole control; the two acted by agreement,

which makes both of them responsible. See United States

v. Chasenah, 23 F.3d 337, 339 (10th Cir. 1994).

According to Carson, United States v. Blue, 255 F.3d 609

(8th Cir. 2001), which concerns a custody enhancement

under U.S.S.G. §2A3.1(b)(3)(A), establishes that a parent’s

presence in the house where a sexual assault occurs

prevents any finding that a non-parent has “custody, care,

or supervisory control”. This is not Blue’s holding, however. Blue sexually assaulted the minor in a bathroom,
4 No. 07-2944

while his mother was dozing in the bedroom. The court

concluded that Blue could not be treated as having custody

or control because no one had entrusted the minor to

him; he simply took advantage of an opportunity when

the mother could not protect her child. Carson, by contrast, had been entrusted with the minor and abused

that position. Blue acknowledged that a non-relative

may have joint custody with a minor’s relative, see United

States v. Merritt, 982 F.2d 305, 307 (8th Cir. 1993). The

aunt gave Russell and Carson joint control of the minor

for the duration of the visits, so §2G2.1(b)(5) applies.

AFFIRMED

8-21-08