IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
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FILED
No. 08-40190 January 20, 2009
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Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DANIEL DAVID ALFARO
Defendant-Appellant
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Appeal from the United States District Court
for the Southern District of Texas
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Before SMITH, SOUTHWICK, Circuit Judges, and ENGELHARDT, District Judge.*
KURT D. ENGELHARDT, District Judge:
Defendant-Appellant Daniel Alfaro (“Alfaro”) pleaded guilty without a plea
agreement to one count of production of child pornography by use of a video cassette,
knowing that such visual depiction would be transported in interstate commerce and foreign
commerce, by any means including by computer in violation of 18 U.S.C. § 2251(a) and (e)
*
District Judge for the Eastern District of Louisiana, sitting by designation.
(“Count One” or “the production count”) and one count of knowingly receiving a visual
depiction, namely, a video recording of a minor engaging in sexually explicit conduct that
had been transported, mailed, and shipped in interstate and foreign commerce, by any means
including by a computer in violation of 18 U.S.C. § 2251 (a)(2) and (b)(1) (“Count Four” or
“the receipt count”).1 Alfaro now appeals the sentence he received for Count One,
contending that the district court erred by enhancing his sentence by two levels pursuant to
§ 2G2.1(b)(5) of the United States Sentencing Guidelines (the “Guidelines”)2 because the
minor at issue was not in his custody, care, or supervisory control. We AFFIRM.
I. BACKGROUND
On or about March 1, 2007, 36-year-old Alfaro produced videos of himself and a
15-year-old minor child (later identified as his sister-in-law) engaging in sexually explicit
conduct (including oral to genital sexual intercourse and the lascivious exhibition of the
minor’s genitals). Alfaro intended to send these videos to another over the Internet. He
created the videos with products that had traveled in interstate commerce. Alfaro
attempted to send at least one of the videos to another over the Internet by way of email.
Alfaro was also found to be in possession of more than 70 videos containing images of
1
Daniel David Alfaro was charged by indictment with two counts of producing child
pornography and one count each of sending child pornography, receiving child pornography,
possessing child pornography, and providing child pornography to a minor. However, he pleaded
guilty to one count of producing and one count of receiving child pornography. The remaining counts
were dismissed by the district court on the Government’s motion.
2
All references are to the 2007 edition of the U.S. Sentencing Guidelines Manual
(2007), which was used by the district court.
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minors engaging in sexually explicit conduct, most of which he received from sources
over the Internet.
When calculating the offense level for both Counts One and Four under the
Guidelines, the probation officer determined that the production count resulted in the
higher level. The Presentence Investigation Report (“PSR”) recommended a base offense
level of 32 pursuant to § 2G2.1. The probation officer recommended several
enhancements, including a two-level enhancement pursuant to § 2G2.1(b)(5) based on the
conclusion that the minor involved in the offense was within Alfaro’s care, custody, and
control (which is the sole basis for Alfaro’s current appeal). Count One had a total
adjusted offense level of 40, which was increased by one under the multiple count
adjustment of § 3D1.4. After a three-level reduction for acceptance of responsibility,
Alfaro’s total offense level was 38. This, combined with a criminal history category of I,
resulted in an advisory guideline range of 235-293 months in prison. The receipt count
carried a statutory maximum sentence of 240 months.
Alfaro objected to several of the enhancements, including the assertion that he
exercised control over the minor. The Government filed a response, noting that §
2G2.1(b)(5) was meant to apply broadly and asserting that it was reasonable to conclude
that Alfaro, a 36-year-old man, acted as a caretaker to his 15-year-old sister-in-law. The
Government noted that during an interview, the victim stated that Alfaro would pick up
the victim at her house, would take the victim to his house, and would produce the
videotapes there while the victim’s sister, his wife, was away.
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At sentencing, Alfaro argued that the victim’s taped interview established that he
did not exercise custody or control over the victim. He noted that the victim never stayed
with him or spent the night at his home. Alfaro argued that the victim used to call him for
a ride after school and pointed out that the victim’s mother did not approve of the victim
spending time with Alfaro. The Assistant United States Attorney (“AUSA”) repeated that
Alfaro was 20 years older than the victim and was a family member. The AUSA further
opined that if the victim had injured herself, Alfaro would have taken her to the
emergency room, would have signed the applicable forms, and would have requested for
her to receive treatment. The AUSA thus contended that the victim was “under [Alfaro’s]
custody and care and control just as much as if he were her babysitter.”
The district court overruled Alfaro’s objection and sentenced Alfaro to concurrent
sentences of 288 months for the production count and 240 months on the receipt count, to
be followed by a life term of supervised release. Alfaro filed a timely notice of appeal.
II. DISCUSSION
As a threshold matter, we must determine the proper standard of review, which is a
point at issue in the case. Alfaro maintains that the proper standard is de novo review,
because the case concerns the interpretation and application of the Sentencing Guidelines.
The Government contends that the finding that the victim was in Alfaro’s “custody, care,
or supervisory control” is a factual finding reviewed under a “clearly erroneous”
standard. See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (a
district court’s application of the sentencing guidelines is reviewed de novo while its
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factual findings are reviewed for clear error), cert. denied, 128 S. Ct. 2452 (2008). This
Court has never considered the appropriate standard of review of the application of a
two-level enhancement under § 2G2.1(b)(5) in a case where a district court has found a
minor victim was under the control of the defendant. However, this Court has concluded
in the context of other provisions of the Guidelines that it will affirm a sentencing
enhancement when a district court makes factual findings that are not clearly erroneous,
and then applies the guidelines to those findings. See United States v. Mejia-Orosco, 867
F.2d 216, 221 (5th Cir. 1989). In this particular case, the district court made findings
concerning Alfaro’s relationship with the victim, such as the age difference between
them, the family relationship, and the fact that he picked her up and took her to his house.
The district court then applied§ 2G2.1(b)(5) to those findings and concluded that the
victim was in Alfaro’s “custody, care, or supervisory control.” We review for clear error
this application of the Sentencing Guideline in question to the facts.
Having clarified the appropriate standard of review, we must now determine
whether a minor victim can be in the custody, care, or supervisory control of a defendant
when the victim’s parent or legal guardian did not specifically entrust the victim to the
defendant’s care. On appeal, Alfaro argues that the district court erred in applying the
two-level enhancement for his control over the victim. He maintains that the PSR and the
district court relied solely on the fact that Alfaro was older than the victim and was
related to the victim by marriage. He asserts that no evidence was presented to show the
“actual relationship” between the two, as required by the commentary to the Guidelines.
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Alfaro notes that the victim’s mother did not approve of Alfaro and the victim spending
time together and contends that, as a result, the court could not find that Alfaro was
entrusted with the care of the victim.
On the other hand, the Government maintains that because the Guideline is to be
broadly applied, the difference in age and the implicit trust in the family relationship are
relevant to the issue of control. The Government also cites to case law concerning similar
Guidelines in support of its assertion that the fact that the victim called Alfaro for rides
showed that the victim placed trust in Alfaro, which it contends is sufficient for the
enhancement. The Government maintains that the district court properly considered the
actual relationship between Alfaro and the victim in conjunction with the family
relationship.
Under § 2G2.1(b)(5), the court should apply a two-level enhancement to a
defendant’s sentence for producing sexually explicit visual or printed material “[i]f the
defendant was 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.”
U.S.S.G. § 2G2.1 (b)(5). This enhancement “is intended to have broad application and
includes offenses involving a minor entrusted to the defendant.” Id. at comment 3(A).
The commentary lists examples of individuals to whom the enhancement would apply,
including teachers, babysitters, day care providers, and “temporary caretakers.” Id. The
commentary states that “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
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defendant-minor relationship.” Id.
There is ample evidence that the district court properly applied the guideline in
this instance in looking to the actual relationship between the victim and Alfaro. The
district court noted that the commentary to the Guideline suggested that the enhancement
should be applied broadly and should be considered in the context of the defendant’s
actual relationship to the victim “and not simply the legal status of that relationship.”
Concluding that although it was “questionable” whether Alfaro “was technically
entrusted” with the victim’s care, the district court determined that “the actual
relationship between an adult male and the sister-in-law” constituted “an entrustful
relationship or would fall into the category that is contemplated.” The Government noted
at sentencing that the victim’s mother was aware that the victim went to Alfaro’s house,
although the victim had stated that her mother disapproved of the visits. Thus, in making
its determination, the district court was presented with details that enabled it to consider
the scope of the parties’ arguments on the question of whether Alfaro exercised custody
or control over the victim in order look to the “actual relationship.” Thus, the district
court did not misapply the guidelines.
Alfaro contends that the evidence presented at sentencing was insufficient to
support the enhancement because there was nothing to show that the victim was in his
care or control. This circuit has, thus far, never considered the propriety of an
enhancement under § 2G2.1(b)(5). Other circuits have addressed this enhancement, but
admittedly only in cases that have involved either (1) a closer family relationship than
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that of a brother-in-law and a sister-in-law or (2) an express entrusting of care by the
minor’s custodian. See United States v. Martin, 2008 WL 4148529, at *3 (6th Cir. Sept.
9, 2008) (No. 07-5159) (unpublished) (enhancement applied when minors were left by
parents in the care of a photographer who was purportedly training them for modeling
jobs); United States v. Carson, 539 F.3d 611, 612 (7th Cir. 2008) (boyfriend of
noncustodial parent qualified for enhancement when minor’s guardian aunt allowed the
minor to visit his mother and the defendant); United States v. Street, 531 F.3d 703, 711
(8th Cir. 2008) (enhancement applied to individual that the victim considered as
stepfather, even though the victim was a teenager who did not need caretaking, because
the victim had known the defendant for some time and was left in his custody). It is true
that none of the above cases evokes the relevant questions here: whether an older
defendant who is related by marriage to a minor victim can exercise custody and control
over the victim notwithstanding the victim’s parent’s disapproval of the relationship.
To address this specific issue, Alfaro contends that the difference in ages alone is
insufficient to warrant the enhancement and maintains that “[t]here is nothing inherently
‘entrustful’ about the relationship between a brother-in-law and a sister-in-law – it is
more of a peer relationship.” While that may be true generally, this Court concludes that
the 20-year age difference between Alfaro and his teenage minor victim, which the
district court noted in its adverse ruling, mitigates against a finding that the two were
“peers.” While the more distant family relationship may not lend itself to a presumption
of a trust relationship (as it would if the defendant was a parent or guardian), the
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commentary to § 2G2.1 indicates that the enhancement should be applied broadly and
applies to more than mere legal caretakers of a minor. Thus, the district court did not err
when it concluded that the relationship between 36-year-old Alfaro and his 15-year-old
sister-in-law was an entrustful relationship.3
As for the issue regarding the “actual relationship between Alfaro and the minor,
he maintains that “[t]he record is devoid of details of [his and the victim’s] ‘actual
relationship,’” including an absence of information on the length of time that the minor
knew him. Alfaro hypothesizes that the victim may have “met him just before the events
that led to the offense” and maintains that “[t]he record supports a conclusion that a
fifteen-year-old pursued an unauthorized relationship with a much older man.” Although
the specifics of the victim’s relationship with Alfaro are not detailed in the record, there
is some information from which this Court could conclude that the relationship had been
longstanding. The PSR, which the district court reviewed in making its determination,
revealed that Alfaro had begun a common-law relationship with the victim’s sister in
3
The Government notes that because the victim would call Alfaro and ask him for rides
home from school, it is clear that the victim herself trusted Alfaro, even if the victim’s mother did not
explicitly authorize Alfaro to exercise control over her daughter. The Government claims that this
is sufficient to uphold the enhancement, citing United States v. Merritt, 982 F.2d 305, 307 (8th Cir.
1992) and United States v. Balfany, 965 F.2d 575, 585 (8th Cir. 1992). However, Merritt and
Balfany both dealt with an enhancement under Guideline § 2A3.1, which, at that time, specifically
indicated that the enhancement should apply if the victim trusted the defendant. As Alfaro points out,
Section 2G2.1, applicable here, does not contain the same commentary. This Court agrees with
Alfaro that, for that reason, it is not necessarily appropriate to look to cases applying § 2A3.1(b)(3)
in determining whether to apply an enhancement under § 2G2.1(b)(5). However, despite this finding,
this Court determines that the district court properly considered the age difference between the victim
and Alfaro and their “actual relationship” when it applied the 2-point enhancement in this instance.
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2000. It is, thus, reasonable to conclude that the victim met Alfaro at or around that time
and had known the victim for some seven years when he made the videotapes of her on or
about March 1, 2007.
Thus, for the reasons stated herein, we conclude that the district court did not err
when it applied the two-point enhancement in this instance.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
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