FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30072
Plaintiff-Appellee, D.C. No.
v. 1:10-cr-00086-
ROBERT TIMOTHY SWANK, Sr., RFC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
March 6, 2012—Portland, Oregon
Filed April 16, 2012
Before: William A. Fletcher, Raymond C. Fisher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
4075
UNITED STATES v. SWANK 4077
COUNSEL
Anthony R. Gallagher, Federal Defender, Great Falls, Mon-
tana, for the appellant.
Marcia Hurd and Lori Harper Suek (argued), Assistant United
States Attorney, Billings, Montana, for the appellant.
OPINION
BYBEE, Circuit Judge:
Robert Timothy Swank Sr. (“Swank”) pled guilty to Abu-
sive Sexual Contact, in violation of 18 U.S.C. §§ 2244(a)(5),
1153(a). The victim was his wife’s minor niece who had been
4078 UNITED STATES v. SWANK
staying with the couple while her mother was away. At sen-
tencing, the district court imposed a two-level Guidelines
enhancement, finding that the victim was “in the custody,
care, or supervisory control of” Swank. Swank was sentenced
to 151 months’ imprisonment. He appeals the imposition of
the two-level enhancement, claiming that he was not entrusted
with custody, care, or supervisory control of the victim. We
affirm.
I. BACKGROUND AND PROCEEDINGS
On June 23, 2010, the Bureau of Indian Affairs (“BIA”)
received a report from the Crow Tribal Law Enforcement that
a child had been abused on the reservation. At the time of the
relevant conduct, Swank lived in south central Montana with
his wife, Annie Swank (“Annie”), their two-year old daugh-
ter, and Annie’s three-year old daughter from a prior relation-
ship. Annie reported that Swank had sexually abused her
seven-year-old niece (“the victim”). The child had been stay-
ing at their home since June 21, 2010, when Annie’s sister
asked Annie to watch her daughter so she could attend the
Sun Dance ceremony.
On the first night that the victim was staying with them,
Annie observed Swank dim the lights in the children’s bed-
room and then enter the room. She told him to leave the girls
alone while they slept. Annie recalled that the next morning
Swank was cooking breakfast and the children were watching
television.
Later that night, June 22, Annie entered the living room,
turned on the light, and observed the victim jump up from
Swank’s lap and pull up her trunks. Swank made a sudden
movement, but remained on the couch with his legs open.
When Annie asked him why he was sitting there with his legs
open, he responded, “you’re sick in the head.” Before going
to bed that night, the victim told Annie that she was scared
and that Swank had kissed her and told her to wait for him
UNITED STATES v. SWANK 4079
later. The victim further reported that the previous night
Swank entered her room and started “humping” and “kissing”
her. He then removed her clothing, bent her over, and
“humped” her.
When she was interviewed on June 28, the victim con-
firmed that Swank had entered her room when she was sleep-
ing and inappropriately touched her on two different
occasions during her stay with the Swanks.
Swank was charged by complaint and arrested on July 6,
2010. On the morning of his trial, Swank pled guilty to a
superseding information, charging him with Abusive Sexual
Contact, in violation of 18 U.S.C. § 2244(a)(5).1 After plead-
ing guilty, but before sentencing, Swank submitted a written
statement admitting the allegations.
Using the 2010 Guidelines Manual, the Probation Office
calculated Swank’s base offense level at 30, and then applied
an upward adjustment because the victim was under twelve
years old (+4) and was “in the custody, care, or supervisory
control of the defendant” (+2). The office also recommended
a two-level reduction for acceptance of responsibility, result-
ing in a total offense level of 34. Because Swank’s criminal
history category was I, the Guidelines range of imprisonment
was 151 to 188 months.
Swank filed objections to the presentence report relating to
the calculation of the Guidelines range. Relevant to this
appeal, Swank objected to the assessment of a two-level
increase for the “custody, care, or supervisory control” spe-
1
Swank was charged in the same count with being “[an] Indian who
commits against the person . . . of another Indian . . . felony child abuse
. . . within the Indian country,” for which the same law and penalties apply
as to “all other persons committing [the] offense[ ], within the exclusive
jurisdiction of the United States.” 18 U.S.C. § 1153(a); see also United
States v. Bruce, 394 F.3d 1215, 1219-20 (9th Cir. 2005).
4080 UNITED STATES v. SWANK
cific offense characteristic, pursuant to U.S. Sentencing
Guidelines (“U.S.S.G.”) § 2A3.1(b)(3). The district court
overruled the objections, and sentenced Swank to 151
months’ imprisonment, the low end of the Guidelines range,
to be followed by ten years of supervised release.
II. DISCUSSION
Swank appeals a single issue: whether the district court
misapplied U.S.S.G. § 2A3.1(b)(3) because Swank was not
“entrusted” with the “custody, care, or supervisory control” of
the victim. We review “ ‘the district court’s interpretation of
the Sentencing Guidelines de novo . . . and the district court’s
factual findings for clear error.’ ” United States v. Cantrell,
433 F.3d 1269, 1279 (9th Cir. 2006) (quoting United States
v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005)). We have
previously noted an intracircuit conflict as to whether the
standard of review for application of the Guidelines to the
facts is de novo or abuse of discretion. See United States v.
Rivera, 527 F.3d 891, 908 (9th Cir. 2008). The choice of stan-
dard, however, does not affect the outcome of this case. See
United States v. Yip, 592 F.3d 1035, 1038 (9th Cir. 2010).
[1] The Guidelines for the offense of Abusive Sexual Con-
duct provide that if the offense involved criminal sexual abuse
or attempt to commit criminal sexual abuse, § 2A3.1 should
be applied. See U.S.S.G. § 2A3.4(c)(1). Under § 2A3.1(b)(3),
if the victim was in the “custody, care, or supervisory control
of the defendant,” a two-level increase shall be applied to the
base offense level of 30. Application Note 3(A) states:
Subsection (b)(3) is to be construed broadly and
includes offenses involving a victim less than 18
years of age entrusted to the defendant, whether tem-
porarily or permanently. For example, teachers, day
care providers, baby-sitters, or other temporary care-
takers are among those who would be subject to this
enhancement. In determining whether to apply this
UNITED STATES v. SWANK 4081
enhancement, 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.
Id. § 2A3.1 cmt. n.3(A).
[2] Although we have not had occasion to address the
application of this subsection in a case such as this, we have
interpreted the same phrase as applied in § 2G1.3(b)(1),2 for
crimes involving sex trafficking. See United States v. Brooks,
610 F.3d 1186, 1200 (9th Cir. 2010). In Brooks, we explained
that “care,” “custody” or “supervisory control” refers to a pre-
existing role “comparable to that of . . . parents, relatives, and
legal guardians,” because “care, custody, and supervisory
control of minors are quintessential duties” of parents, rela-
tives, and legal guardians. Id. We concluded that one who
“otherwise” exercises custody, care, or supervisory control
exercises “parent-like care . . . albeit ‘in a different way or
manner’ or ‘in different circumstances’ than traditional guard-
ians.” Id. at 1200-01 (quoting Webster’s New International
Dictionary 1598 (3d ed. 1976)). We pointed out that
“[t]eachers, day care providers, and baby-sitters all act in loco
parentis, in a position of authority over the minor that exists
apart from the conduct giving rise to the offense.” Id. at 1201.
“[I]t is the abuse of authority over the minor that makes the
offense conduct more egregious and thus worthy of enhance-
ment.” Id.; see also United States v. Merritt, 982 F.2d 305,
307 (8th Cir. 1992) (noting that one justification for the
enhancement is that the defendant is a person the victim trusts
and thus the potential for greater damage exists). In Brooks,
2
Section 2G1.3(b)(1) provides that “[i]f (A) the defendant was a parent,
relative, or legal guardian of the minor; or (B) the minor was otherwise
in the custody, care, or supervisory control of the defendant, increase by
2 levels.” U.S.S.G. § 2G1.3(b)(1) (emphasis removed). The application
notes refer to “teachers, day care providers, baby-sitters, or other tempo-
rary caretakers.” Id. § 2G1.3 cmt. n.2(A).
4082 UNITED STATES v. SWANK
the defendants were charged with picking up two teenage
girls and turning them into prostitutes. 610 F.3d at 1191-92.
We concluded that the defendants had no relationship to the
girls other than the crime itself and that it was error to
enhance their sentence under U.S.S.G. § 2G1.3(b)(1). Id. at
1201-02.
In United States v. Blue, 255 F.3d 609 (8th Cir. 2001) (per
curiam), the Eighth Circuit reversed the district court’s appli-
cation of the enhancement, finding that there was insufficient
evidence to show that the defendant had custody, care, or
supervisory control over the victim. See id. at 614-15. Blue,
the defendant, had lived with the victim and his mother for six
months a year prior to the incident. Id. at 613-14. But on the
night in question, Blue was present only to attend a gathering
where a group of adults were drinking. See id. at 610-11, 614.
There was no evidence that, at the time of the assault, the
child’s mother had transferred care to Blue. See id. at 614-15.
“Blue was never entrusted with custody of the child”; the
prior relationship facilitated “proximity,” but “d[id] not estab-
lish custody.” Id. at 614; see also United States v. Carson,
539 F.3d 611, 612 (7th Cir. 2008) (interpreting Blue as hold-
ing that the defendant did not have “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”).
[3] In another case, United States v. Kenyon (Kenyon II),
481 F.3d 1054, 1072 (8th Cir. 2007), the Eighth Circuit
upheld a sentence enhancement based on facts similar to this
case. In that case, a minor child, A.L., stayed with Kenyon’s
common-law wife approximately two Fridays each month for
several years. United States v. Kenyon (Kenyon I), 397 F.3d
1071, 1074 (8th Cir. 2005). A.L. slept in a bedroom belonging
to the daughter of Kenyon and his common-law wife, and
Kenyon would gain access to A.L. by entering the bedroom
while the children were sleeping. Id. Kenyon regularly fed the
children staying in his home, drove them around, and there
UNITED STATES v. SWANK 4083
was some evidence that he had responsibility for assigning
chores and disciplining all of the children. See Kenyon II, 481
F.3d at 1072. The Eighth Circuit held that a “defendant has
care, custody, or supervisory control if the victim has been
entrusted to him,” and “even peripheral or transitory custody”
may support the enhancement. Id. (internal quotation marks
omitted). Further, the court recognized that the custody need
not be exclusive, “[s]o long as the defendant ha[d] some
responsibility for the child.” Id.
[4] Although in many cases the defendant will exercise a
parent-like role, see United States v. Miller, 293 F.3d 468,
470 (8th Cir. 2002) (victim referred to Miller as “Dad”);
United States v. Sandoval, 506 F. Supp. 2d 582, 597 (D.N.M.
2007) (victim was Sandoval’s biological daughter), Applica-
tion Note 3 makes clear that parental status is not required.
The note provides examples of temporary caretakers who
could be subject to the enhancement, such as teachers, day
care providers, and babysitters. Such persons are not, typi-
cally, parents, but they “all act in loco parentis.” Brooks, 610
F.3d at 1201. That is, such caretakers have been entrusted
with parent-like authority to care for, supervise, and, as neces-
sary, discipline the child, even if that authority is limited or
brief. Thus, in construing the language of the Guidelines
broadly, as the application notes require, any relationship in
which the defendant actually plays a caretaking role may sub-
ject that defendant to the enhancement.
In this case, the district court found that Swank resided in
the home where the abuse occurred and was equally responsi-
ble with his wife, the child’s aunt, for her care. The district
court did not clearly err in this conclusion.
[5] The mere fact that Annie, who was clearly entrusted
with the care of the child, was married to Swank may not be
sufficient to show that Swank was entrusted with some level
of care over the victim. Additionally, contrary to the govern-
ment’s argument, it was not the fact that Annie was sleeping
4084 UNITED STATES v. SWANK
that leads us to conclude that Swank was in the position of
exercising custody, care, or supervisory control. See Carson,
539 F.3d at 612. Swank, however, resided in the same home
as Annie, had a child with her, and shared the caretaking
responsibilities of the two children who resided in the home
on a full-time basis. Swank was the victim’s uncle, was father
and step-father to her two young cousins living in the home,
and was present while the victim stayed with his family. Thus,
Swank was not a transitory presence in the home, but an adult
with legal obligations to the children living with him. During
the relevant time period, Swank prepared food for all of the
children, thus evidencing the kind of “care” that the Eighth
Circuit in Kenyon II found to be persuasive evidence of cus-
tody, care, or supervisory control. See 481 F.3d at 1072.
[6] The district court’s application of the enhancement in
this case is fully supported by our explanation for why the
enhancement exists: “it is the abuse of authority over the
minor that makes the offense conduct more egregious and
thus worthy of enhancement.” Brooks, 610 F.3d at 1201. As
the district court explained, Swank “being the other adult that
was residing in that home, had not only the right but the
responsibility to exercise that type of control for [the victim’s]
care.” We agree. The district court did not err in finding that
the victim was in the custody, care, or supervisory control of
Swank and did not err in applying the enhancement in this
case.
AFFIRMED.