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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 3: Sentencing Guidelines

USSG § 2G2.1(b)(5)


Custodian of Minor

GUIDELINES LANGUAGE

USSG § 2G2.1(b)(5):

“If 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, increase by 2 levels.”

The application notes clarify that this enhancement is intended to have “broad application,” including offenses involving “a minor entrusted to the defendant, whether temporarily or permanently.” Therefore, teachers, daycare providers, babysitters, and other temporary caretakers are 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 (b)(5) applies, the enhancement in § 3B1.3 for abuse of a position of trust or use of special skill does not apply.

CUSTODY / CARE

The Seventh Circuit found that more than one person at a time can have custody, care, or supervisory control of a minor, so the enhancement can apply to someone who shares custody and control with someone else. Furthermore, even if the codefendant were the sole custodian of the minor, their acts would have been attributed to the defendant because they agreed upon everything that occurred.[1]

In a sexual abuse of a child case, the Eighth Circuit ruled that the enhancement did not apply when there was no evidence that the minor’s mother transferred care to the defendant, and thus the minor was not “entrusted to” the defendant.[2] The Ninth Circuit followed this line of logic and deemed “parent-like authority” necessary for the application of the enhancement, therefore deciding not to apply the enhancement when a defendant lacked parental authority.[3] They cite the Fifth Circuit’s assessment of parent-like authority by asking whether it would have been the defendant who “would have taken [the minor] to the emergency room, would have signed the applicable forms, and would have requested for [the minor] to receive treatment.”[4] The Third Circuit split, ruling that care and supervisory control require some degree over or responsibility for a victim (more than mere presence), but that standard does not require parent-like authority.[5]

The Fifth Circuit considered whether an older defendant related by marriage to a minor victim can be in custody or control over the victim. Because of the age gap between the two, the broad intent of the enhancement, and a longstanding relationship, the court applied the enhancement.[6]

The Eleventh Circuit ruled that if the defendant was responsible for looking after the minor’s safety and wellbeing, such as by providing life necessities to the victim and their family, the minor was in the defendant’s care, the enhancement applied.[7]

The First Circuit ruled that a caretaker does not need to be in the same physical space as the minor during the creation of child pornography, and that as long as the victim is in the defendant’s care, custody, or control at the time the sexually explicit conduct that formed the basis of the charges took place, the enhancement applies.[8]


[1] United States v. Carson, 539 F.3d 611, 612 (7th Cir. 2008)

[2] United States v. Blue, 255 F.3d 609 (8th Cir. 2001)

[3] United States v. Harris, 999 F.3d 1233, 1237 (9th Cir. 2021)

[4] United States v. Alfaro, 555 F.3d 496 (5th Cir. 2009)

[5] United States v. Perez-Colon, 62 F.4th 805 (3d Cir. 2023)

[6] United States v. Alfaro, 555 F.3d 496, 501 (5th Cir. 2009)

[7] United States v. Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)

[8] United States v. Gonyer, 761 F.3d 157, 171 (1st Cir. 2014)

PARENTAL RIGHTS / BIOLOGICAL RELATIONSHIP

The Sixth Circuit found that a defendant was a parent for enhancement application purposes despite his parental rights having been terminated because he had re-entered his daughter’s life as a father figure for a few years before the offenses. They did not decide whether a mere biological relationship between the defender and the victim would be sufficient for the enhancement to apply.[9]

The Tenth Circuit ruled that the enhancement did not apply where the government failed to show that the defendant, despite being the minor’s grandfather, exercised custody, care, or supervisory control over the victim. Here, a biological relationship to the minor alone was not sufficient for the application of the enhancement.[10]

In response to a defendant’s claim that teenagers do not require supervision and that his relationship with the victim was that of boyfriend/girlfriend rather than father/daughter, the Eighth Circuit ruled that because the offense conduct began when the victim was 13 or 14, required supervision and was frequently left in the care of the defendant, and the defendant did not have legal fatherhood over the victim but served as step-parent, the enhancement applied.[11]


[9] United States v. Perez-Colon, 62 F.4th 805 (3d Cir. 2023)

[10] United States v. Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)

[11] United States v. St., 531 F.3d 703, 711 (8th Cir. 2008)

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