United States v. Carson, Casey , 539 F.3d 611 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-2944
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ASEY J. C ARSON,
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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A RGUED A UGUST 6, 2008—D ECIDED A UGUST 21, 2008
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Before E ASTERBROOK, Chief Judge, and K ANNE and
W OOD , Circuit Judges.
E ASTERBROOK, 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 over-
night 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 con-
tested. 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 posi-
tion, 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, how-
ever. 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 con-
trast, 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.
A FFIRMED
8-21-08