US v. Harris, 19-30202 (6-9-21)(McKeown & Paez; Graber dissenting). Appealing the sentence on a sexual exploitation conviction, the 9th vacated and remanded. The 9th held that “making a list” and being proximity of the child did not support enhancements for the defendant being a “leader” or being a “guardian.” The defendant, with an intellectual disability and a personality disorder, was the boyfriend of the abused child’s mother, a co-defendant. The co-defendant mother admitted the abuse, but did not say that the defendant forced her or made her.  He made a list of people he would like to have sexual intercourse with, which included the child. But a list is not a directive to the co-defendant. The defendant had moved in with the co-defendant, but he never took care of the child; nor was he left alone with the child.

Under these facts, the district court’s finding an enhancement for a “leader” under USSG 3B1.1(c) and a “guardian” under 2G2.1(b)(5) was clear error. The 9th discusses US v. Avila, 95 F.3d 887 (9th Cir. 1996) and US v. Whitney, 673 F.3d 965 (9th Cir. 2012) which hold that facilitation or even a central role in the offense differs from leading.

As for the guardian enhancement, the 9th concludes the defendant never had parent-like authority and never acted a parent.

Dissenting, Graber finds the record sufficiently supports the district court’s decision. Graber stresses the sealed evidence.

Congrats to Matt Kinghorn, Fed Defender Services of Idaho. This is a good opinion explaining the two enhancements.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/09/19-30202.pdf