United States v. Swank

A two-level enhancement in sentencing is appropriate when the defendant is convicted of Abusive Sexual Contact under 18 U.S.C. §§ 2244(a)(5), 1153(a), and was in a care-taking, parent-like relationship with the victim.

Robert Swank pled guilty to Abusive Sexual Contact of his minor niece, who was staying with Swank and his wife at the time. Swank appealed the district court’s sentence, imposing a two-level Guidelines enhancement because the victim was in Swank’s “custody, care or supervision.” Swank claimed that this was not warranted, as he was not entrusted with the care of the child. The Ninth Circuit examined past cases where this relationship was found, including cases with crimes involving sex trafficking. In these cases, courts focused on whether the defendant fulfilled a “parent-like” role by providing care to the child, and thereby assuming a position of authority. The Court found that it is this position of authority over a minor that gives rise to the imposition of a higher sentence; abuse of this level of authority warrants a tougher sentence. Swank’s relationship with the victim was sufficient to constitute a caretaker position, as he was the victim’s uncle, was living in the home with his family while the victim was staying in the home, and helped care for the victim. Given this relationship, the district court’s application of the two-level enhancement in sentencing was appropriate. AFFIRMED.