United States of America, Plaintiff-appellee, v. Kenneth Edward Sam, Sr., Defendant-appellant, 119 F.3d 8 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 119 F.3d 8 (9th Cir. 1997) Submitted July 14, 1997. **Decided July 18, 1997

Appeal from the United States District Court for the District of Nevada, No. 96-10565, D.C. No. CR-96-00008-HDM; Howard D. McKibben, District Judge, Presiding.

Before HUG, Chief Judge, KOZINSKI and LEAVY, Circuit JJ

MEMORANDUM* 

Kenneth Edward Sam, Sr. appeals the sentence imposed upon his guilty plea conviction for abusive sexual conduct with a minor. Sam contends that the district court erred by increasing his base offense level under U.S.S.G. § 2A3.4(b) (3) for the victim being in his care, custody or control. Because a defendant's role in the offense is a factual conclusion, rather than a legal one, we review for clear error, see United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994), cert. denied, 115 S. Ct. 1147 (1995), and affirm.

Sam contends that the evidence did not establish that the victim was alone with him or that he had supervisory control over her, as required for the increase under U.S.S.G. § 2A3.4(b) (3). A defendant is in a custodial position for purposes of this enhancement when he is a person the victim trusts, or to whom the victim is entrusted. United States v. Castro-Romero, 964 F.2d 942, 944 (9th Cir. 1992). We conclude the district court properly examined the actual relationship which existed between Sam and the victim, which included caretaking responsibilities when the child was left alone with Sam. Under these facts, the district court did not clearly err by enhancing Sam's sentence. See id.

AFFIRMED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3