Implied Temporary Caretaking Triggers U.S.S.G. § 2A3.2(b)(1) When a Guardian Entrusts a Minor for Overnight Visits

1. Introduction

In United States v. Chumwalooky (10th Cir. Jan. 7, 2026) (unpublished order and judgment), the Tenth Circuit affirmed a within-Guidelines sentence for an eighteen-year-old defendant who pled guilty to Sexual Abuse of a Minor in Indian Country under 18 U.S.C. §§ 1151, 1153, & 2243(a). The sentencing dispute centered on whether the district court properly applied the four-level enhancement in U.S.S.G. § 2A3.2(b)(1) for offenses committed when “the minor was in the custody, care, or supervisory control of the defendant.”

The defendant, Leo Steban Chumwalooky, was the victim’s older half-brother. The victim’s guardian periodically allowed the minor (M.W., age 14) to stay overnight with the defendant in a separate “guesthouse” on a family property. The guardian later discovered diary entries describing sexual acts and reported the matter. At sentencing, the parties proceeded by proffer (stipulating to what the guardian would say if called).

The key issue on appeal was narrow but consequential: whether the facts supported an inference that the defendant functioned as a temporary caretaker—and thus had “custody, care, or supervisory control”—even absent express, parent-like authority or explicit instructions communicated to the defendant or the minor.

2. Summary of the Opinion

The Tenth Circuit affirmed, holding that the district court did not clearly err in finding the enhancement applicable. The panel emphasized (i) the Guideline’s stated intent of “broad application,” (ii) the guardian’s entrustment of the minor to the defendant specifically because the defendant “was an adult” and “the responsible person,” and (iii) the overnight setting with no other adults present in the guesthouse. The court rejected arguments that the victim’s age (14), the defendant’s young adulthood (18), the sibling relationship, or the absence of explicit supervisory directives defeated the enhancement.

3. Analysis

3.1. Precedents Cited

United States v. Blackbird

United States v. Blackbird, 949 F.3d 530 (10th Cir. 2020), was the defendant’s principal authority. There, the court vacated application of the same enhancement because the government failed to show the defendant had any real authority or control over the minor; mere familial relationship and proximity were insufficient. The defendant-grandfather lived separately (due to sex-offender restrictions) and attempted the assault when he found the 15-year-old victim home alone. The Tenth Circuit summarized the scenario as exploiting an opportunity, not abusing entrusted supervision.

Chumwalooky treats Blackbird as establishing a limiting principle—§ 2A3.2(b)(1) demands “some degree of authority or control,” not simply proximity or kinship—while simultaneously explaining how that requirement can be met by entrustment evidence short of formal legal custody. The decisive distinction was that, unlike in Blackbird, the guardian here affirmatively placed the minor with the defendant overnight because he was regarded as the responsible adult for that situation.

United States v. Chasenah

United States v. Chasenah, 23 F.3d 337 (10th Cir. 1994), supplied the doctrinal breadth the panel relied on. Chasenah upheld the enhancement where the defendant had supervisory control within a household structure, emphasizing that the enhancement applies to anyone who abuses “even peripheral or transitory custody, care, or supervisory control.” It also held “it makes no difference that another person shares responsibility with the defendant for the care of the victim.”

In Chumwalooky, Chasenah performs two functions:

  • Scope of authority: The enhancement does not require full parental powers; “peripheral or transitory” control can suffice.
  • Shared oversight: The presence (or potential authority) of other adults on the property does not negate the defendant’s temporary caretaking role.

The panel also rejected the defense’s attempt to read Chasenah as requiring explicit, communicated instructions to obey the defendant, explaining that the enhancement targets taking criminal advantage of “trust others have placed in him,” which can exist without formalized directives.

United States v. Wilfong

United States v. Wilfong, 475 F.3d 1214 (10th Cir. 2007), anchored the appellate posture. It states the clear-error standard: reversal is inappropriate unless the reviewing court is left with a “definite and firm conviction” that the district court made a mistake. In Chumwalooky, that standard did substantial work: the panel acknowledged the evidentiary record was “somewhat limited” (because the parties proceeded by proffer), yet still found enough to sustain the district court’s inference of temporary custody.

United States v. McDonald

United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022), was cited for the government’s burden to prove enhancement facts by a preponderance of the evidence. The panel’s analysis reflects a familiar sentencing dynamic: modest factual showings can satisfy preponderance, particularly when the Guideline is designed for “broad application” and the appellate standard is deferential.

United States v. Gambino-Zavala

United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008), is cited within McDonald for the same burden principle. Its role is supportive rather than substantive: it reinforces that the government must prove enhancement predicates, but need only do so by a preponderance, not beyond a reasonable doubt.

3.2. Legal Reasoning

The court’s reasoning proceeds in three steps.

(1) Interpretive frame: § 2A3.2(b)(1) is “broad” and focuses on the actual relationship

The panel emphasized the Guideline commentary: the enhancement is intended to have “broad application” and applies whenever the minor is “entrusted to the defendant, whether temporarily or permanently.” It also stressed the instruction to examine the “actual relationship” rather than formal “legal status.” This framing makes informal caregiving arrangements—common in families—central to the analysis.

(2) Factual predicate: entrustment + overnight setting + absence of other adults in the immediate space

Relying on the parties’ proffers, the district court found the guardian allowed overnight visits because the defendant “was an adult,” understood him to be “the responsible person,” and “entrusted” the minor to his care. The panel treated those facts as sufficient to infer temporary caretaking authority, especially because the overnight stays occurred in the guesthouse without other adults present there.

Importantly, the court did not require proof of formal rules, explicit supervision instructions, or detailed evidence of day-to-day authority over the minor’s life. Instead, it treated entrustment for an overnight stay—paired with the defendant’s adult status in the guardian’s eyes—as enough to constitute “custody, care, or supervisory control” for the limited period of the visit.

(3) Distinguishing Blackbird: opportunity vs. entrusted responsibility

The panel understood Blackbird as an “opportunity exploitation” case: the defendant encountered the victim home alone and did not occupy a trusted caregiving role. In contrast, the defendant here was the person with whom the guardian intentionally placed the minor overnight. That difference—intentional placement for a visit versus incidental proximity—allowed the court to find the “authority or control” requirement met, even if that authority was implied rather than explicit.

3.3. Impact

Although the decision is an unpublished “Order and Judgment” and “not binding precedent,” it is likely to be cited for persuasive value in at least three recurring sentencing contexts:

  • Family and quasi-peer scenarios: The opinion supports applying § 2A3.2(b)(1) even when the defendant is a young adult close in age to the victim (18 vs. 14) and the relationship is sibling-like, so long as there is evidence the minor was entrusted to the defendant’s care.
  • Implied (not express) authority: The panel’s refusal to require explicit communication of “parent-like authority” lowers the practical evidentiary threshold for the enhancement in informal caregiving arrangements (overnights, visits, “watching” a child during family events).
  • Sentencing proof by proffer: Where parties proceed by proffer, Chumwalooky indicates appellate courts may still affirm if the proffered facts plausibly support entrustment and the district court’s inference is not clearly erroneous.

The opinion also implicitly encourages litigants to focus on why the minor was placed with the defendant (trust/entrustment) rather than on labels like “babysitter” or on whether the defendant exercised overt disciplinary control.

4. Complex Concepts Simplified

  • “Custody, care, or supervisory control” (U.S.S.G. § 2A3.2(b)(1)): This does not mean legal custody. It refers to a situation where an adult is temporarily responsible for a minor’s wellbeing or supervision— even informally (e.g., an overnight stay arranged by a guardian).
  • “Entrusted”: The enhancement turns on trust placed by a parent/guardian (or similar authority figure) in the defendant to supervise the minor for a period of time. In this case, the guardian’s reason—because the defendant was “an adult” and “responsible”—was key evidence of entrustment.
  • Preponderance of the evidence: The government must show something is more likely true than not. It is a lower bar than “beyond a reasonable doubt.”
  • Clear-error review: On appeal, factual findings are reversed only if the appellate court is firmly convinced the district court made a mistake. If the record reasonably supports the finding, the appellate court will usually affirm.
  • “Broad application” (Guideline commentary): The Sentencing Commission expressly intended this enhancement to apply in many settings where minors are temporarily placed under an adult’s supervision, not just formal caregiving jobs.

5. Conclusion

United States v. Chumwalooky reinforces that the § 2A3.2(b)(1) enhancement can rest on implied temporary caretaking authority when a guardian entrusts a minor to the defendant for an overnight visit, even if the defendant is a young adult sibling and there is no proof of explicit “parent-like” instructions or disciplinary control. By distinguishing United States v. Blackbird and leaning on the breadth recognized in United States v. Chasenah, the panel confirms that the key question is not formal legal status but whether, in practice, the defendant was placed in a position of trusted supervision that he then abused.