United States of America v. Joseph Lavern Harris

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
J OSEPH LAVERN HARRIS ,
Defendant-Appellant.
No. 19-30202
D.C. No.
4:18-cr-00103-BLW-1
OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 3, 2021
Seattle, Washington
Filed June 9, 2021
Before: Susan P. Graber, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Graber

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SUMMARY*
Criminal Law
The panel vacated Joseph Harris’s sentence, and
remanded for resentencing, in a case in which Harris and
Elizabeth Evans each pled guilty to sexually exploiting
Evans’s minor daughter, “CV.”
The panel held that because there is no evidence that
Harris exercised control over Evans, the district court abused
its discretion in applying a leadership enhancement under
U.S.S.G. § 3B1.1(c). The panel wrote that Harris’s making
lists of people, including CV, with whom he wanted to sleep,
was at most analogous to making a suggestion, which the
Sentencing Guidelines make clear is not enough for
application of the enhancement. The panel wrote that even
if writing the lists could be characterized as facilitation, that,
too, falls short of what the enhancement requires, as does
playing a central role in the offense.
The panel held that the district court also erred in
applying a “guardian” enhancement under U.S.S.G.
§ 2G2.1(b)(5). The panel observed that Harris—who was
not CV’s parent, didn’t act as her legal guardian, and knew
CV for less than two months—was never entrusted with
parent-like authority and never acted in loco parentis. The
panel observed that Harris was never even a temporary
caretaker or babysitter, that Evans did not let him be home
alone with CV, and that CV’s reference to him as “dad” is
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED S TATES V. H ARRIS 3
not indicative of the actual relationship between them. The
panel emphasized that the law looks to parental authority,
not proximity.
Dissenting, Judge Graber wrote that the district court’s
findings in support of the enhancements are neither illogical
nor implausible, and the record provides sufficient support
in inferences that may be drawn from the facts to render the
findings not clearly erroneous.
COUNSEL
Matthew L. Kinghorn (argued), Federal Defender Services
of Idaho, Pocatello, Idaho, for Defendant-Appellant.
John C. Shirts (argued), Assistant United States Attorney;
Bart M. Davis, United States Attorney; United States
Attorney’s Office, Pocatello, Idaho; for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
This appeal tests the limits of two sentencing
enhancements. Joseph Harris and Elizabeth Evans each pled
guilty to sexually exploiting Evans’s minor daughter, “CV.”
At Harris’s sentencing, the district court applied two
enhancements: one for his alleged role as a leader and the
other for his alleged role as a guardian to CV. In doing so,
the district court exceeded the bounds of the enhancements.
We vacate the sentence and remand for resentencing.

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BACKGROUND
Harris and Evans became romantically involved in
December 2017 and moved in together in January 2018. The
Jefferson County Child Protective Services (“CPS”) visited
their home in February 2018, acting on an anonymous report
of possible child abuse. The report proved true: when CPS
spoke with CV, she reported sexual abuse by Harris, whom
she referred to as “dad.” The police found photographs of
the abuse, one of which Evans admitted taking. The police
also recovered handwritten notes that listed people,
including CV, with whom Harris and Evans wished to have
sexual intercourse.
When asked whose idea the abuse was, Evans did not pin
the blame on Harris. She told the police that the two of them
had “discussed it” and that Harris “did not pressure her to
participate in the abuse of her daughter.” She also reported
that she never left CV home alone with Harris.
In the past sixteen years, Harris has been evaluated six
times with the Wechsler Adult Intelligence Scale. His
results range from extremely low to borderline-range
intelligence. An evaluation prior to the district court
proceedings determined that he has a mild intellectual
disability and a personality disorder.
At his sentencing, Harris objected to the proposed
leadership and guardian enhancements. Without the
enhancements, Harris’s applicable sentencing range was 210
to 262 months. But the district court applied both
enhancements, resulting in a range of 324 to 360 months.
Harris was sentenced to 300 months.

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UNITED S TATES V. H ARRIS 5
ANALYSIS
We review the district court’s factual findings for clear
error, its construction of the United States Sentencing
Guidelines de novo, and its application of the Guidelines to
the facts for abuse of discretion. United States v. Gasca-
Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
I. T HE “L EADER ” E NHANCEMENT UNDER U.S.S.G.
§ 3B1.1(C)
The Guidelines allow for a two-level enhancement if the
defendant was “an organizer, leader, manager, or supervisor
in any criminal activity.” U.S.S.G. § 3B1.1(c). Harris was
neither a manager nor a supervisor, so we focus on whether
he was an “organizer” or a “leader.” To qualify as such,
Harris must have exercised “control over others.”1 United
States v. Avila, 95 F.3d 887, 892 (9th Cir. 1996).
The practical dimensions of what it means to exercise
“control over others” are well illustrated by United States v.
Avila. Avila was the sole go-between for a buyer and a seller
in a drug sale. Id. at 891. Even though he obtained and
mailed the cocaine, was the only person who met with the
undercover officer, and received armed assistance from co-
conspirators, we held that the enhancement did not apply
because he did not exercise “control over others.” Id. at 890–
92. Similarly, in United States v. Whitney, we held that the
enhancement was not warranted because there was no
demonstration of control over others, even though the
defendant “supplied [a co-conspirator] with tax forms and
1 The enhancement may also apply if the defendant exercises
“organizational authority” over others, but because there was no criminal
organization here, we focus only on the “control over others”
requirement. Avila, 95 F.3d at 892.

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information on filing false returns.” 673 F.3d 965, 969, 975–
76 (9th Cir. 2012).
As in Avila and Whitney, “there is no evidence in the
record that [Harris] exercised any control” over others.
Avila, 95 F.3d at 890. The district court relied on “the
suggestion” that Harris “directed [Evans] to participate with
him in this conduct by taking photographs of it.” But that
suggestion is unsupported by the record. Evans took at least
one photograph, but nothing in the record supports that
Harris directed her to do so. Not even an inference supports
direction by Harris. By concluding that Harris directed
Evans, the district court clearly erred.
The district court also found that Harris demonstrated
control by making lists of people, including CV, with whom
he wanted to sleep. As the district court put it, Harris was
“directing or influencing Ms. Evans in some of her other
behavior, as well: sitting down and writing lists of deviant
sexual acts and partners.” But under the Guidelines and our
precedent, these lists do not establish control.
Evans participated in making the lists, but Harris did not
direct her to do so. Making a list is at most analogous to
making a suggestion. Though there may be some direction
inherent in a suggestion, the Guidelines are clear that a
suggestion is not enough for application of the enhancement.
U.S.S.G. § 3B1.1 cmt. n.4. (“[T]he adjustment does not
apply to a defendant who merely suggests committing the
offense.”).
Even if writing these lists could be characterized as
facilitation, that, too, falls short of what the enhancement
requires. In United States v. Holden, for example, we held
that the enhancement did not apply because the defendant’s
act of instructing a co-conspirator on how to send funds to

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UNITED S TATES V. H ARRIS 7
accounts abroad was “best characterized as facilitation” and
did not demonstrate control over others. 897 F.3d 1057,
1065 (9th Cir. 2018).
The lists and notes in this case fall especially short of
establishing leadership because Evans also made her own
lists, the two shared their lists, and Evans stated that Harris
“did not pressure her to participate in the abuse of her
daughter.” Fundamentally, the lists and notes were
expressions of Harris’s desires. They included no demand,
threat, or other demonstration of control over Evans. Thus,
writing a list of what Harris wanted does not establish that
he had influence or control over Evans.
Harris did play a central role in the offense by
committing the offense himself and by working with Evans
as she committed the offense, but playing a central role is
not sufficient to trigger the enhancement. See Whitney,
673 F.3d at 975 (“[E]ven a defendant with an important role
in an offense cannot receive an enhancement unless there is
also a showing that the defendant had control over others.”).
Indeed, “we do not apply the enhancement merely because a
defendant’s important role makes him integral to the success
of the criminal enterprise and gives him a high degree of
culpability.” United States v. Doe, 778 F.3d 814, 825 (9th
Cir. 2015) (internal quotations omitted).
Our precedent is clear that, without “control over
others,” a suggestion is not leadership, facilitation is not
leadership, and playing an important role is not leadership.
Avila, 95 F.3d at 892. Because there is no evidence that
Harris exercised control over Evans, the district court abused
its discretion in applying the leadership enhancement. See
Whitney, 673 F.3d at 976 (“There must . . . be evidence in
the record that would support the conclusion that the
defendant exercised the necessary level of control.”).

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II. T HE “G UARDIAN ” E NHANCEMENT UNDER U.S.S.G.
§ 2G2.1(B )(5)
The Guidelines also allow for a two-level enhancement
if the defendant “was 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.” U.S.S.G. § 2G2.1(b)(5).2 The explanatory
notes add that the enhancement:
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 would be
subject to this enhancement. U.S.S.G.
§ 2G2.1 cmt. n.5(A).
Harris was not CV’s parent, nor did he act as her legal
guardian. The crux of the enhancement otherwise turns on
whether the minor was entrusted to the defendant’s care and
on whether the defendant acted “in loco parentis”—in the
place of a parent. United States v. Swank, 676 F.3d 919, 923
(9th Cir. 2012). Acting “in the place of a parent” could take
many forms but our case law focuses specifically on whether
the defendant had “parent-like authority.” United States v.
2 Three separate sentencing Guidelines relating to abuse of minors
use the same language in their respective guardian enhancements.
U.S.S.G. § 2G2.1(b)(5) (allowing the enhancement when the victim was
“in the custody, care, or supervisory control of the defendant”); U.S.S.G.
§ 2A3.1(b)(3) (same); U.S.S.G. § 2G1.3(b)(1) (same). Because the
language is identical, we interpret the principles announced for each as
applicable to the others.

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UNITED S TATES V. H ARRIS 9
Brooks, 610 F.3d 1186, 1201 (9th Cir. 2010) (emphasis
added).
The Eighth Circuit’s decision in United States v. Blue is
instructive in understanding the enhancement. 255 F.3d 609
(8th Cir. 2001). There, the defendant had lived with the
minor and the minor’s mother for six months and considered
himself to be the grandfather. Id. at 614. At a gathering at
the minor’s house, the defendant abused the minor in the
bathroom while the mother was asleep. Id. The court held
that the enhancement did not apply because the government
failed to establish that the mother “transferred care to” the
defendant and thus failed to establish that the minor was
“entrusted to” the defendant. Id. at 614–15. Instead, the
defendant “simply took advantage of an opportunity when
the mother could not protect her child.” United States v.
Carson, 539 F.3d 611, 612 (7th Cir. 2008) (describing Blue).
Parent-like authority can be assessed by asking whether
it would have been the defendant who “would have taken
[the minor] to the emergency room, would have signed the
applicable forms, and would have requested for [the minor]
to receive treatment.” United States v. Alfaro, 555 F.3d 496,
498 (5th Cir. 2009). This heuristic illuminates the critical
distinction between mere presence that is common in many
relationships, and the parent-like authority that is necessary
for application of the enhancement. Consistent with this
distinction, the cases where we have affirmed the
enhancement typically involve a minor who was left alone
under the care of the defendant. See e.g., Swank, 676 F.3d
at 919 (affirming the application of the enhancement where
the defendant and his wife jointly agreed to take care of the
minor while the minor’s mother was out of town); United
States v. Castro-Romero, 964 F.2d 942, 944 (9th Cir. 1992)
(affirming application of the enhancement where the

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defendant was married to the minor’s mom, present at the
minor’s birth, lived with the minor, and would stay at home
alone with the minor).
In applying the enhancement, the district court relied on
two facts: Harris lived with CV for “five to eight weeks,”
and CV called Harris “dad” on at least one occasion. Based
on these limited facts, the district court concluded that there
was “enough of a trust and supervision relationship with
[CV] as to justify the imposition of the enhancement.”
The district court’s conclusion is inconsistent with the
plain language of the enhancement, the explanatory notes,
and our case law. Harris was never entrusted with parent-
like authority and never acted in loco parentis. Here, as in
Blue, Harris was never given custody or supervisory control
of CV. That differentiates Harris’s role from that of
“teachers, day care providers, baby-sitters, or other
temporary caretakers.” U.S.S.G. § 2G2.1 cmt. n.5(A).
Significantly, Harris was never even a temporary caretaker
or babysitter and Evans did not let him be home alone with
CV. Harris knew CV for less than two months and her
reference to him as “dad” is not indicative of the actual
relationship between them. Harris was proximate to CV, but
the law looks to parental authority, not proximity. The
absence of any parental authority or control dooms the
guardian enhancement both factually and as a matter of law.
CONCLUSION
Because the district court erred in applying both
enhancements and we cannot say that the court would come
to the same conclusions given the proper scope of the
enhancements, we vacate and remand for re-sentencing.

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UNITED S TATES V. H ARRIS 11
United States v. Flores, 725 F.3d 1028, 1042 (9th Cir.
2013).3
VACATED AND REMANDED FOR
RESENTENCING.
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
We review for clear error the district court’s findings that
Defendant was a “guardian” of his victim, U.S. Sent’g
Guidelines Manual § 2G2.1(b)(5), and a “leader” or
“organizer,” id. § 3B1.1(c). See United States v. Whitney,
673 F.3d 965, 974–75 (9th Cir. 2012) (holding that we
review for clear error a finding of “leadership”). In my view,
the district court’s findings are neither illogical nor
implausible, and the record provides sufficient “support in
inferences that may be drawn from the facts” to render the
findings not clearly erroneous. See United States v.
Christensen, 828 F.3d 763, 779 (9th Cir. 2015) (“A finding
of fact is clearly erroneous only where it is ‘(1) illogical, (2)
implausible, or (3) without support in inferences that may be
drawn from the facts in the record.’” (citation omitted)).
“Clear error review is deferential, and ‘[w]here there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.’” Id. (alteration
in original) (quoting United States v. Working, 224 F.3d
1093, 1102 (9th Cir. 2000) (en banc)). Under those
standards, both findings by the district court are permissible.
3 Harris also challenges his 300-month sentence as substantively
unreasonable, but because he will be resentenced, we do not decide this
issue.

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A. Guardian
In applying the enhancement under § 2G2.1(b)(5), the
district court expressly relied on the facts that Defendant had
resided with the victim and her mother for several weeks and
that the victim called Defendant “dad.” We are not limited
to considering only those facts; we may affirm for any reason
supported by the record. Whitney, 673 F.3d at 976. Beyond
the facts that the district court cited specifically, we know,
from sealed materials, that Defendant was left alone with the
victim more than once.1 In addition, when people live
together, it is reasonable to infer that the non-parent at times
is “entrusted,” § 2G2.1 cmt. n.5(A)., with a child’s care,
even if not for long periods of time—for example, when the
parent is showering or preparing a meal.
To be sure, if the non-parent is present in the home only
briefly (say, for a weekend), the relationship would be too
minimal to support this enhancement even if the non-parent
is left alone with the victim at times. I would not draw a
bright line, but here, the length of the cohabitation in
combination with the child’s reference to Defendant as
“dad” are sufficient to support application of the
enhancement.
As explained in § 2G2.1(b)(5)’s comments, the
enhancement “is intended to have broad application.” Id.
Temporary supervisory control may be inferred from the
circumstances. The enhancement applies even if the
defendant’s supervision of the child amounts to “peripheral
or transitory custody” and even if there is no legal
1 I have filed a sealed version of this dissent that references those
materials.

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UNITED S TATES V. H ARRIS 13
relationship between the parties. United States v. Wright,
540 F.3d 833, 846 (8th Cir. 2008) (citations omitted).
In my view, United States v. Blue, 255 F.3d 609 (8th Cir.
2001) (per curiam), is distinguishable. Among other things,
the Eighth Circuit relied on the absence of “any evidence that
the victim trusted Blue or perceived him as his grandfather.”
Id. at 615. By contrast, here, the victim referred to
Defendant as “dad.” The Blue court also relied on the
absence of evidence that the defendant there “had greater
access to the victim because of his relationship with the
child’s grandmother.” Id. Here, Defendant did have greater
access to the victim because he lived with the victim’s
mother. The Eighth Circuit itself has distinguished Blue in
a situation in which, among other factors, the defendant lived
with the victims and there was evidence that the victims
considered the defendant to be a “big brother.” Wright, 540
F.3d at 846. Those facts, absent in Blue, are present here.
B. Organizer
Although a defendant cannot receive a leadership
enhancement merely by playing an important role in an
offense or by suggesting that the offense be committed,
Defendant qualifies for the two-level enhancement if he was
an “organizer.” § 3B1.1(c). “A defendant ‘organizes’ other
participants if he has ‘the necessary influence and ability to
coordinate the[ir] behavior . . . so as to achieve the desired
criminal result[s].’” United States v. Holden, 908 F.3d 395,
402 (9th Cir. 2018) (alterations in original) (quoting United
States v. Doe, 778 F.3d 814, 826 (9th Cir. 2015)). A
defendant can “organize” a single codefendant. Id.
At the outset, the district court could have inferred that it
was Defendant’s idea to sexually abuse CV. He
acknowledged that he wanted to have sex with the child.

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Sealed materials buttress that inference further. Those
materials also permit the inference that Defendant
influenced the mother to allow him to abuse the victim and
thus organized and influenced her participation in the
offense. The district court did not clearly err when it
declined to take Evans’ claim that Defendant “did not
pressure her” at face value.
Similarly, the sealed materials permit the logical
inference that Defendant directed Evans’ participation in
“writing lists of deviant sexual acts and partners.” I disagree
with the majority opinion’s conclusion that writing a list “is
at most analogous to making a suggestion.” A list is an act
of organization. See List, Dictionary.com,
https://www.dictionary.com/browse/list (last visited May
25, 2021) (defining “list” as “a series of names or other items
written or printed together in a meaningful grouping or
sequence so as to constitute a record” (emphasis added)).
I do not doubt that the majority’s interpretation of the
facts is a reasonable one. But that is not the question that we
must answer. As noted above, we must uphold the district
court’s findings unless they are clearly erroneous, and the
existence of an alternative view does not make findings
clearly erroneous. Christensen, 828 F.3d at 779.
For these reasons, I respectfully dissent. I would affirm
the sentence.

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