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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT DANIEL MALSON, Defendant-Appellant.

Case No. 97-8102 (D.C. 97-CR-0006-D) (District of Wyoming)

ORDER AND JUDGMENT^(*)

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

During August of 1996, Robert Daniel Malson's 11-year-old niece spent the night at his home on several occasions. During one of these visits, while his niece slept, Mr. Malson took several photos of her genitalia. After the laboratory that processed those photos contacted law enforcement authorities, the government filed a six-count indictment against Mr. Malson. Mr. Malson subsequently pled guilty to one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251. The district court, over Mr. Malson's objection, sentenced him to 90 months imprisonment, four years of supervised release, and $1,100 in fines and special assessments. Mr. Malson now appeals only the district court's decision to apply U.S.S.G. § 2G2.1(b)(2) and, thus, enhance his sentence by two levels.

In appeals involving sentencing issues, we review legal questions de novo and accept factual findings unless they are clearly erroneous. United States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir. 1996).

U.S.S.G. § 2G2.1(b)(2) provides for a two-level sentence enhancement "[i]f 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." Mr. Malson devotes all of his briefing efforts to attempting to demonstrate that no "custodial" relationship existed between his victim and him. However, even were he to convince us that the victim was not in his custody at the time he committed the crime, nowhere in his brief does Mr. Malson contest that, at that time, the victim was his wife's sister's daughter and, hence, his niece.⁽¹⁾ Thus, although Mr. Malson was the victim's uncle by virtue of marriage rather than blood, he was nonetheless related to her. See XIII Oxford English Dictionary 551-52 (2d ed. 1989) ("relative: . . . B.3. One who is connected with another or others by blood or affinity"); XVIII id. 908 ("uncle: . . . 1.a. A brother of one's father or mother; also, an aunt's husband (= uncle-in-law)"); U.S.S.G. § 2G2.1 cmt. 2 ("Subsection (b)(2) is intended to have broad application").

We conclude that § 2G2.1(b)(2) applies to Mr. Malson because he was related to the victim and, accordingly, AFFIRM Mr. Malson's sentence.

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge

^*. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. This case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^1.Although Mr. Malson was married to the victim's aunt at the time of the crime, the couple subsequently obtained a divorce.

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