Argued November 5, 2013.
As Corrected February 13, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 00498 -- Charles R. Norgle, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Matthew S. Ebert, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For BRIAN D. JOHNSON, Defendant - Appellant: Thomas C. Brandstrader, Attorney, LAW OFFICE OF THOMAS C. BRANDSTRADER, Chicago, IL.
Before BAUER, WILLIAMS, and SYKES, Circuit Judges.
Williams, Circuit Judge.
Unexpectedly for both the government and defense counsel, Brian Johnson's former girlfriend, S.W., appeared at his sentencing hearing and stated she wanted to testify. Johnson had pled guilty to failure to register as a sex offender, and the government's sentencing memorandum requested an enhancement for committing a sex offense on the basis that Johnson sexually assaulted S.W. With neither party wishing to call her as a witness, the judge exercised his authority to call S.W. to the stand. She testified that although she did not want Johnson to perform oral sex on her on the date in question, he did anyway but did not use force. The judge relied on and believed S.W.'s testimony at the sentencing hearing when it imposed a U.S.S.G. § 2A3.5(b)(1)(A) enhancement for committing a sex offense while in failure to register status. Because the crimes of criminal sexual assault and abuse in Illinois require the use or threat of force in such a situation, Johnson should not have received the enhancement for committing a sex offense while in failure to register status. We therefore vacate Johnson's sentence and remand for resentencing.
Brian Johnson was convicted in Nebraska state court of third degree sexual assault of a child. His conviction required him to register as a sex offender under the Sex Offender Registration and Notification Act (" SORNA" ). He failed to register or report his new address after his release from prison in December 2011, and a warrant for his arrest was issued two weeks later.
On April 22, 2012, the Chicago Police Department responded to a call of an alleged sexual assault by Johnson against S.W., Johnson's former girlfriend and the mother of several of his children. She told a responding officer that Johnson dragged her to a bedroom and started taking her clothes off even though she said she did not want to have sex. She also told the officer that Johnson performed oral sex on her, and then placed his penis in her vagina while she told him " no." The police transported S.W. to a hospital. She did not press charges against Johnson, and no charges were filed.
On May 31, 2012, Johnson was arrested on the outstanding warrant, and he was charged the next month with failure to register as a sex offender under SORNA, in violation of 18 U.S.C. § 2250(a). In August 2012, S.W. signed a notarized affidavit stating that the report she made of the alleged sexual assault on April 22, 2012 was untrue.
Johnson pled guilty to the failure to register charge several months later. The probation officer's presentence investigation report (" PSR" ) stated that it was that officer's assessment that there was
not a preponderance of evidence to suggest that the alleged sexual assault against S.W. occurred. The report noted S.W. had made contradictory statements on several occasions about the alleged assault; Johnson had continuously denied the alleged sexual assault in his letters to S.W. and during recorded telephone conversations with her; there were no witnesses to the alleged assault; the incident report reflected no visible injuries, scratches or bruises on S.W.; and Johnson's letters to S.W discussed sexual events in the past and future that raised doubt for the officer as to whether the alleged sexual assault was not consensual. The PSR therefore did not assess a six-level enhancement for committing a sexual offense against someone other than a minor while in a failure to register status under U.S.S.G. § 2A3.5(b)(1)(A). The government stated in its sentencing memorandum that it would request the enhancement at the sentencing hearing.
At the sentencing hearing, although neither the government nor the defense counsel expected her or intended to call her as a witness, S.W. appeared in the courtroom and expressed her desire to testify. The prosecutor met with S.W. and then conveyed S.W.'s desire to make a statement to the court. Both parties, however, reiterated their positions that they would not be calling her as a witness in the sentencing ...