United States v. Johnson, 13–1531.

• Decision Date: 12 February 2014
• Docket Number: No. 13–1531.,13–1531.
• Citation: 743 F.3d 196
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian D. JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

743 F.3d 196

UNITED STATES of America, Plaintiff–Appellee,

v.Brian D. JOHNSON, Defendant–Appellant.

No. 13–1531.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 2013.

Decided Feb. 12, 2014.

Matthew S. Ebert, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Thomas C. Brandstrader, Chicago, IL, for Defendant–Appellant.

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.

I. BACKGROUND

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.¹ 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 hearing. The court, exercising its authority to do so, see, e.g.,Fed.R.Evid. 614, allowed S.W. to testify.

Before S.W. took the stand, Johnson's counsel stated to the court that although he was not her lawyer, his opinion was that S.W. should speak with a lawyer before testifying because her testimony might contradict her previous notarized statement or the statement she made to a federal marshal. After S.W. confirmed on the witness stand that she wished to testify and intended to tell the truth, the judge asked S.W. if she wanted to speak to a lawyer before she testified. S.W. answered “yes.” The judge then asked her why, and she responded because of the previous statement she made, which she said was a misunderstanding. Rather than allowing her time to speak to an attorney, the court informed her that the matter had long been set and that if she intended to testify at all, she would do so that day. The court also advised her that she was not required to take the witness stand, that if she did she needed to tell the truth, and that she could be punished if she was not truthful.

S.W.'s appearance at the sentencing hearing was unexpected, and delaying a scheduled hearing is never ideal. Nonetheless, we note that in light of the decision to allow her to testify and the strong indications that she would testify in a manner contrary to her prior statements, the safer course would have been to allow S.W. time to speak to an attorney before her testimony. The court might have also inquiredof the prosecutor whether it would assure her immunity if she testified.

After being sworn, S.W. testified that on April 22, 2012, Johnson told her he was taking her to his cousin's house. When they arrived, she realized they were not at his cousin's home but at the home of the mother of several of his other children. S.W. testified that because she was jealous, she made a false report to the police. She also testified that Johnson did not rape her and that he had performed oral sex on her but had not used physical force. She said Johnson was a good father and deserved a second chance, and that she was upset she had lied.

The court then gave the prosecutor an opportunity to question S.W. That questioning went as follows:

Q. On April 22nd, 2012, did Brian Johnson force oral sex upon you?

A. I did say that he did that.

Q. You stated that because he did, in fact, force oral sex upon you?

A. Yes, I did say that. I mean, he—he didn't really use force on me. But he did force on me, but he didn't use force, like physical force.

Q. You did not want him to perform oral sex upon you, is that correct?

A. Yes, that's correct. I didn't want him doing it because I was over at his kids' mother house at that time. I did at the time. There, I didn't, no.

Q. Yet he performed oral sex upon you, is that right?

A. Yes.

On cross examination, defense counsel asked S.W. whether Johnson raped her on April 22, and she replied, “No, he didn't.” She also confirmed that she was the mother of four of his children, had prior sexual intercourse with Johnson that was all consensual, and that she had been drinking. The judge verified with S.W. that she understood the prosecutor's questions and had answered them truthfully, and her testimony ended.

Johnson's base offense level under U.S.S.G. § 2A3.5(a)(1) was sixteen because he had been required to register as a Tier III sex offender. The prosecutor requested, as it had in its sentencing memorandum, that the judge apply the six-level enhancement in U.S.S.G. § 2A3.5(b)(1)(A) for committing a sex offense while in failure to register status based on Johnson's conduct on April 22. Johnson's counsel disagreed, arguing in part that there was no sexual conduct with force as required by Illinois statute. The prosecutor made arguments in support of the enhancement but did not specifically address whether force was present. The sentencing judge credited S.W.'s testimony, found that Johnson performed oral sex on S.W. without her consent, and applied the enhancement. The judge also imposed a two-level obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. The resulting offense level of twenty-four, combined with Johnson's criminal history category of VI, yielded an advisory guideline range of 100 to 125 months. The district court sentenced Johnson to ten years' imprisonment, and he appeals.

II. ANALYSIS

Johnson argues that he should not have received a six-level enhancement pursuant to U.S.S.G. § 2A3.5(b)(1)(A) for committing a sex offense against someone other than a minor while in failure to register status. For purposes of this guideline, a “sex offense” includes “(i) a criminal offense that has an element involving a sexual act or sexual contact with another” or “(v) an attempt or conspiracy to commit an offense described in [clause] (i).” 42 U.S.C. § 16911(5); U.S.S.G. § 2A3.5(b)(1)(A) cmt. n. 1. The term “criminal offense” means a State, local, tribal, foreign, or military offense or other criminal offense. 42 U.S.C. § 16911(6).

While Johnson contends that the enhancement was unwarranted, the government maintains that Johnson committed criminal sexual assault or criminal sexual abuse in violation of Illinois law. The Illinois criminal sexual assault statute provides in relevant part that a criminal sexual assault occurs when a person “commits an act of sexual penetration” and “uses force or threat of force.” 720 Ill. Comp. Stat. 5/11–1.20.² “Sexual penetration” under the statute includes oral sex. See720 Ill. Comp....