United States v. Brian Johnson, 743 F.3d 196

Brian Johnson pleaded guilty to failing to register as a sex offender under 18 U.S.C. § 2250 after a Nebraska conviction required SORNA registration.
Police responded to an April 22, 2012 report by S.W. alleging Johnson sexually assaulted her (oral sex and intercourse); she later signed a notarized affidavit recanting that report.
No criminal charges were filed on the April 22 incident; the PSR declined to apply a six‑level U.S.S.G. § 2A3.5(b)(1)(A) enhancement because the probation officer found conflicting statements and insufficient evidence.
At sentencing, S.W. unexpectedly appeared and the district court, over counsel’s and the prosecutor’s statements that they would not call her, permitted her to testify without time to consult counsel.
S.W. testified she did not want oral sex that day, that Johnson performed oral sex on her, but twice said he did not use physical force; the district court found her credible and applied the six‑level enhancement for committing a sex offense while failing to register.
The Seventh Circuit vacated and remanded, holding Illinois criminal sexual assault/abuse requires proof of force or threat of force and S.W.’s hearing testimony did not establish that element, so the § 2A3.5 enhancement was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the § 2A3.5(b)(1)(A) enhancement was supported by proof that Johnson committed a sex offense under Illinois law (i.e., sexual act with force or threat)	Government: S.W.’s statements and testimony establish Johnson performed oral sex on her without consent, meeting Illinois offense elements and justifying the enhancement	Johnson: The Illinois offenses require proof of force or threat of force beyond mere lack of consent; S.W.’s hearing testimony did not show force or threat	Held: Enhancement improper — Illinois law requires force or threat; the district court relied only on S.W.’s testimony, which did not establish force or threat, so the enhancement cannot stand.
Whether sentencing proceedings were prejudiced by allowing unprepared witness testimony (and denying time to consult counsel)	Government: S.W.’s in‑court testimony was voluntary and credible, supplying the necessary factual basis	Johnson: Witness was unprepared, recanted prior statements, and the court should have delayed to allow counsel consultation or immunity inquiry; reliance on that testimony affected sentencing	Held: Court criticized the procedure and noted it was safer to permit counsel consultation; procedural concerns weigh in favor of remand because the improper enhancement affected substantial rights.

People v. Haywood, 515 N.E.2d 45 (Ill. 1987) (force requires more than that inherent in sexual act)
People v. Denbo, 868 N.E.2d 347 (Ill. App. Ct. 2007) (reversing where evidence insufficient to show force or threat)
People v. Wheeler, 558 N.E.2d 758 (Ill. App. Ct. 1990) (consent and prior consensual relations do not preclude sexual assault analysis)
People v. Leonard, 879 N.E.2d 414 (Ill. App. Ct. 2007) (oral sex qualifies as sexual penetration under Illinois law)
People v. Taylor, 268 N.E.2d 865 (Ill. 1971) (reversing rape conviction where evidence lacked force)
People v. Vaughn, 961 N.E.2d 887 (Ill. App. Ct. 2011) (force or threat of force may be shown by fear or presence of aggressor)
State in Interest of M.T.S., 609 A.2d 1266 (N.J. 1992) (contrasting approach: treating lack of affirmative consent as sufficient physical force)
United States v. Hines, 449 F.3d 808 (7th Cir. 2006) (government bears preponderance burden to prove sentencing enhancement)
United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013) (appellate court may correct plain error even if appellant did not timely object)
United States v. Johns, 732 F.3d 736 (7th Cir. 2013) (plain‑error standard and substantial‑rights analysis)
United States v. Jaimes‑Jaimes, 406 F.3d 845 (7th Cir. 2005) (exercise of discretion to correct sentencing errors)