Case Information
*1 Before B AUER W ILLIAMS , S YKES , Circuit Judges . W ILLIAMS Circuit Judge
. Unеxpectedly for both defense counsel, Brian former girlfriend, S.W., appeared sentencing stated wanted testify. pled guilty failure register as offender, government’s memorandum requested basis sexually assaulted With neither party wishing call witness, judge exercised his authority to call Johnson’s S.W. to stand. She testified although she did not want Johnson to pеrform oral sex her on date in question, did anyway did use judge relied and believed when imposed a U.S.S.G. 2A3.5(b)(1)(A) enhancement for committing a sex offense while in failure register status. Because crimes assault and in require in such a situation, Johnson should have received for a sex while failure register status. We therefore vacate Johnson’s sentence and remand for resentencing.
I. BACKGROUND
Brian Johnson convicted Nebraska state third degree assault a child. His conviction required him register a offender Sex Offender Registration Notification Act (“SORNA”). He failed register report his new address after his release from prison December 2011, warrant his arrest issued two weeks later.
On Chicаgo Police Department responded call alleged Johnson S.W., former girlfriend mother several his children. She told responding officer dragged bedroom started taking her clothes off even though said want sex. She also told officer her, then placed penis vagina while told him “no.” police transported hospital. She *3 3 1531 did not press charges against Johnson, and no charges were filed.
On May 31, 2012, Johnson was arrested on outstanding warrant, was charged next month with failure to register as a offender SORNA, violation U.S.C. 2250(a). In August 2012, S.W. signed a notarized affidavit stating report made alleged sexual assault 22, was untrue. pled guilty to failure to register charge several months later. probation officer’s presentence investigation report (“PSR”) stated was officer’s assessment there was not a preponderance evidence to suggest alleged sexual assault S.W. occurred. report noted S.W. had made contradictory statements several occasions about alleged assault; continuously denied alleged sexual assault letters to during recorded telephone conversations her; there were no witnesses alleged assault; incident report reflected no visible injuries, scratches bruises S.W.; letters S.W discussed sexual events past future raised doubt officer as alleged not consensual. PSR therefore nоt assess a six level enhancement a someone other than a minor while in a failure to register status U.S.S.G. 2A3.5(b)(1)(A). The government stated its sentencing memorandum would request the the sentencing hearing.
At sentencing hearing, although neither the nor defense counsel expected her intended to call her as a witness, S.W. appeared сourtroom expressed her desire to testify. prosecutor met with S.W. then conveyed desire to make a statement to court. Both parties, however, reiterated their positions they would be calling her witness hearing. court, exercising its authority to do so, see, e.g. Fed. R. Evid. allowed S.W. to testify.
Before S.W. took stand, counsel stated court although was her lawyer, оpinion S.W. should speak with lawyer before testifying because her might contradict her previous notarized statement statement she made federal marshal. After S.W. confirmed witness stand she wished testify intended tell truth, judge asked S.W. if she wanted speak lawyer before she testified. answered “yes.” judge then asked why, responded previous statemеnt made, which said misunderstanding. Rather than allowing time speak attorney, certainly be sexually assaulted even after having consensual relations same person past. See People Wheeler (Ill. App. Ct. 1990). informed her that matter had long been set and that if she intended to testify at all, she would do so that day. court also advised her that she was not required to take witness stand, that if she did she needed to tell truth, and that she could be punished if she was not truthful. appearance at hearing was unexpected, delaying scheduled never ideal. Nonetheless, we note that light decision to allow her testify strong indications that she would testify manner contrary her prior statements, safer course would have been allow S.W. time speak an attorney before her testimony. court might also inquired prosecutor would assure her immunity if she testified.
After being sworn, S.W. testified April 2012, Johnson told her he was taking her his cousin’s house. When they arrived, she realized they were at his cousin’s home but home mother several other children. S.W. testified was jealous, she made false report police. She also testified Johnson did rape he had oral had used She said good father deserved second chance, upset lied. then gave prosecutor opportunity question That questioning went follows:
Q. On 22nd, did Brian upon you? A. I say 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 on me. But he did force on me, he didn’t force, like Q. You did want him perform oral sex upon you, 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 time. There, I didn’t, no. Q. Yet he sex upon you, that right? A. Yes.
On cross examination, defense counsel asked S.W. raped Aрril she replied, “No, he didn’t.” She also confirmed was mother four children, had prior intercourse with was all consensual, had been drinking. judge verified with understood prosecutor’s questions had answered them truthfully, ended.
Johnson’s base offense level U.S.S.G. § 2A3.5(a)(1) sixteen had been required register as Tier III offender. prosecutor requested, as its memorandum, judge apply six ‐ level U.S.S.G. 2A3.5(b)(1)(A) while failure register status based conduct 22. Johnson’s counsel disagreed, arguing part there conduct required statute. prosecutor made arguments in support of enhancement specifically address present. The judge credited testimony, found Johnson without consent, applied enhancement. The judge also imposed a two level obstruction of justice enhancement pursuant U.S.S.G. § 3C1.1. The resulting offense level twenty four, combined with criminal history category VI, yielded an advisory guideline range months. district sentenced Johnson ten years’ imprisonment, he appeals.
II. ANALYSIS
Johnson argues should received a six ‐ level enhancement pursuant U.S.S.G. § 2A3.5(b)(1)(A) a offense someone other than a minor while failure register status. For purposes this guideline, “sex offense” includes “(i) a criminal offense has an element involving sexual act or sexual contact another” or “(v) an attempt or conspiracy commit an offense described [clause] (i).” U.S.C. § 16911(5); U.S.S.G. § 2A3.5(b)(1)(A) cmt. n. 1. term “criminal offense” means State, local, tribal, foreign, or military or other criminal offense. U.S.C. 16911(6).
While contends unwarranted, maintains committed criminal sexual assault criminal sexual violation law. Illinois criminal assault statute provides relevant part occurs when person “commits act penetration” “uses force.” *8 8 13 ‐ 1531 Ill. Comp. Stat. 5/11 ‐ 1.20. [2] “Sexual penetration” under the statute includes oral sex. See 720 Ill. Comp. Stat. 5/11 ‐ 0.1 (“Sexual pеnetration means any contact, however slight, between the organ … of one person and … the sex organ … of another person, or any intrusion, however slight, of any part of the body of one person … into the organ … of another person, including … cunnilingus.”); People v. Leonard 879 418 (Ill. App. Ct. 2007). A person commits criminal sexual abuse in violation of Illinois law by committing an act of sexual conduct by the of or of 720 Ill. Comp. Stat. 5/11 ‐ 1.50(a)(1). [3] “Sexual conduct” includes sex. See 720 Ill. Comp. Stat. 5/11 0.1.
In a sentencing federal like this, government bears burden of proving by preponderance of evidence is warranted. United States Hines 449 F.3d *9 9 ‐ 1531 808, (7th Cir. 2006). So the bore the burden of establishing committed offense against in violation of Illinois law, more particularly sexual act using force or thе threat of See id. ; Ill. Comp. Stat. 5/11 1.20; Ill. Comp. Stat. 5/11 1.50.
When analyzing used force, one approach might be find “force” present here some force inherently needed perform the sexual act. At least one state has taken this approach. See State Interest of M.T.S. A.2d 1266, 1276–77 (N.J. 1992) (defining “physical force” New Jersey sexual statutes “act of sexual penetration engaged defеndant without affirmative freely given permission of victim” holding physical force “extrinsic sexual act” need be shown). But Illinois, “force” within meaning criminal sexual assault does mean force inherent sexual act; more required. People v. Haywood, N.E.2d 48–50 (Ill. 1987); People Denbo (Ill. App. Ct. 2007) (stating “force” within meaning criminal sexual offenses “does mean force inherent all sexual penеtration … but physical compulsion, or threat compulsion, causes victim submit penetration or will.”).
For purposes both criminal abuse, defines “force or threat force” mean: violence or
violence, including, limited to, following situations:
10 13 1531
(1) when the accused threatens use force or violence victim or any other person, victim circumstances reasоnably believes accused has ability execute threat; or
(2) when accused overcomes victim of superior strength or size, physical restraint, or confinement.
720 Ill. Comp. Stat. 5/11 0.1. That said, “[t]here is no definite standard establishing amount of force which State is required prove show [criminal sexual assault].” People v. Vaughn , N.E.2d (Ill. App. Ct. 2011) (quoting People Bolton N.E.2d (Ill. App. Ct. 1990)). argued at propеr basis sexual conduct took place without consent. While there is no definite standard amount force needed, what is clear law at issue, must have used force or threat force order have committed sexual assault or See Ill. Comp. Stat. 5/11 1.20(a)(1); Ill. Comp. Stat. 5/11 ‐ 1.50; Denbo (reversing aggravated assault conviction after finding insufficient evidence force threat force) . Some states make crime intercourse with another without person’s consent, with showing required. See, e.g., Wis. Stat. 940.225(3) (defining crime third degree mean “sexual intercourse person without *11 11 ‐ 1531 the consent of that person”) ; see also John F. Decker & Peter G. Baroni, “No” Still Means “Yes”: The Failure of Non ‐ Consent” Reform Movement American Rape Sexual Assault Law , J. Crim. L. & Criminology 1086–90 (2011) (discussing state laws which criminalize having sexual intercourse or contact without consent). “Consent” appears Illinois statutes relevant sexual offenses, appears as defense a charge of sexual or with force or threat of force. Ill. Comp. Stat. 5/11 1.70. Illinois does not, however, have statute criminalizes sexual intercourse another adult withоut other’s consent, without more. See Decker & Baroni supra at 1085–86 & n.21 (discussing Illinois other states “do not have any non consent sex offenses”). Therefore, district court’s finding without consent not sufficient support enhancement.
And district find used force or threat of But we explained, Illinois offenses require such showing. The points out force can be found statements from pre ‐ date the sentencing hearing, and it argues that the district court relied at least part on documents containing these statements when it imposed the six level enhancement. There is evidence the record to support that. district court never mentioned any S.W.’s prior statements to the police federal marshal as it cоnsidered whether to impose the enhancement. Rather, the sentencing hearing transcript reflects that the district court found testimony at the hearing credible that imposed the enhancement based on testimony. After her testimony parties’ arguments enhancement warranted, judge stated: issue what happened on April 22nd becomes
clear now Court has heard testimony Ms. W. here today. She came before Court having been subpoenaed, compelled be here, came insisted on taking witness stand … . asked her very specific questions. She gave very specific answers … . What ultimately testified today is consent oral upon her defendant, Brian D. Johnsоn. She made statement oath. It is Court determine credibility witness this hearing. I listened her very closely, observed her witness stand, opportunity judge her demeanor, I find this issue what occurred 22nd, credible witness. And defendant upon her will without consent. And objection six level overruled.
The prosecutor then asked clarification from court, noting that probation officer had recommended enhancement. judge’s response—“The probation department did not have benefit what occurred [this] morning did not, course, hear testimony Ms. [W.] oath”—further demonstrates that judge was imposing based only on S.W.’s testimony at hearing.
So judge believed relied on S.W.’s hearing testimony imposing enhancement. And there nothing hearing testimony from which one can find that Johnson used force threat S.W. testified at hearing Johnson did not rape her. She testified that while Johnson did perform oral sex on her, “he didn’t, like, use physical force on me.” Then, when prosecutor got up examine S.W., his first question was whether Johnson forced oral sex on her. S.W. replied only she “did say he did that.” prosecutor then asked if she stated because Johnson did, fact force oral sex upon her, which S.W. replied, “Yes, I did say that. I mean he—he didn’t really force on me. But he did force on me, he didn’t force me, like force.” prosecutor next asked S.W. she wanted perform oral her, said not she was at home children’s mother.
While may wanted perform her, would support finding used any doing so. Cf. People Taylor (Ill. 1971) (reversing rape conviction finding although act “revolting,” done force). In fact, ‐ specifically stated two different parts of testimony that he did not use force. Her statement that “he didn’t really use force on me. But did force on me, but he didn’t forсe on me, like physical force” is confusing, light of its internal contradiction, it is not enough support conclusion that Johnson used or threatened force 22. And, any event, district not find that used or threatened
That is not say that requisite force must be force; need not be. Here, though, there indication from S.W.’s testimony, example, felt ovеrcome by Johnson’s superior size or strength, or felt physically restrained or confined, cf. Ill. Comp. Stat. 5/11 0.1, or was fearful or scared of Johnson, cf. Vaughn (finding use of force or threat of force present where “the evidence clearly shows year old girl was overcome fear sheer presence of father offenses resistance need been established order demonstrate of force or threat force”). And while there may be some situations where finding lack consent indicates defendant used force or threat force, here S.W.’s testimony— testimony upon which enhancement based— does do so.
Because S.W.’s does support requisite nеcessary find committed law, U.S.S.G. 2A3.5(b)(1)(A) improper. Although Johnson’s appellate brief focused credibility rather than element force, even if standard review plain error, case must be *15 15 13 ‐ 1531 remanded for resentencing. Cf. United States v. Goodwin , F.3d 511, (7th Cir. 2013) (“[W]hen appeal appeals notices plain error, it can reverse even if appellant drawn error court’s attention.”) (citation omitted). error plain, we discussed. It affected Johnson’s substantial rights resulted improper, increased, guidelines range. See United States v. Johns F.3d (7th Cir. 2013). Without six level enhancement, Johnson’s advisory guideline range would been months; it, range 100–125 months. We believe error impacted fairness proceedings, noting raised lack hearing, we exercise our discretion сorrect error. See United States Jaimes Jaimes F.3d (7th Cir. 2005). has therefore met requirements for plain error, we vacate his sentence remand for resentencing without six level enhancement.
III. CONCLUSION sentence V ACATED case R EMANDED further proceedings.
Notes
[1] While we understand probation officer have made these comments part assessment all circumstances, we make a few things clear. While there were witnesses, corroboration is not necessary prove Illinois; victim’s is enough. People v. Schott N.E.2d 696–97 (Ill. 1991). In addition, lack injury dispositive; “[p]hysical injury resistance necessary prove victim forced intercourse, victim need subject herself serious bodily harm resisting … .” People Bowen (Ill. App. Ct. 1993). And one can
[2] statute provides other means of committing criminal sexual assault well, but does contend those apply hеre. Criminal sexual also occurs when defendant commits an act of penetration knows victim is unable understand nature of act is unable give knowing consent; or is family member of victim, victim is under years of age; or is years age or over holds position trust, authority, or supervision relation victim, victim is least years age years age. Ill. Comp. Stat. 5/11 1.20(a)(2)–(4). Although testified been drinking there is no suggestion unable understand nature act unable give knowing consent.
[3] A person can also commit act conduct knowing “the victim is unable understand nature act unable give knowing consent.” Ill. Comp. Stat. 5/11 1.50(a)(2). There suggestion this provision applies this case.
[4] Wisconsin defines “consent” mean “words or overt actions by person who competent give informed consent indicating freely given agreement intercourse or sexual contact.” Wis. Stat. 940.225(4).
[5] statute defines “consent” mean “a freely given agreement act penetration or conduct question.” Ill. Comp. Stat. 5/11 1.70(a). statute further states: “Lack verbal resistance or submission by victim resulting from accused shall constitute consent. manner dress victim time shall constitute consent.” Id.