The Court of Appeals Held an Enhancement for Committing a Sex Offense While Under Failure to Register Status was Improper where the Evidence did not Support the Finding of Such Offense under State Law

Seventh Circuit Criminal Case Summaries: Sentencing - Guideline Enhancements and Adjustments - Sexual Assault while under Failure to Register Status

UnitedStates v. Johnson, No. 13-1531. Johnson was convicted of failing to register as a sex offender. At his sentencing hearing, the government asserted he should receive an enhancement under § 2A3.5(b)(1)(A) for committing a sex offense while in failure to register status. The alleged sex offense relied on by the government was Johnson’s alleged sexual assault of his former girlfriend, S.W. S.W. testified at the sentencing hearing that although she did not want Johnson to perform oral sex on her on the date in question, he did so anyway but did not use force. For the purposes of the guideline, a sex offense includes a criminal offense that has an element involving a sexual act or sexual contact with another. Because this offense happened in Illinois, Illinois law controlled. Under Illinois law, a criminal sexual assault occurs when a person “commits an act of sexual penetration” and “uses force or threat of force.” Although other states do not require force to be used or threatened, Illinois does. Because S.W.’s testimony did not support the requisite force or threat of force necessary, the enhancement under § 2A3.4(b)(1)(A) was improper.