Criminal Law

Dist. Ct. erred in sentencing defendant to 120-month term of incarceration on charge of failure to register as sex offender, where said sentence was based, in part, on enhancement of committing sex offense while in failure to register status under section 2A3.5(b)(1)(A) of USSG. While Dist. Ct. found that enhancement applied since defendant’s girlfriend testified that defendant had performed oral sex on her without consent, enhancement did not apply since girlfriend also testified that defendant did not use force, and applicable Illinois statutes for criminal sexual assault and abuse required proof that defendant had used force or threat of force when committing sexual act.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of gun found in defendant’s waistband, after police pulled near defendant’s car while looking for two individuals involved in recent shooting in neighborhood. Dist. Ct. could properly credit police officer’s testimony that defendant and another individual in defendant car generally matched description of shooters, and that he saw gun handle protruding from defendant’s waistband as defendant got out of car. Ct. rejected defendant’s argument that police could not have seen gun handle due to darkness. Moreover, officer had reasonable suspicion to stop and frisk defendant given description of shooter, defendant’s flight and observation of gun in defendant’s waistband.

In prosecution on drug distribution charges, Dist. Ct. did not err in denying defendant’s motion to suppress certain evidence that had been seized from apartment of defendant’s cousin pursuant to search warrant, where defendant argued that warrant was not supported by probable cause. Warrant was supported by probable cause where confidential informant, who had previously supplied police with information that had led to prior seizure of drugs, told police that: (1) he had seen individual named “Cap” in possession of ounce of cocaine; and (2) he was familiar with cocaine due to his prior involvement in sales of drugs. Moreover, defendant was listed as “Cap” in police data base, and informant confirmed that “Cap” was defendant when shown his picture. Informant also confirmed address of apartment that police later determined belonged to defendant’s cousin. Fact that informant had initially told police that cousin was defendant’s girlfriend, and/or that confidential informant had seen defendant with possession of cocaine “within past 10 days” of warrant application did not require different result.

Defendant was entitled to new sentencing hearing on his identify theft conviction, where Dist. Ct. at original hearing sentenced defendant to above-guideline sentence of 80-month term of incarceration under higher-range guidelines in effect at time of sentencing, rather than lower-range guidelines in effect at time defendant committed charged offense. While govt. urged Ct. of Appeals to retain jurisdiction of case and order limited remand for purpose of asking Dist. Ct. whether it would have imposed different sentence under lower guideline, Ct. of Appeals found that remand for new sentencing hearing was required so that Dist. Ct. can receive correct guideline advice prior to sentencing defendant.