United States v. Barberg, Peter

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER BARBERG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 91 CR 558—Charles R. Norgle, Sr., Judge.
____________
SUBMITTED SEPTEMBER 24, 2002—DECIDED NOVEMBER 26, 2002
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Peter Barberg was convicted of
two counts of sexual assault in violation of 18 U.S.C.
§§ 2242(2) & 2244(a) and sentenced to concurrent prison
terms to be followed by concurrent terms of supervised
release. At the conclusion of his prison terms in Decem-
ber 1997, he commenced his supervised release terms. In
March 1998, Barberg was arrested in Chicago for failure
to register as a sex offender under Illinois’ Sex Offender
Registration Act (“SORA”), 730 ILL. COMP. STAT. § 150/10.
Consequently, the district court revoked Barberg’s super-
vised release. Barberg disputes his duty to register under
SORA and appeals the revocation of his supervised re-
lease. Because he is clearly required to register under
SORA, and his failure to do so is adequate grounds for
2 No. 02-1001
revocation of his supervised release, we affirm the order
of the district court.
BACKGROUND
On September 29, 1989, Peter Barberg boarded an
American Airlines flight in Sacramento, California, bound
for Chicago, Illinois. During a scheduled stopover in San
Francisco, California, Barberg observed an eighteen-year-
old female board the aircraft and sit in a window seat
across the aisle and several rows behind him. Barberg
moved from his assigned seat to the unoccupied middle
seat located next to the woman. Shortly after takeoff, as
she slept, Barberg sexually assaulted her.
Barberg was charged with one count of Sexual Abuse
Aboard an Aircraft in violation of 18 U.S.C. § 2242(2) and
one count of Abusive Sexual Contact Aboard an Aircraft
in violation of 18 U.S.C. § 2244(a). A jury convicted him
of both counts on July 27, 1995, and the district court
sentenced him on January 17, 1996, to concurrent prison
terms of seventy-eight months for count I and thirty-six
months for count II and to concurrent terms of super-
vised release of three years for count I and one year for
count II.
One condition of Barberg’s supervised release was that
he abide by all lawful directions of his probation officer.
Upon Barberg’s release from prison and commencement
of his concurrent terms of supervised release, on Decem-
ber 12, 1997, the United States Probation Officer assigned
to Barberg’s case instructed him to register as a sex of-
fender in Illinois pursuant to SORA.
In March 1998, Barberg was arrested for failing to
register as a sex offender under SORA. Barberg’s probation
officer requested a rule to show cause and a warrant issue
for violation of the conditions of his supervised release,
and on March 31, 1998, the district court issued a bench
No. 02-1001 3
warrant. The state court found Barberg unfit to stand trial
for the failure to register charge and remanded him to
a state mental health facility where he was confined from
September 1998 to October 2001. On October 2, 2001,
Barberg was released into federal custody.
The district court found that Barberg violated a condi-
tion of his supervised release by failing to register as a
sex offender under SORA, as the plain language of the
statute required him to register within ten days of his
December 12, 1997, release. The district court then re-
voked Barberg’s supervised release and ordered that he
remain in the custody of the United States Bureau of
Prisons until January 2, 2002. United States v. Barberg,
Mem. Op. & Order, Dec. 10, 2001.
Barberg now appeals.
ANALYSIS
The only issue raised by Barberg on appeal is whether
SORA requires him to register as a sex offender. We review
the district court’s statutory interpretation of SORA de
novo. United States v. Lee, 78 F.3d 1236, 1239 (7th Cir.
1996).
Prior to January 1, 1996, Illinois’ Child SORA required
registration of sex offenders whose victims were minors
or who had been adjudicated as “sexual predators” or
“sexually dangerous persons.” Effective January 1, 1996,
Child SORA was renamed SORA and amended to require
registration of a broader class of sex offenders, includ-
ing those whose crimes involved adult victims.1 Section
150/3 of the revised and amended SORA, in effect at the
1
This expansion of the class of offenders required to register
applied retroactively to all sex offenders whose registration lia-
bility had not expired, pursuant to SORA § 150/7, prior to Janu-
ary 1, 1996.
4 No. 02-1001
time of Barberg’s March 1998 arrest, sets forth a sex of-
fender’s duty to register. Section 150/3(c) provides, in per-
tinent part, as follows:
(c) The registration for any person required to regis-
ter under this article shall be as follows:
(2) except as provided in subsection (c)(4), any per-
son convicted or adjudicated prior to January 1,
1996, whose liability for registration under Sec-
tion 7[730 ILCS § 150/7] has not expired, shall reg-
ister in person prior to January 31, 1996;
(3) except as provided in subsection (c)(4), any
person convicted on or after January 1, 1996, shall
register in person within 10 days after the entry
of the sentencing order based upon his or her con-
viction;
(4) any person unable to comply with the regis-
tration requirements of this Article because they
are confined, institutionalized, or imprisoned in
Illinois on or after January 1, 1996, shall register
in person within 10 days of discharge, parole or
release.
Barberg contends that he is not required to register be-
cause he was convicted prior to January 1, 1996. Specifi-
cally, he asserts, and this Court agrees, that subsection
150/3(c)(3) does not apply to his 1995 conviction. How-
ever, he is still required to register under subsection
150/3(c)(2).2
At the time of his pre-1996 conviction, Barberg’s liability
for registration had not yet taken effect, nor had it yet
2
Barberg does not explicitly contest his liability for registration
under subsection 150/3(c)(2). It appears that he has ignored this
subsection entirely.
No. 02-1001 5
expired pursuant to § 150/7.3 His liability for registra-
tion was not to expire until the ten-year anniversary of
the commencement of his concurrent terms of super-
vised release. Furthermore, due to his incarceration, sub-
section 150/3(c)(2) required him to register not by Janu-
ary 31, 1996, the date specified therein, but rather within
ten days of his release from prison as provided in subsec-
tion 150/3(c)(4), or December 22, 1997. Reading subsec-
tions 150/3(c)(2)-(4) together, it is clear that the date of
Barberg’s conviction is relevant for the purpose of deter-
mining when—not whether—he was required to register.
Understood in the context of the 1996 amendments to
SORA, the January 31, 1996, date is merely a deadline by
which offenders to whom the amended SORA applies
retroactively must register. That Barberg’s 1995 convic-
tion predates the date of applicability of subsection
150/3(c)(3) does not somehow exempt him from registration
3
As it applies to Barberg, that section provides, in relevant part,
as follows:
Sec. 7. Duration of registration. Any other person who is
required to register under this Article shall be required to
register for a period of 10 years after conviction or adjudica-
tion if not confined to a penal institution, hospital or any
other institution or facility, and if confined, for a period of
10 years after parole, discharge or release from any such
facility. Liability for registration terminates at the expiration
of 10 years from the date of conviction or adjudication if not
confined to a penal institution, hospital or any other institu-
tion or facility and if confined, at the expiration of 10 years
from the date of parole, discharge or release from any such
facility, providing such person does not, during that period,
again become liable to register under the provisions of this
Article. The Director of State Police, consistent with admin-
istrative rules, shall extend for 10 years the registration
period of any sex offender who fails to comply with the pro-
visions of this Article. 730 I.L.C.S. § 150/7.
6 No. 02-1001
under subsection 150/3(c)(2), as he would have us believe.
In short, Barberg’s argument fails due to its misplaced
reliance on a nonexistent statutory loophole.
The district court correctly determined that Barberg
is required to register under SORA and properly revoked
his supervised release. We also point out that, by the
terms of SORA § 150/7, Barberg’s failure to register may
subject him to a ten-year extension of his registration
period by the Director of State Police.
CONCLUSION
Peter Barberg’s failure to register as a sex offender with-
in ten days of the commencement of his supervised re-
lease constituted a violation of both Illinois’ Sex Offender
Registration Act and the terms of his supervised release.
We therefore AFFIRM the district court’s revocation of his
supervised release and determination that he is required
to register under SORA.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-02