United States v. Hill

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3766

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

W ALTER D. H ILL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cr-30116-MJR-1—Michael J. Reagan, Judge.

A RGUED M AY 2, 2011—D ECIDED JULY 5, 2011

Before P OSNER, K ANNE, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Walter Hill, in his capacity

as deputy liquor commissioner for East St. Louis,

Illinois, exerted his position and authority to demand

bribes, property, and, in at least one instance, sexual

favors from liquor license holders. He pleaded guilty to

attempting to commit extortion under color of official

right in violation of 18 U.S.C. § 1951 and making false

statements to the Federal Bureau of Investigation and

2 No. 10-3766

the Internal Revenue Service in violation of 18 U.S.C.

§ 1001(a)(2). The district court sentenced Hill to sixty

months’ imprisonment. In sentencing Hill, the district

court determined that he was subject to a four-level

upward adjustment under U.S.S.G. § 2C1.1(b)(3) for

conduct by a public official in a high-level decision-

making or sensitive position. The district judge assigned

Hill a total offense level of 22 and with no criminal

history points, that placed him in a guideline range of 41

to 51 months’ imprisonment. The court, however, found

that aggravating facts required a sentence above the

guideline range and stated that even without a guide-

line range, it would have entered the same sixty-month

sentence based upon its review of the relevant 18 U.S.C.

§ 3553(a) factors.

Hill appeals his sentence, arguing that the district

court erred in applying the four-level enhancement

because he is neither a high-level decision-maker nor an

occupant of a sensitive position. He further argues that

his role as deputy liquor commissioner and assistant to

the mayor is not sufficiently similar to the enumerated

examples cited in U.S.S.G. § 2C1.1 cmt. n.4(B) to permit

application of the sentencing enhancement. Finding

no error in the district court’s application of the enhance-

ment or imposed sentence, we affirm.

I.

Hill was a campaign organizer and political fundraiser

for Alvin Parks while Parks was a candidate for the

office of mayor of East St. Louis. Hill had also been Parks’

No. 10-3766 3

fraternity brother in college. After Parks won the elec-

tion in April 2007, he created a new position of deputy

liquor commissioner and appointed Hill to that position,

even though Hill had no experience in city administra-

tion or liquor licensing. Hill also served as the mayor’s

assistant; he appeared on the mayor’s behalf at

functions that the mayor was unable to attend and con-

ducted fundraising on the mayor’s behalf for certain

charitable events.

Illinois law details the authority, duties, and limitations

of the local liquor control commissioner (the mayor or his

designee). See 235 Ill. Comp. Stat. 5/4-2. The mayor “may

appoint a person . . . to assist him in the exercise of the

powers and the performance of the duties” as local liquor

commissioner. Id. The commissioner has the power to

grant, suspend, or revoke licenses, enter or authorize

any law enforcement officer to enter a licensed premises

to determine whether the provisions of the Act have

been violated, receive local license fees, and levy fines.

Id. at 5/4-4. He may also examine a license applicant

under oath, examine the applicant’s books and records,

and issue subpoenas. Id. at 5/4-5.

The commissioner may revoke or suspend a license

“if he determines that the licensee has violated any of

the provisions of this Act or any valid ordinance . . . .” Id.

5/7-5. “In addition to the suspension, the local liquor

control commissioner . . . may levy a fine on the licensee

for such violations.” Id. The commissioner must hold a

public hearing before revoking or suspending a license

or assessing a fine, unless he has reason to believe that

4 No. 10-3766

any continued operation of a particular licensed premises

will immediately threaten the welfare of the community.

Id. The commissioner’s decision to levy a fine, refuse

to grant a license, or revoke or suspend a license is

subject to appeal to the Illinois Liquor Control Com-

mission and subsequent judicial review. Id. 5/7-9 and 5/7-

11. While the appeal is pending, the licensee can re-

sume operation of the business. Id. 5/7-9.

The mayor granted Hill, as deputy liquor commissioner,

the authority to accept and review applications for

liquor licenses and to conduct background checks on

applicants. Hill also had the authority to conduct on-site

inspections of businesses that held liquor licenses and

issue citations for liquor code violations based upon

his interpretation of the code. Although the mayor had

ultimate authority for the issuance and renewal of

licenses, Hill oversaw and had substantial influence

over the process. He told special agent Joe Murphy of

the FBI that he handled the liquor licensing for the city

because “the [m]ayor does not really know what he is

doing in reference to liquor licenses.” He indicated that

the mayor was reliant on him to perform all licensing

functions. The mayor provided no meaningful super-

vision over Hill in the execution of his duties.

Hill pleaded guilty to misusing the authority of his

office to solicit and obtain money and property and

request sexual favors from liquor license holders. He

extorted money from Omar Shehadeh, who operated a

liquor and convenience store. Hill knew that Shehadeh,

an immigrant, was illegally in the United States, and

No. 10-3766 5

he threatened to close down Shehadeh’s business for

code violations unless he paid Hill $5,000. Shehadeh

contacted federal authorities, who, with the use of audio

and video devices, recorded Hill’s extortion attempts.

After the extortion funds were paid in full, Hill, by with-

holding a liquor license, attempted to convince Shehadeh

to purchase an overpriced building in East St. Louis,

open a new store, and give Hill a cut of his profits.

Shehadeh eventually obtained his liquor license by

paying Hill $2,080, which was $1,380 above the $700

license renewal cost. Hill kept the additional cash and

renewed the license under a third party’s name because

of Shehadeh’s immigration status.

There was also evidence that Hill requested money

from other liquor license holders and obtained money

from at least one licensee after threatening to cite code

violations. Hill also falsely informed other business

owners that the renewal cost of their licenses had

increased by $200. He further abused his position by

demanding free drinks from local liquor establishments

and taking bottles of alcohol from behind the bar. At one

adult entertainment establishment, Club 64, Hill acted

in much the same way by throwing around his position

as deputy liquor commissioner and asking for money,

free liquor (sometimes taking full bottles), and lap

dances. Club 64 is operated by Frank Marsala and his

daughter Jody, who both felt compelled to accede to

Hill’s demands because of his position and authority

over their liquor license. Jody testified that Hill locked

her in his office and tried to obtain sexual favors from

her while engaging in lewd behavior (he had his hands

6 No. 10-3766

down his pants) in exchange for renewal of her license.

Because she rebuffed his advances, Hill didn’t issue her

the license that day. Jody’s father had to go back a few

days later to obtain the license renewal. (The district

court credited Jody’s testimony.) The Marsalas didn’t

complain about Hill’s behavior for fear of losing their

liquor license and ability to earn a living.

II.

When reviewing a sentence, regardless of whether the

sentence is inside or outside the Guidelines range, we

must “first ensure that the district court committed no

significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the

chosen sentence . . . .” United States v. Abbas, 560 F.3d 660,

666 (7th Cir. 2009) (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). Although the Guidelines are advisory, the

Supreme Court has stressed that district courts must

treat them as “the starting point and the initial bench-

mark.” Gall, 552 U.S. at 49. The sentencing judge

must, therefore, “first correctly calculate the advisory

guideline range and then, based on the sentencing

factors set out in 18 U.S.C. § 3553(a), decide whether to

impose a sentence within that range.” United States v.

Nelson, 491 F.3d 344, 347 (7th Cir. 2007). Once we are

convinced that the sentencing judge followed correct

procedure, we then consider the substantive reasonable-

No. 10-3766 7

ness of the sentence. United States v. Jackson, 547 F.3d

786, 792 (7th Cir. 2008). The sentencing court must not

presume that a within-Guidelines sentence is reasonable,

but must apply the factors set forth in 18 U.S.C. § 3553(a)

in determining a reasonable sentence that is “sufficient,

but not greater than necessary . . . .” United States v. John-

son, 635 F.3d 983, 988 (7th Cir. 2011) (quoting 18 U.S.C.

§ 3553(a)).

Errors in calculating the advisory guideline range are

subject to harmless error analysis. Abbas, 560 F.3d at 667.

Harmless error review “removes the pointless step of

returning to the district court when we are convinced

that the sentence the judge imposes will be identical to

the one we remanded.” Id. It is critical on review to

first understand what the correct Guidelines sentence

should be even if we are certain that the sentence

imposed in the district court would have been the same

absent the error. Id. “The correct sentence provides the

launching point for our review under [the] substantive

reasonableness prong.” Id. Accordingly, we initially

address the district court’s calculation of the Guidelines

and application of the U.S.S.G. § 2C1.1 enhancement.

A.

After considering sentencing testimony, the district

court applied a four-level upward adjustment to Hill’s

sentence under U.S.S.G. § 2C1.1(b)(3). Pursuant to that

Guideline section, a defendant convicted of “soliciting,

or receiving a bribe” is subject to a four-level increase

“[i]f the offense involved . . . any public official in a high-

8 No. 10-3766

level decision-making or sensitive position . . . .” U.S.S.G.

§ 2C1.1(b)(3). The commentary defines “[h]igh-level

decision-making or sensitive position” as “a position

characterized by a direct authority to make decisions for,

or on behalf of, a government department, agency, or

other government entity, or by a substantial influence

over the decision-making process.” Id. at cmt. n.4(A).

The commentary provides examples of public officials

in high-level decision-making positions: “a prosecuting

attorney, a judge, an agency administrator, and any

other public official with a similar level of authority.” Id.

at cmt. n.4(B). The commentary similarly provides ex-

amples of public officials who hold sensitive positions:

“a juror, a law enforcement officer, an election official,

and any other similarly situated individual.” Id.

The district court found that Hill qualified for the

adjustment. The court acknowledged that Hill didn’t

establish liquor law policy or liquor commissioner

policy, nor did he supervise other employees, but

found that he qualified for the enhancement because

he exercised substantial influence over the decision-

making process. The sentencing judge found, based on

testimony at the hearing, that “Hill was the [m]ayor’s

eyes and ears on liquor in the East St. Louis area,” and

the “[m]ayor basically deferred to him . . . so everything

went through . . . Hill.” The judge also found that Hill

“had the authority to recommend to the [m]ayor, who

apparently listened to him, as to who should and

should not get a license in the first instance or have

one renewed after that.” The court explained that Hill

“was the primary individual responsible for . . . overseeing

No. 10-3766 9

the process of renewing liquor licenses[, and] exercised

an inordinate amount of discretion over the licensing

of liquor establishments and the renewal of those licenses.”

The district court determined that Hill’s position reg-

ulating liquor licensing was a sensitive position com-

parable to law enforcement function. The court found

that Hill had authority to enforce the liquor laws of East

St. Louis and the state of Illinois. He wore a badge and

had the authority to direct license holders to make

changes within their establishments to comply with the

liquor code. He also had the authority to cite businesses

with violation reports, which triggered a disciplinary

procedure that could result in sanctions. The court

found Hill’s authority significant given that liquor li-

censing directly pertains to the licensees’ ability to earn

a living.

Hill objects to application of the sentencing enhance-

ment on several grounds. First, he contends that the

district court erred in finding that he had actual

authority over the granting or renewal of licenses, and

maintains that his responsibilities as appointed official

were clerical at most. Second, Hill argues that the

district court’s legal conclusions that Hill was a high-

level decision-maker and occupant of a sensitive position

are erroneous. Finally, Hill argues that his position must

be similar in kind to those enumerated in comment

note 4 and because his office (and the authority it pro-

vided) was not similar to the enumerated examples, it

was excluded by the Sentencing Commission. He con-

tends that just as application of the Armed Career Crimi-

10 No. 10-3766

nal Act is limited to those offenses involving a certain

degree of purposeful violence, the Commission’s ex-

amples in comment note 4 included only those officials

with the ability to deny another a significant right or

adversely impact such a right. We take each argument

in turn.

Hill argues that the district court erred in finding that

he had actual authority over the issuance and renewal of

licenses. We review a district court’s factual findings at

sentencing for clear error. United States v. Berry, 583

F.3d 1032, 1034 (7th Cir. 2009); see also United States

v. Diekemper, 604 F.3d 345, 353 (7th Cir. 2010). Factual

findings are clearly erroneous only if we are firmly con-

vinced after we review all of the evidence that a

mistake has been made. United States v. Wilson, 437 F.3d

616, 621 (7th Cir. 2006).

The district court acknowledged that it was Hill’s

actual, and not apparent, authority that was relevant for

purposes of the enhancement. The district court found

that Hill actually had substantial influence over the

licensing process. This finding wasn’t clearly erroneous;

there was more than sufficient testimony on which

the district court could have based its determination.

The record shows that Hill and the mayor were friends

(going back to their college fraternity days) and Hill

assisted the mayor, at times standing in his place at

events. Once in office, the mayor extended his friend a

benefit by creating a position of deputy liquor commis-

sioner and appointing Hill to that position, even though

Hill had no background to support his placement in

No. 10-3766 11

that position. As deputy liquor commissioner and the

mayor’s assistant, Hill had de facto authority and power

to deny renewal of licenses, inspect and review license

holders’ businesses and records, and issue citations for

liquor code violations. The district court credited Hill’s

statement to agent Murphy that he handled the liquor

licensing for the city because “the [m]ayor does not really

know what he is doing in reference to liquor licenses.”

Even if the mayor had the ultimate authority over the

licensing process and signed the liquor licenses, the

evidence revealed that he didn’t provide meaningful

supervision over Hill in the execution of his duties. As

a result, Hill was able to blatantly flaunt and misuse

his power for personal benefit. The court’s conclusion

that Hill “exercised an inordinate amount of discretion

over the licensing of liquor establishments and the

renewal of those licenses” wasn’t erroneous.

We next address Hill’s argument that the sentencing

court erred in applying the U.S.S.G. § 2C1.1(b)(3) offense-

level enhancement to these factual findings. We review

judicial application of the Guidelines to factual findings

under the de novo standard. United States v. Taylor,

637 F.3d 812, 817 (7th Cir. 2011). When interpreting the

Guidelines, we “begin with the text of the provision and

the plain meaning of the words in the text.” United States

v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (quota-

tion omitted). “In addition to the actual language of the

Guidelines, we must also consider the Guidelines’ Ap-

plication Notes, as they are viewed as part of the Guide-

lines themselves, and not mere commentary on them.” Id.

(quotations omitted); see also Stinson v. United States,

12 No. 10-3766

508 U.S. 36, 38 (1993) (“[C]ommentary in the Guide-

lines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a

federal state, or is inconsistent with, or a plainly

erroneous reading of, that guideline.”).

The commentary defines “[h]igh-level decision-making

or sensitive position” as “a position characterized by . . .

a substantial influence over the decision-making pro-

cess.” U.S.S.G. § 2C1.1(b)(3) cmt. n.4(A). Because we

find that the district court properly determined that Hill

held a sensitive position, we don’t have to reach the

question of whether he was also a high-level decision-

maker. In United States v. Reneslacis, 349 F.3d 412, 415

(7th Cir. 2003), we considered whether an Immigration

and Naturalization Service district-adjudications officer

qualified as either a high-level decision-maker or held a

sensitive position. Id. We initially observed that the

district-adjudications officer didn’t supervise any em-

ployees, make public policy, stand in the shoes of a

policymaker, or influence policymakers. Id. at 415-16. The

officer occupied the first level of intake for applicants

seeking to change their immigration status. Id. at 416. He

made decisions largely by checking applicants’ qualifica-

tions against predetermined criteria. Id. We noted, how-

ever, that the enhancement not only refers to “high-level”

officials but also to officials who hold “sensitive” positions.

Id. Although the officer didn’t have a “particularly lofty

position within the INS, he did hold a sensitive post.” Id.

We reasoned that “[b]ecause only a handful of his deci-

sions were ever reviewed, he had near total control over

who could become a permanent resident and eventually

No. 10-3766 13

a U.S. citizen.” Id. We further noted that the officer

could subpoena witnesses, take testimony, and perform

other quasi-judicial functions. Id. Based on such facts,

we found that the district court had properly applied

the enhancement. Id.

The district court’s findings in this case similarly

support its conclusion that Hill was in a sensitive posi-

tion given his relationship with the mayor and authority

as deputy liquor commissioner. Courts have found the

enhancement appropriate based on the official’s ability

to use his position to influence another in the exercise

of his discretion. See, e.g., United States v. ReBrook, 58 F.3d

961, 970 (4th Cir. 1995) (finding that part-time attorney

for state’s lottery commission held sensitive position

based on his relationship to director of lottery commis-

sion, the advice he gave him, the influence he had

with other lottery commission members, and the fact

that he was privy to confidential information), abrogated

on other grounds by Neder v. United States, 527 U.S. 1

(1999); United States v. Tomblin, 46 F.3d 1369, 1391 (5th

Cir. 1995) (“A senator’s top administrative aide holds a

position of substantial influence, because he often serves

as the senator’s functional equivalent.”). The district

court properly found that Hill was subject to the enhance-

ment based on his position and substantial influence

over the decision-making process.

And if that wasn’t enough, the district court’s finding

that Hill was in a similar position to a law enforce-

ment officer was well supported by the record. Prior to

November 2004, the commentary to § 2C1.1 used “supervi-

14 No. 10-3766

sory law enforcement officers” as an example of public

officials who held sensitive positions. U.S.S.G. § 2C1.1

cmt. n.1 (2003) (“ ‘Official holding a high-level deci-

sion-making or sensitive position’ includes, for example,

prosecuting attorneys, judges, agency administrators,

supervisory law enforcement officers, and other govern-

mental officials with similar levels of responsibility.”)

(emphasis added) (This was the commentary in effect at

the time Reneslacis was decided.) The Commission

amended the Guidelines and commentary in 2004 by

lowering the enhancement from eight to four levels,

dropping the word “supervisory” from its reference to

law enforcement officers, and adding the current defini-

tion of sensitive position. See U.S.S.G. § 2C1.1(b)(3) &

cmt. n.4. These changes signify an intent to encompass

more public officials within the ambit of the enhancement.

Hill may not have held a supervisory position, but

he had authority to oversee the licensing process and

enforce the liquor code. He made his authority

known to licensees by prominently wearing his badge

and flaunting his title. In accordance with the statutory

authority delegated by the mayor, Hill could issue sub-

poenas, conduct on-site inspections of businesses to

determine their compliance with local ordinances,

and issue citations for violations. Hill also had de facto

authority over the denial, suspension, and revocation

of licenses. Although his actions were subject to review

on appeal, this didn’t negate Hill’s sensitive position,

just as review of an arrest by a police officer by way

of a probable cause hearing or trial doesn’t negate an

officer’s sensitive position. Hill’s actions impacted

No. 10-3766 15

sensitive rights of license holders and his decisions were

binding if not appealed. Thus, Hill’s authority, granted

to him by the mayor, was similarly aligned with that of

a police officer whose decisions are subject to review.

Liquor license holders, such as the Marsalas, were legiti-

mately reluctant to confront Hill for fear of losing

their liquor license. Accordingly, we conclude that Hill

was in a sensitive position within the meaning of the

guideline.

Hill makes the argument that the four-level enhance-

ment cannot apply because the nature of his office is not

similar in kinds to those examples enumerated by the

Sentencing Commission. We have already concluded

that the district court didn’t error in determining that

Hill held a position similarly situated to that of a law

enforcement officer—one of the enumerated examples.

See U.S.S.G. § 2C1.1 cmt. n.4(B). Hill, however, cites to

Begay v. United States, 553 U.S. 137, 142 (2008) in support

of his argument that the Commission’s inclusion of enu-

merated examples serves to limit the scope of the en-

hancement to include only those officials whose

function may have an impact upon significant rights,

such as the right to a fair trial, the right to vote, or the

right to be free of unlawful restraint.

Hill’s reliance on Begay is misplaced. Begay involved

interpretation of the Armed Career Criminal Act

(ACCA), which imposes a mandatory 15-year prison

term upon a felon who unlawfully possesses a fire-

arm and who has three or more prior convictions for

committing certain drug crimes or “a violent felony.”

16 No. 10-3766

18 U.S.C. § 924(e)(1). The ACCA defines “violent felony”

as, inter alia, a crime punishable by more than one year’s

imprisonment that “is burglary, arson, or extortion,

involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to

another.” Id. § 924(e)(2)(B)(ii) (emphasis added); see also

U.S.S.G. § 4B1.2(a)(2) (nearly identical Guideline provi-

sion). In Begay, the Supreme Court held that the provi-

sion’s listed examples illustrate the kinds of crimes that

fall within the scope of the residual clause (“otherwise

involves conduct . . . .”). See 553 U.S. at 142.

We have previously construed and denied similar

arguments raised by defendants relying on the statutory

interpretation in Begay. In United States v. Taylor, 620

F.3d 812, 813 (7th Cir. 2010), the defendant objected to

the district court’s enhancement for using physical re-

straint to facilitate the commission of the offense, see

U.S.S.G. § 1B1.1 cmt. n.1(K). The defendant in that case

argued that pursuant to Begay, the examples of “physically

restraining” in the commentary—“tied, bound, or locked

up”—served to limit application of the enhancement

and excluded his conduct—pointing a gun at a bank

teller to control her movement. Id. at 813-14. We dis-

agreed. We noted “that a statutory list of examples

of conduct that violates the statute can be a clue to the

statute’s intended scope.” Id. at 814. We then reasoned

that the essential character of conduct subject to the

physical-restraint guideline is depriving a person of his

freedom of physical movement, which can be accom-

plished by means other than creating a physical barrier

to movement. Id.

No. 10-3766 17

We applied that same reasoning in United States v.

Landwer, 2011 WL 1585080, at *2-3 (7th Cir. Apr. 28, 2001),

where the defendant challenged his sentencing enhance-

ment for using “sophisticated means” to perpetrate a

scheme, see U.S.S.G. § 2B1.1 cmt. n.8(B). Landwer similarly

argued that in accord with Begay, the examples in the com-

mentary should serve as a limitation on the meaning of

“sophisticated means.” Id. at *2. Citing Taylor, we stated

that the essential character of the listed examples is

ascertained “by looking to interpretations or factual

similarities present in our past decisions.” Id. at *3.

Under that approach, we held that the defendant’s “in-

terpretation of sophisticated means—which confines the

guideline’s application to crimes that use uncommon

resources or are nearly untraceable—appears too nar-

row.” Id.

Our holding in Taylor was reinforced by Sykes v. United

States, ___ U.S. ___, 2011 WL 2224437, *6 (June 9, 2011),

which clarified that the offenses enumerated in

§ 924(e)(2)(B)(ii) “provide guidance” in determining

which conduct falls within the residual clause. In Sykes,

the defendant argued that the Court’s decision in

Begay required ACCA predicates to be purposeful,

violent, and aggressive. The Court disagreed, reasoning

that the phrase ‘ “purposeful, violent, and aggressive’

has no precise textual link to the residual clause, which

requires that an ACCA predicate ‘otherwise invovl[e]

conduct that presents a serious potential risk of physical

injury to another.’ ” Id. at *8. The Court concluded that

the residual clause imposes enhanced punishment

when the relevant prior offenses involved a potential

18 No. 10-3766

risk of physical injury similar to that presented by the

enumerated offenses. Id. at *10.

The commentary at issue here provides examples of

officials in “sensitive positions” and includes “any other

similarly situated individual.” U.S.S.G. § 2C1.1 cmt. n.4(B)

(emphasis added). Hill’s limiting interpretation of the

commentary is neither in line with the Commission’s use

of the word “any,” which indicates a broad inclusion

of similarly situated individuals, nor other provisions

of the commentary, which expressly decline to narrowly

construe U.S.S.G. § 2C1.1. See U.S.S.G. § 2C1.1 cmt. n.1

(“ ‘[P]ublic official’ shall be construed broadly.”); Id. at

cmt. background (“The object and nature of a bribe

may vary widely from case to case . . . consequently, a

guideline for the offense must be designed to cover

diverse situations.”). The enumerated examples are not

categories and not intended to be exhaustive. Cf. United

States v. Harris, 490 F.3d 589, 595 (7th Cir. 2007) (applying

a broad definition to “financial institution” for purposes

of the enhancement in U.S.S.G. § 2B1.1(b)(13)(B)(i),

and noting that “the list of financial institutions in the

Guidelines note is non-exhaustive and contains a catch-

all provision that requires that ‘any similar entity’ be

considered a financial institution”); United States v.

Ferrera, 107 F.3d 537, 541 (7th Cir. 1997) (finding that

examples in U.S.S.G. § 2F1.1 cmt. n.4 were not intended

to be exhaustive). The commentary requires a flexible

approach in applying the enhancement to varying

factual situations, and the examples demonstrate

the Commission’s intent to apply the enhancement to

a range of public officials with varying responsibilities.

No. 10-3766 19

Hill’s limiting interpretation of the enhancement—that

it only applies to positions impacting fundamental

rights—isn’t supported by the text of the commentary or

cases applying the enhancement. See, e.g., United States v.

Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) (finding that

supervisory engineer for Navy who was on the contract

award review panel was in a sensitive position because

he made recommendations to Navy officials on large

procurements and had considerable discretion and in-

fluence in these matters); see also ReBrook, 58 F.3d at 970

(finding that part-time attorney for state’s lottery com-

mission held sensitive position when he used confidential

information to purchase shares in a company that would

be awarded a state contract). Because such a limitation

has no textual link, we decline to read it into the com-

mentary. See, e.g., Sykes, 2011 WL 2224437, at *9 (stating

that the phrase “purposeful, violent, and aggressive”

has no precise textual link to ACCA’s residual clause).

The district court properly found that Hill’s position

impacted applicants’ ability to obtain and renew licenses.

His de facto authority to deny license applications or

suspend licenses (even if temporary and subject to re-

view), could significantly impact businesses’ ability to

operate and earn revenue. This authority placed Hill in

a sensitive position.

B.

The district court properly calculated the guideline

range and then exercised its discretion to apply an above-

guideline sentence. “We review the substantive reason-

20 No. 10-3766

ableness of a sentence for an abuse of discretion, even

when it is outside the guidelines.” United States v.

Courtland, Nos. 10-2436, 10-2468, 10-2469, ___ F.3d ___,

2011 WL 1565461, at *4 (7th Cir. Apr. 27, 2011). “A sentence

is reasonable if the district court properly calculated

the guidelines range and then exercised appropriate

discretion in applying the factors specified in 18 U.S.C.

§ 3553(a).” United States v. Vaughn, 614 F.3d 412, 414

(7th Cir. 2010). The court can “impose a sentence outside

the guidelines range so long as the judge explains why

that sentence is appropriate under § 3553(a).” Id. at 415.

Hill doesn’t challenge the court’s application of the

§ 3553(a) factors and the judge’s explanation was more

than adequate to justify Hill’s sixty-month sentence.

The district judge properly calculated Hill’s guideline

range at 41 to 51 months’ imprisonment and concluded

that a higher sentence was necessary to account for the

considerations relevant under § 3553(a). The court first

pointed to the widespread corruption in East St. Louis

and the need to deter future public corruption. It then

pointed out that Hill made misrepresentations on his

unemployment compensation form; he stated falsely

that he was unaware of why he had been discharged

from office. The district court found it significant that

Hill continued to collect unemployment while he was

under federal investigation and even after he pled guilty.

The court next addressed Hill’s use of his position to

engage in the egregious conduct of soliciting sexual

favors as a precondition of licensing. The court reasoned

that “[t]his perversion is unaddressed by the guidelines

which tend to be economic[ally] oriented.” Finally, citing

No. 10-3766 21

U.S.S.G. § 2C1.1 cmt. n.7, the court found that Hill’s

conduct was part of a systematic or pervasive corrup-

tion of a government office, noting again the extensive

corruption in East St. Louis and the resulting loss of

public confidence in government officials. The court

also cited certain mitigating factors, such as Hill’s educa-

tion (he held a master’s degree), lack of criminal history,

age (32 years old), repeated blood donorship (Hill

donated blood thirty-seven times over the course of

seven years, improving the health of a young man who

had sickle cell anemia), and his difficult formative

years (his father was murdered when he was three and

he grew up in public housing), but found that this was

a serious crime that required a sentence sufficient for

individual and general deterrence. The court then

found that a sixty-month sentence was sufficient, but not

greater than necessary, to meet the purposes of § 3553(a).

The district judge provided a model statement of all the

reasons that justify this modest sentence for the blatant

abuse of power by a significant official in a corrupt area

of Illinois. The court’s sentencing considerations were

proper, and together constituted permissible rationale

for imposing this reasonable above-guidelines sentence.

C.

As a final matter, we note that even if the district court

had miscalculated the guidelines, any such error would

have been harmless. “To prove harmless error, the gov-

ernment must be able to show that the Guidelines

error did not affect the district court’s selection of the

22 No. 10-3766

sentence imposed.” Abbas, 560 F.3d at 667 (quotation

omitted). When we are convinced that the sentence

would have been the same absent the error, we deem the

error harmless. Id. We have found procedural errors

harmless where the district court made it clear that it

would have imposed the same sentence even if the

error had not been made. Id.; see also United States v.

Anderson, 517 F.3d 953, 965-66 (7th Cir. 2008). In Abbas,

we found that even though the district court committed

a significant procedural error by improperly applying

§ 2C1.1 and as a result, miscalculating the guideline

range, the error was harmless where the sentencing

judge “expressly stated that she would have imposed

the same sentence even if § 2C1.1 did not apply to the

defendant’s sentence.” 560 F.3d at 667. We noted that

the sentencing judge “did so with a detailed explanation

of the basis for the parallel result; this was not just

a conclusory comment tossed in for good measure.” Id.

After thoroughly discussing relevant § 3553(a) factors,

the district court expressly stated that Hill would have

received the same sentence regardless of the guideline

calculation and provided ample justification for this

conclusion. The district court concluded: “The sentence

I’m going to impose in this case, frankly, is the same

sentence I would give however if there were no guide-

lines . . . .” As in Abbas, the judge engaged in a thoughtful

and meaningful review of the facts he relied on in deter-

mining an appropriate sentence and stated clearly that

the sentence was based on the factors enumerated in

§ 3553(a) and not upon the guideline calculation. The

judge properly exercised his discretion in determining

No. 10-3766 23

that an above-guideline sentence was appropriate, and

we are convinced that he would have imposed the same

sentence regardless of the guideline calculation. Thus,

even if there had been error in the guideline calculation,

we would deem it harmless.

A FFIRMED.

7-5-11