U.S. v. Hill, 10–3766.

• Citation: 645 F.3d 900
• Decision Date: 05 July 2011
• Docket Number: No. 10–3766.,10–3766.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Walter D. HILL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

645 F.3d 900

UNITED STATES of America, Plaintiff–Appellee,

v.Walter D. HILL, Defendant–Appellant.

No. 10–3766.

United States Court of Appeals, Seventh Circuit.

Argued May 2, 2011.Decided July 5, 2011.

Norman R. Smith, Attorney, Steven D. Weinhoeft (argued), Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.Adam D. Fein, Attorney, Erin R. Griebel (argued), Attorney, Rosenblum, Schwartz, Rogers & Glass, P.C., St. Louis, MO, for Defendant–Appellant.Before POSNER, KANNE, and TINDER, Circuit Judges.TINDER, 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 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 guideline 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 enhancement or imposed sentence, we affirm.

I

Hill was a campaign organizer and political fund raiser for Alvin Parks while Parks was a candidate for the office of mayor of East St. Louis. Hill had also been Parks' fraternity brother in college. After Parks won the election 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 administration 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 conducted 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 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 Commission and subsequent judicial review. Id. 5/7–9 and 5/7–11. While the appeal is pending, the licensee can resume 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 supervision 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 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 withholding 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 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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Although the Guidelines are advisory, the Supreme Court has stressed that district courts must treat them as “the starting point and the initial benchmark.” Gall, 552 U.S. at 49, 128 S.Ct. 586. 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 reasonableness 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. Johnson, 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]...