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