UNITED STATES OF AMERICA v. WALTER D. HILL, No. 10-3766

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.

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.

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' 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.

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-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 examples 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 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 regulating liquor licensing was a sensitive position comparable to law enforcement function.

The commentary defines "[h]igh-level decision-making or sensitive position" as "a position characterized by . . . a substantial influence over the decision-making process." 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 decisionmaker. 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.

The district court's findings in this case similarly support its conclusion that Hill was in a sensitive position 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 commission, 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 enhancement 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 enforcement officer was well supported by the record.

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.

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 review), could significantly impact businesses' ability to operate and earn revenue. This authority placed Hill in a sensitive position.

AFFRIMED

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