USA v. Oliver Hamilton

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6863188-1] [6863188] [17-1800]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued August 8, 2017
Decided August 22, 2017
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 17-1800
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for the Southern District of
Illinois.

v.
OLIVER W. HAMILTON,
Defendant-Appellant.

No. 16-CR-30125-MJR
Michael J. Reagan,
Chief Judge.
ORDER

Oliver Hamilton pleaded guilty to violating 18 U.S.C. § 1343, the wire fraud
statute, after charging more than $40,000 in personal expenses to a credit card belonging
to the East St. Louis Township. Hamilton was entitled to use the card for official
purposes only, in his capacity as Township Supervisor. Intending to send a strong
message about the seriousness of Hamilton’s offense, the district court sentenced him to
60 months’ imprisonment, a period more than triple the high end of the original
guidelines range; the judge also imposed a three-year term of supervised release. On
appeal, Hamilton complains that his prison sentence is unreasonably long. Judges are

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entitled, however, to choose a sentence above the advisory guidelines range, see, e.g.,
Gall v. United States, 552 U.S. 38 (2007), and they are entitled to take both general and
specific deterrence into account, see 18 U.S.C. § 3553(a)(2)(A), (B). Chief Judge Reagan
explained his choice of sentence adequately, and we see no reason to disturb it.
I
Hamilton, who is now 63 years old, became the East St. Louis Township
Supervisor in early 2011. The township has an elected Supervisor, along with other
officials. The Supervisor serves as its Chief Executive Officer, the Chair of its Board of
Trustees, and its treasurer. It appears to be a special-purpose entity, which is
responsible for running various social programs for the area residents; it also operates a
food pantry and a senior-citizens’ center.
In the summer of 2016, authorities learned from several sources that Hamilton
was misusing township funds. The ensuing investigation turned up undocumented,
suspicious, and misclassified expenditures in the township’s records. The investigators
ultimately came to the conclusion that Hamilton had looted township funds to pay
personal expenses. He had wasted no time in doing so: the thefts started just weeks
after he took office and continued until immediately before he was caught.
Some of the charges obviously violated criminal laws. These included charges for
multiple airline tickets to Las Vegas ($1,519), rental cars, parking fees, out-of-state fuel
purchases ($17,502), lawn equipment ($4,269), child support (at least $2,000), car washes
($2,700), and purported bills from Hamilton’s construction company ($1,500). Other
charges were harder to classify as illicit or legitimate. For example, Hamilton charged
about $33,000 to the township card at Home Depot; on another occasion, he attended a
conference in his supervisory role, but he inexplicably rented nine hotel rooms and two
cars for his use there. Rather than trying to figure out the fraudulent component of
these (and various other) charges, the government elected not to count them in the loss
calculation, and thus bypassed the chance to show several hundred thousand dollars of
additional loss. Once Hamilton “jumped on board” and agreed to plead guilty, the
government opted to agree with him that the loss was $40,001, see U.S.S.G. § 2B1.1(b).
This was reflected in the written plea agreement, in which Hamilton and the
government stipulated to a total offense level of 13 and criminal history category I, for
an advisory imprisonment range of 6 to 18 months. The probation office accepted these
calculations. With this range in mind, the government agreed to recommend a sentence
of a year and a day, followed by three years’ supervised release.

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The district court also received a copy of the presentence report and the parties’
recommendations, but it was skeptical about the bottom line. Two weeks before
sentencing, it issued a 28-page memorandum setting out its reservations. The memo
began with a review of the nature, circumstances, and seriousness of the offense. It then
discussed the purpose of the township, Hamilton’s role as supervisor, and the details of
his fraudulent transactions. The judge suggested that Hamilton’s actions were
especially egregious because the township was in dire financial straits: it had incurred
deficits of $2.5 million in fiscal year 2013, and more than $2.7 million the next year,
when it was forced to borrow $200,000 to cover operating expenses. By 2015 the
operating deficit was nearly $3 million. Hamilton, the judge said, had “treated the
financially unstable township as his piggy bank, and felt entitled to do so.” All the
while, Hamilton was earning a comfortable $140,000 per year from his position as
supervisor and various other sources. The median income in East St. Louis is $19,520.
The memo noted that Hamilton’s supporters had submitted numerous letters,
but the judge was not swayed by them. Hamilton had urged that his misuse of funds
not overshadow his other good deeds, but the judge saw things otherwise. Hamilton
“chose corruption and greed while hoodwinking the community into believing that he
was helping them.” This wrongdoing, the judge thought, was more serious than the
advisory guideline range indicated, particularly because Hamilton “stole repeatedly
and on a regular basis over a five-year period.” The judge was also concerned that the
harm to the residents who relied on the township’s programs was not adequately
reflected in the guidelines, other than for the adjustment for abuse of a position of trust.
The memo ended with a grim review of notable corruption cases from the East St. Louis
area, along with statistics on crime, population, income, and education. Before closing,
the court stressed that it was not attributing “all the evils outlined in this memorandum
solely to Hamilton.” All it was doing was attempting to gain some perspective on the
sentencing task. It also said that it “has determined that a within guidelines sentence
may be inadequate, [but] it has not determined what sentence is appropriate since it
awaits arguments by counsel and the defendant’s allocution.” It concluded by giving
the parties permission to respond to the memorandum, if they chose to do so.
At the sentencing hearing, the judge called Tommy Dancy, Hamilton’s successor
as Township Supervisor, to testify about the effects of Hamilton’s fraud. Dancy said
that the thefts were detrimental to the township’s mission, that social programs for the
poor had been cut as a result of its financial woes, and that its problems were getting
worse. Meanwhile, the township is paying $1,000 a month in interest on the loan that

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had to be secured to cover operating expenses while Hamilton was stealing from the
township’s coffers.
In light of the judge’s memorandum and Dancy’s testimony, the parties
submitted an amended plea agreement; the new agreement proposed an above-range,
24-month sentence in lieu of the year and a day in the earlier agreement. The amended
agreement assumed that Hamilton would receive full credit for acceptance of
responsibility, but that was derailed when the judge asked the prosecutor whether the
government had “taken into consideration what is purportedly a text message from Mr.
Hamilton” to his supporters. The prosecutor replied that he had seen it, but that defense
counsel had assured him that Hamilton had not sent the text, which read as follows:
I am in need of your support. I am sure the Judge is going to use all
the lies the newspaper has printed to give me a maximum sentence. In
Moro Township the supervisor misappropriated $700,000 in taxpayer
dollars and Judge sentenced him to five years probation. I guess I have to
pay for going against the Belleville political party. I need as many citizens
of the area to show the Judge the city supports me.
To defense counsel’s surprise, at that juncture Hamilton admitted that he had sent the
text message to his supporters (but not to the newspaper). The prosecutor announced
that this was a breach of the plea agreement, and that the government could now
recommend any sentence it wanted. After he lost credit for acceptance of responsibility,
Hamilton faced a two-level increase in his offense level and his advisory sentencing
range became 18 to 24 months; the government recommended a 30-month sentence,
while Hamilton by now was advocating for a 24-month sentence.
The court decided to sentence Hamilton to twice the length the government had
suggested. It justified a 60-month sentence primarily on the basis of the discussion in its
sentencing memorandum, but it addressed a number of additional points. It explained
that it recognized some mitigating factors, such as the fact that Hamilton was married
with two minor children, that he had served in the military for two years, and that he
had been a businessman in the area for 30 years. But these were outweighed in the
court’s view by the magnitude of the fraud. The court forthrightly said that it was
imposing a sentence not only to deter Hamilton himself from taking similar actions in
the future (i.e., specific deterrence), but also to deter others in the community because
East St. Louis has been plagued by corruption (i.e., general deterrence). The court was
especially struck by the fact that Hamilton had targeted “the poor, the disenfranchised,
those who can’t fend for themselves.” The court rejected Hamilton’s argument that his

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sentence was unjustifiably higher than the sentence received by the supervisor (in
another township) who embezzled $700,000, because the circumstances were different,
as that man was suffering from terminal cancer and died two years after his sentencing.
II
Hamilton’s only argument on appeal is that, as a matter of substance, his prison
term is unreasonably long. He does not contend that the sentence is procedurally
flawed. He objects to the judge’s reliance on general deterrence; he argues that the
judge’s view of the severity of his crime conflicts with the facts; and he continues to
assert that 60 months is too much in light of sentences received by similarly situated
defendants. These arguments, however, are more properly addressed to the district
court. Once it has calculated the proper advisory guidelines range, as this judge did, the
court has broad discretion to choose a proper sentence within any applicable statutory
limits, taking into account the factors identified by 18 U.S.C. § 3553(a). See United States
v. Bloom, 846 F.3d 243, 257 (7th Cir. 2017). We will uphold any sentence that is
reasonable.
The district court here gave a detailed account of its thinking, and we see nothing
in it that undermines its choice of a sentence. Hamilton particularly criticizes the court’s
reliance on general deterrence, however, and so we will say a few words about that. He
is correct that general deterrence cannot be the only factor supporting a sentence.
See Molton, 743 F.3d at 486. But that is far from the case here, as even a cursory look at
the judge’s lengthy memorandum and the sentencing transcript shows. The judge
described in detail Hamilton’s fraudulent transactions, the township’s financial
problems, the history of corruption in East St. Louis, and the effect of the fraud on the
community. All of these subjects are relevant to the nature and circumstances of the
offense. The judge looked at why Hamilton was stealing—for his personal benefit, not
because of addiction or need—which addresses the defendant’s history and
characteristics. The judge was particularly troubled by Hamilton’s text message seeking
support from citizens; he saw this as more dissembling, pretending to be their friend
while he stole from public aid programs. He found these actions to be serious violations
of the law, which is another point recognized as a valid sentencing consideration.
In the end, Hamilton’s primary objection is to the weight that the court gave to
general deterrence. But the weight to give any particular consideration is for the most
part up to the district judge. United States v. Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016);
United States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013). Indeed, in another case
challenging the same district judge’s reliance on the pervasive corruption in the

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East St. Louis area and the need for general deterrence, we upheld the sentence because
the judge had also weighed other factors. Molton, 743 F.3d at 486. The judge made a
good case for the need for more general deterrence: while Hamilton was engaging in his
fraud, at least two other defendants were sentenced for public corruption, and yet
Hamilton evidently paid no attention. And those two were the tip of the iceberg; the
sentencing memorandum identifies over 45 similar prosecutions in the district.
We have considered Hamilton’s other arguments, but we see nothing else that
requires comment. The sentence the district court chose was substantially above the
guidelines range, but the judge justified it appropriately, and any disparity with other
sentences was not an unwarranted one. We therefore AFFIRM the judgment of the
district court.