213 F.3d 420 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Abel Chavez-Chavez,    Defendant-Appellant.
No. 99-3925
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 25, 2000
Decided May 23, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 CR 107--Ruben Castillo, Judge.
Before Posner, Chief Judge, and Easterbrook and  Evans, Circuit Judges.
Easterbrook, Circuit Judge.


1
Abel Chavez-Chavez,  an alien unlawfully present in the United States,  pleaded guilty to aggravated criminal sexual  abuse--fondling the breasts of an 11-year-old  girl. After his release from prison, Chavez was  deported. Within three months he returned to the  United States without the Attorney General's  permission. Following his apprehension, Chavez  pleaded guilty to unlawful reentry, in violation  of 8 U.S.C. sec. 1326. The sentencing guidelines  prescribe a range of 63-78 months for a person  with his offense and criminal history levels. But  the district court sentenced him to only 41  months' imprisonment, not only reducing the  offense level by 3 because of his acceptance of  responsibility but also departing downward after  concluding that Chavez's criminal history  category (calculated at III) overstated the  seriousness of his prior offenses. Unsatisfied  with that reduction, Chavez contends on this  appeal that the district court should have  departed even further. Because discretionary  decisions not to depart are not reviewable,  United States v. Franz, 886 F.2d 973 (7th Cir.  1989), we dismiss Chavez's appeal.


2
Guideline 2L1.2 establishes a base offense level  of 8 for an alien's illegal entry. Reentry  following conviction for an "aggravated felony,"  a term defined in 8 U.S.C. sec. 1101(a)(43), adds  16 levels. U.S.S.G. sec. 2L1.2(b)(1)(A). Chavez  conceded in the district court that sexual abuse  of  an 11-year-old girl is an "aggravated  felony," see sec. 1101(a)(43)(A) (defining "sexual  abuse of a minor" as an "aggravated felony"), so  his offense level was correctly set at 24 (less  the discount for accepting responsibility). But  the Commission also invited departures.


3
Aggravated felonies that trigger the  adjustment from subsection (b)(1)(A) vary  widely. If subsection (b)(1)(A) applies,  and (A) the defendant has previously been  convicted of only one felony offense; (B)  such offense was not a crime of violence  or firearms offense; and (C) the term of  imprisonment imposed for such offense did  not exceed one year, a downward departure  may be warranted based on the seriousness  of the aggravated felony.


4
U.S.S.G. sec. 2L1.2 Application Note 5. See also  United States v. Cruz-Guevara, No. 99-3043 (7th  Cir. Mar. 23, 2000). Chavez requested an  additional departure under this note. If the  district judge found him ineligible, then that  decision on a legal issue would be reviewable for  error. See United States v. Poff, 926 F.2d 588,  590-91 (7th Cir. 1991) (en banc). But if the  judge found Chavez eligible but undeserving (or  just undeserving, without passing on  eligibility), then the decision is unreviewable,  for 18 U.S.C. sec. 3742(a) does not permit review  of a sentence within the prescribed range unless  the judge committed a legal blunder.


5
Chavez contends that he was found ineligible  under proviso (B) of the note, because the  district judge concluded that his prior offense  was a "crime of violence." The extent to which  sexual misconduct with a minor is a "crime of  violence" as that term is used in federal  sentencing practice has been vexing. See United  States v. Shannon, 110 F.3d 382 (7th Cir. 1997)  (en banc); United States v. Thomas, 159 F.3d 296  (7th Cir. 1998). If the district court had gone  behind the charging papers to conclude that  Chavez engaged in sexual intercourse with the  minor (as she contended), then the decision would  be problematic for reasons developed in Shannon,  110 F.3d at 384-85. But if, instead, the judge  looked at additional information, including the  minor's accusation (and Chavez's concession that  he may have had sexual relations with her but had been too drunk to remember), only to determine  whether it was appropriate to exercise discretion  in Chavez's favor, then there is no legal  impediment--for, as Shannon holds, id. at 385,  the judge need not stick to the charging papers  when exercising discretion with respect to  departures. Nothing in the judge's remarks at  sentencing suggests that he found that Chavez's  prior conviction was for a "crime of violence";  the judge instead exercised discretion against  Chavez on grounds that we have mentioned, and  others that are sealed under 18 U.S.C.  sec. 3509(d) to protect the minor's interests.


6
According to Chavez, the judge considered  "unreliable information"--the minor's assertion  that sexual relations occurred--when deciding not  to depart further. Many cases say that when  calculating a sentencing range under the  guidelines, or departing upward to impose a  higher sentence, the judge should ensure that  information is reliable. E.g., United States v.  Berkey, 161 F.3d 1099, 1101-02 (7th Cir. 1998);  United States v. Klund, 37 F.3d 1249 (7th Cir.  1994). Judges may rely on hearsay and other  information that would be inadmissible at trial,  but the calculation of a range (and any upward  departure) must in the end be supported by a  preponderance of the evidence. That burden of  proof would not protect the accused if the judge  could base a sentence on uncorroborated charges  by unnamed informants, and the like. But when a  judge imposes a sentence within the guideline  range (or, here, decides to curtail the extent of  a downward departure), there is no burden-of-  proof problem. The prosecutor established by a  preponderance of the evidence all facts necessary  to justify imprisonment for as long as 78 months.  When seeking a downward departure the defendant  bears the burden, and the judge may disbelieve  the defendant's position without requiring  additional evidence. Even had Chavez's denial  been credited, the judge would have been  justified in imposing a term well exceeding 41  months. So there was no legal error, and the  discretionary decision not to depart (further) is  unreviewable.


7
The appeal is dismissed for want of  jurisdiction.

