In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2058

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MANUEL VARGAS,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CR-163--Thomas J. Curran, Judge.


Argued July 12, 2000--Decided October 16, 2000




  Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.

  PER CURIAM. After pleading guilty to distributing
one kilogram of cocaine, 21 U.S.C. sec.
841(a)(1), Manuel Vargas was sentenced based on
the district court’s assessment of five criminal
history points. On appeal, Mr. Vargas contends
that the district court erred in assessing a
point based on a bond forfeiture and in refusing
to depart downward from Criminal History Category
III, which Mr. Vargas claims overrepresents the
seriousness of his criminal conduct. For the
reasons set forth in the following opinion, we
vacate the judgment of the district court and
remand for further proceedings consistent with
this opinion.

   Mr. Vargas’ presentence investigation report
(PSR) describes an incident in which Mr. Vargas
was arrested for possession of cannabis in
violation of a municipal ordinance in the town of
Cicero, Illinois. Although the PSR lists the
incident under the heading "Adult Criminal
Convictions," it describes the disposition only
as a "bond forfeiture" in the amount of $75. At
sentencing, Mr. Vargas objected to the assessment
of a criminal history point based on the
disposition, arguing that it reflected only his
failure to appear in court and not an
adjudication of guilt on the underlying drug
charge. Although the government never produced a
judgment relating to the incident, the district
court construed the forfeiture as a prior
sentence and assessed Mr. Vargas a criminal
history point based on it. See U.S.S.G. sec.
4A1.1(c). The point assessed for the forfeiture
did not affect Mr. Vargas’ criminal history
category, however, because his other convictions
already had placed him in Category III.

  Under the sentencing guidelines, defendants are
assessed criminal history points for prior
sentences "imposed upon adjudication of guilt."
See U.S.S.G. sec.sec. 4A1.1, 4A1.2(a)(1).
Sentences based on local ordinance violations are
included if the conduct underlying the violation
constitutes a criminal offense under state law.
See id. sec. 4A1.2(c)(1). Defendants are then
assigned to a criminal history category based on
their criminal history points and typically are
sentenced according to the sentencing range that
category prescribes. Sentencing courts, however,
may depart from the otherwise applicable
guideline range if the category "significantly
over-represents the seriousness of a defendant’s
criminal history." Id. sec. 4A1.3, p.s.

  On appeal, Mr. Vargas renews his arguments that
the assessment of a criminal history point based
on the bond forfeiture was improper because the
forfeiture did not constitute an adjudication of
guilt on the underlying drug charge and that the
district court should have departed downward
because Category III overrepresented his criminal
history. Mr. Vargas does not dispute that a
conviction based on the ordinance in question
would have counted for criminal history purposes
because the conduct proscribed by the ordinance
also violates Illinois criminal law. See id. sec.
4A1.2(c)(1); 720 ILCS 550/4.

  In response, the government contends that this
case is similar to United States v. Jiles, 102
F.3d 278, 279-80 (7th Cir. 1996). In that case,
the district court assessed criminal history
points based on default judgments entered against
the defendant after he failed to appear in court
on charges of violating municipal ordinances in
Wisconsin. In Jiles, this court noted that a
plain reading of the sentencing guidelines in
conjunction with Wisconsin law (the latter
provides that a person who fails to appear on a
municipal violation is deemed to have entered a
plea of no contest) offered no support for the
argument that the judgments were not
adjudications of guilt. See id. But the
government offers no authority to suggest that an
Illinois bond forfeiture is equivalent to a
default judgment of conviction on the underlying
charge or that Mr. Vargas’ failure to appear
constituted a nolo contendere plea to the
ordinance violation. Moreover, the government has
not produced any judgment--forfeiture or default-
-entered against Mr. Vargas. In light of this
failure of proof on the part of the government,
the district court’s assessment of a point based
on the forfeiture was erroneous. See, e.g.,
United States v. DiPina, 178 F.3d 68, 75 (1st
Cir. 1999) (government carries burden of showing
that what happened in the prior proceeding was in
substance a plea of guilty or nolo as required by
sec. 4A1.2(a)(1)); United States v. Booker, 71
F.3d 685, 688 (7th Cir. 1995) (government has
threshold burden of proving fact of conviction).

  In this regard, we note that, even if a judgment
had been entered against Mr. Vargas based on his
failure to appear, it is unclear that it would
satisfy the "adjudication of guilt" element of
sec. 4A1.2(a)(1). A judgment entered pursuant to
725 ILCS 5/110-7(g), when an accused has failed
to surrender within 30 days of notice of the
forfeiture of his bail, is a "civil judgment on
the bond in lieu of criminal prosecution," see
People v. Woollums, 379 N.E.2d 1385, 1388 (Ill.
App. Ct. 1978) (emphasis added). Illinois Supreme
Court Rule 556(b), in contrast, permits the entry
of an "ex parte judgment against the defendant"
for fines and costs in cases where a court
appearance is not required and the defendant,
after posting bail, fails to appear. See Ill.
Sup. Ct. R. 551, 556(b). Illinois courts have
indicated that such judgments are judgments "for"
the underlying offense, see People v. Koller, 411
N.E.2d 1209, 1210-11 (Ill. App. Ct. 1980), and
this court has held that such judgments
constitute adjudications of guilt on the
underlying offense, see United States ex rel.
Woollums v. Greer, 728 F.2d 918 (7th Cir. 1984).
Thus, the government’s failure to offer any
evidence to supplement the vague reference in the
PSR is especially problematic in this case.

  The government also argues that if the
assessment of the point was error, it was
harmless error and that the district court’s
refusal to depart downward under sec. 4A1.3 is
unreviewable. In the context of this case, we
cannot accept this contention. The denial of a
downward departure under sec. 4A1.3 is reviewable
if predicated on a legal error. See United States
v. Williams, 198 F.3d 988, 994-95 (7th Cir.
1999). Here, an erroneous conclusion of law that
led to the assessment of the extra point might
have affected the district court’s departure
decision because Mr. Vargas would have had one
fewer conviction than the district court assumed.
That Mr. Vargas did not specifically explain how
these two arguments are related is of no
consequence. The parties and the court were
sufficiently focused on what Mr. Vargas believed
was wrong with his sentence.

  Because we cannot be certain that the error that
led to the assessment of the extra point did not
also affect the district court’s departure
decision, we vacate Mr. Vargas’ sentence and
remand the case to the district court for
resentencing.

VACATED and REMANDED
