230 F.3d 328 (7th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MANUEL VARGAS, Defendant-Appellant.
No. 99-2058
In the  United States Court of Appeals  For the Seventh Circuit
Argued July 12, 2000Decided October 16, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 98-CR-163--Thomas J. Curran, Judge.
Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
PER CURIAM.


1
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.


2
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.


3
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.


4
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.


5
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).


6
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.


7
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.


8
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.


9
VACATED and REMANDED.

