                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1535
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellant,
                                  v.

CARMEN HERNANDEZ,
                                                  Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 01 CR 212—John W. Darrah, Judge.
                          ____________
   ARGUED SEPTEMBER 12, 2002—DECIDED MARCH 28, 2003
                          ____________


 Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. Carmen Hernandez was indicted
for her part in a conspiracy to import, possess, and pass
counterfeit United States currency. Ms. Hernandez and her
accomplice, Myrian Zambrano, obtained counterfeit bills
from a source in Peru and then smuggled them into the
United States. They intended to pass the bills at stores
and to send the change back to their source in Peru. On
March 10, 2002, Ms. Hernandez was arrested for attempt-
ing to pass a counterfeit $100 bill at a Menards home
improvement store in Lombard, Illinois. She was indicted
and convicted for conspiracy, see 18 U.S.C. § 371, and for
2                                                      No. 02-1535

possessing and concealing counterfeit obligations of the
United States, see 18 U.S.C. § 472. The district court sen-
tenced Ms. Hernandez to eleven months’ confinement and
                                  1
three years of supervised release. The Government now
appeals the sentence. For the reasons set forth in the fol-
lowing opinion, we must vacate the sentence imposed by
the district court and remand the case for further pro-
ceedings.


                                  I
  Ms. Hernandez was convicted of possessing counterfeit
                                             2
currency in violation of 18 U.S.C. § 472. Section 2B5.1
is the Sentencing Guideline section that applies to viola-
tions of § 472, see U.S.S.G. App. A (2001); it also applies to
violations of other sections, including 18 U.S.C. § 470,
which punishes counterfeit acts committed outside of
the United States. Although the base offense level under
§ 2B5.1 is 9, § 2B5.1 includes enhancements for certain
specific offense characteristics, including a two-level en-


1
  We note what appears to be a scrivener’s error in the judg-
ment entered by the district court. It recites that the defendant
pleaded guilty. The record reveals that the defendant was
found guilty after a trial by jury.
2
    Section 472 provides:
      Whoever, with intent to defraud, passes, utters, publishes,
      or sells, or attempts to pass, utter, publish, or sell, or with
      like intent brings into the United States or keeps in pos-
      session or conceals any falsely made, forged, counterfeited,
      or altered obligation or other security of the United States,
      shall be fined under this title or imprisoned not more than
      fifteen years, or both.
18 U.S.C. § 472.
No. 02-1535                                                      3

hancement “[i]f any part of the offense was committed
outside the United States . . . .” U.S.S.G. § 2B5.1(b)(5).
  The district court noted that part of Ms. Hernandez’s
offense was committed outside the United States, but it
concluded nevertheless that the enhancement provided
for in subsection (b)(5) did not apply to Ms. Hernan-
dez’s conviction for violating 18 U.S.C. § 472 because the
Sentencing Commission adopted that enhancement in
response to a Congressional directive that concerned only
                   3
18 U.S.C. § 470. We review the district court’s inter-
pretation of the Sentencing Guidelines de novo. See United
States v. Mojica, 185 F.3d 780, 791 (7th Cir. 1999).
  In the Antiterrorism and Effective Death Penalty Act,
Congress set forth its findings that United States cur-
rency was being counterfeited outside the United States
and that the Sentencing Commission had “failed to pro-
vide, in its sentencing guidelines, for an appropriate en-
hancement of punishment for defendants convicted of
counterfeiting United States currency outside the United


3
    Section 470 provides:
      A person who, outside the United States, engages in the act
      of—
          (1) making, dealing, or possessing any counterfeit
          obligation or other security of the United States; or
          (2) making, dealing, or possessing any plate, stone, or
          other thing, or any part thereof, used to counterfeit
          such obligation or security,
      if such act would constitute a violation of section 471, 473,
      or 474 if committed within the United States, shall be
      fined under this title, imprisoned not more than 20 years,
      or both.
18 U.S.C. § 470.
4                                                 No. 02-1535

States.” Pub. L. No. 104-132, tit. VIII, § 807(f)(4), 110 Stat.
1308 (1996), reprinted in 18 U.S.C. § 470 notes. Congress
therefore directed the Sentencing Commission: “[T]he
Commission shall amend the sentencing guidelines pre-
scribed by the Commission to provide an appropriate
enhancement of the punishment for a defendant con-
victed under section 470 of title 18 of [the United States
Code].” Id. § 807(h). In response, the Commission amended
U.S.S.G. § 2B5.1 to require that an enhancement apply
“[i]f any part of the offense was committed outside the
United States. . . .” U.S.S.G. § 2B5.1(b)(5); see U.S.S.G.
                                     4
Manual, App. C, Amendment 554. The Commission sim-
ply added the specific offense characteristic to § 2B5.1,
and that enhancement now on its face applies to all
United States Code sections within the ambit of U.S.S.G.
                                   5
§ 2B5.1, not just 18 U.S.C. § 470.
  Ms. Hernandez argues that Congress only directed the
Sentencing Commission to increase the sentence of defen-
dants convicted under 18 U.S.C. § 470. She points us to
United States v. Tomasino, 206 F.3d 739 (7th Cir. 2000),
amended by 230 F.3d 1034 (7th Cir. 2000). In Tomasino, this
court concluded that, because we did not have “at least
minimal confidence . . . that the Commission was not sim-
ply misinterpreting a statute,” the court could not know
whether the Commission was exercising its legislative
judgment and therefore could not know whether the
defendant lawfully was sentenced. Id. at 742. However,


4
  At the time of the amendment, the enhancement at issue
here was designated as subsection (b)(4). It was later redes-
ignated as subsection (b)(5), effective November 1, 2001. See
U.S.S.G. Manual, App. C Supp., Amendment 618.
5
  Guideline § 2B5.1 applies to 18 U.S.C. §§ 470-74A, 476, 477,
500, 501 and 1003. See U.S.S.G. § 2B5.1, Statutory Provisions.
No. 02-1535                                               5

Tomasino is not controlling in the situation before us.
Unlike Tomasino, the circumstances here permit us to have
“at least minimal confidence” that the Commission was
exercising its legislative judgment in applying the en-
hancement to convictions under statutes other than 18
U.S.C. § 470. In Tomasino, the court concluded that, al-
though the Commission knew that its definition of “finan-
cial institution” included a pension fund, it was possible
that it had overlooked the statutory definition that was
cross-referenced by the provision that it sought to im-
plement and that did not include pension funds. The
discrepancy between the ambit of the guideline and
the directive of Congress was clear only by looking to the
cross-referenced statute, and there was no indication
that the Commission had taken into account the cross-
reference. By contrast, in the situation before us, the dis-
crepancy between the guideline’s ambit and the Congres-
sional directive is clear on the face of both provisions.
The Congressional directive referred only to § 470, but
the Commission knew that its guideline applied to sec-
tions other than § 470 because it listed the sections in the
guideline. See U.S.S.G. § 2B5.1, Statutory Provisions. We
therefore have the necessary assurance that the Commis-
sion considered whether to make the guideline appli-
cable to all sections or just to § 470 and that it decided
to apply the enhancement to all sections.
  Ms. Hernandez invites the court to consider the Com-
mission’s statement, “This amendment addresses sec-
tion 807(h) of the Antiterrorism and Effective Death Pen-
alty Act of 1996.” U.S.S.G. Manual, App. C, Amendment
554. She contends that this directive requires only an
enhancement for individuals convicted under 18 U.S.C.
§ 470. In Ms. Hernandez’s view, this directive indicates
that the Commission was merely exercising its interpre-
tive role and implementing Congress’ will. In Tomasino,
6                                               No. 02-1535

the Commission described its action as “implementing” a
Congressional requirement; but, in this case, the Commis-
sion described the amendment as “addressing” Congress’
directive. This diction suggests an exercise of discretion
absent from use of the word “implements.” “Address” is
defined as follows: “To direct the efforts or turn the atten-
tion of onself.” Webster’s Third New International Dictio-
nary 24 (1981). In amending U.S.S.G. § 2B5.1, the Com-
mission turned its attention to the problem of counterfeit-
ing accomplished abroad, and created language that
plainly addresses all counterfeiting offenses to which the
guideline applies.
  Ms. Hernandez points out that, in explaining the amend-
ment to § 2B5.1, the Commission said only that the amend-
ment addresses the Congressional directive to provide
for an appropriate enhancement for international offenses
violating 18 U.S.C. § 470. The Commission did not say
that it was implementing the Congressional directive “in
broader form.” The Commission has used such language
in explaining amendments to the Guidelines that respond
to, and go beyond, Congressional mandates. See, e.g.,
U.S.S.G. § 2B5.1, Background (reciting that subsection (b)(4)
“implements, in a broader form, the instruction to the
Commission in section 110512 of Public Law 103-322”).
Indeed, in Tomasino, this court noted that the absence of
such language in the notes indicated that the Commission
may not have meant to adopt a broader enhancement than
the one called for by Congress. Notably, however, the
court did not suggest that such language absolutely must
accompany an enhancement that responds to, but is broader
than, one called for by Congress. The circumstances here
suggest that the Commission knew that its enhancement
applied to more sections of the United States Code than
the section specifically noted by Congress. Consequently,
the district court erroneously interpreted the Guidelines;
No. 02-1535                                              7

it should have applied a two-level enhancement to Ms.
Hernandez’s sentence pursuant to U.S.S.G. § 2B5.1(b)(5).


                            II
   Sentencing Guideline § 5K2.0 allows departures from
the range established by the Guidelines “if the court finds
‘that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in for-
mulating the Guidelines that should result in a sentence
different from that described.’ ” U.S.S.G. § 5K2.0 (quoting
18 U.S.C. § 3553(b)). The district court granted a down-
ward departure of two levels because, without the depar-
ture, the Guidelines would have required a sentence of
more than one year, which would have required Ms.
Hernandez’s deportation under INS regulations. Conse-
quently, Ms. Hernandez’s two children, ages five and six
and American citizens, would have to live with their
father in the United States or with their mother in the
country to which she is deported. Such a result, the dis-
trict court concluded, could not have been contemplated
by the Guidelines. See R.72-1 at 15.
  This court explained in United States v. Guzman, 236
F.3d 830 (7th Cir. 2001), that “the defendant’s status as a
deportable alien is relevant only insofar as it may lead to
conditions of confinement, or other incidents of punish-
ment, that are substantially more onerous than the framers
of the guidelines contemplated in fixing the punishment
range for the defendant’s offense.” Id. at 834. The Govern-
ment submits that the district court did not explain how
Ms. Hernandez’s alien status would make the conditions
of her confinement more onerous than anticipated by the
Sentencing Commission. The court did explain, howev-
8                                                     No. 02-1535

er, how another “incident of punishment” would be more
onerous than the Commission anticipated: without the
departure, the sentence would result not only in Ms.
Hernandez’s deportation, but in her separation from her
husband and possibly her children and in the imposition
of a decision on the children to live in the United States
with their father or abroad with their mother.
  In evaluating this issue, we begin by noting that the
Sentencing Guidelines also provide that “[f]amily ties and
responsibilities and community ties are not ordinarily
relevant in determining whether a sentence should be
outside the applicable guideline range.” U.S.S.G. § 5H1.6.
As such a “discouraged factor,” a district court “should
depart only if the factor is present to an exceptional degree
or in some other way makes the case different from the
ordinary case where the factor is present.” Koon v. United
States, 518 U.S. 81, 96 (1996). We cannot say that the situa-
tion here is so different from other cases that the Com-
mission could not have anticipated that incarcerating a
parent would have a disruptive impact on the family.
Although it is a sad fact that families are often separated
by deportation, the situation in which one parent may
remain in the country legally with children who are nat-
ural born American citizens, while the other parent is
                                               6
ordered deported, is by no means unique. The drafters
of the Guidelines clearly knew that such cases arise with
some frequency; therefore, this case is neither extraordi-
nary, nor is the result substantially more onerous than


6
  We note that there is no contention here that the age or med-
ical condition of the children would require, as a practical matter,
that they accompany their mother. Nor is there any indication
that they would be exposed to extraordinary danger if they
were to accompany their mother.
No. 02-1535                                                       9

the Commission calculated in drafting the Guidelines.
Therefore, we must conclude that the district court abused
its discretion in granting a two-level downward depar-
ture in Ms. Hernandez’s sentence. See United States v.
Maung, No. 02-12945, 2003 WL 262476, at *3 (11th Cir.
Feb. 10, 2003).


                                III
  The parties agree that the 2000 version of the Sentencing
Guidelines applies to this question. Under that version of
§ 2B5.1, for offenses involving more than $2,000 worth of
counterfeit currency, the offense level is increased accord-
ing to a table set out in § 2F1.1. See U.S.S.G. § 2B5.1(b)(1)
       7
(2000). That table requires the offense level to be increased
by 3 if the amount of currency was between $10,000 and
$20,000, and by 4 if the amount was between $20,000 and
$40,000. See U.S.S.G. § 2F1.1(b)(1) (2000).
 If the $4,300 worth of counterfeit currency found at Ms.
Zambrano’s house can be attributed to Ms. Hernandez, then

7
   The 2001 version of the Guidelines, in effect at the time of
sentencing, refers to a different section, § 2B1.1, for the determi-
nation of the appropriate level. See U.S.S.G. § 2B5.1(b)(1) (2001).
Under § 2B1.1(b)(1)(C), however, Ms. Hernandez’s offense
level would be increased by 4 whether or not the amount of
currency found in Ms. Zambrano’s house was considered. Under
the older version, using § 2F1.1, the offense level would be
increased by only 3 if the currency found in Ms. Zambrano’s
house was excluded. Because the previous version of the Guide-
lines was the version in effect at the time of Ms. Hernandez’s
offense, and because its application could result in a lower
offense level, the court properly relied on the older version
rather than the version in effect at the time of sentencing. See
United States v. Kosmel, 272 F.3d 501, 507 (7th Cir. 2002).
10                                                  No. 02-1535

the total currency involved in Ms. Hernandez’s offense
would be $22,400. Without the inclusion of those funds,
Ms. Hernandez’s offense would involve less than $20,000.
In calculating the amount of contraband attributable to
a defendant, the Guidelines provide that “the defendant
is accountable for all quantities of contraband with which
he was directly involved and, in the case of a jointly under-
taken criminal activity, all reasonably foreseeable quan-
tities of contraband that were within the scope of the
criminal activity that he jointly undertook.” U.S.S.G. 1B1.3,
Application Note 2; see id. 1B1.3(a)(1)(B). The district court
recognized that the $4,300 of counterfeit currency dis-
covered in Ms. Zambrano’s house can be attributed to
Ms. Hernandez only if Ms. Zambrano’s possession of that
currency was in furtherance of a criminal activity jointly
undertaken by Ms. Hernandez and Ms. Zambrano. More-
over, it also must have been reasonably foreseeable to
Ms. Hernandez that her confederate would have those
funds.
  The district court determined that Ms. Zambrano’s
possession of $4,300 was not foreseeable to Ms. Hernan-
dez and therefore excluded it from the amount attribut-
            8
able to her. This court reviews a district court’s findings
with respect to the amount of counterfeit currency attrib-
utable to a defendant under U.S.S.G. §§ 1B1.3 and 2F1.1
for clear error, see United States v. Bolin, 35 F.3d 306, 309
(7th Cir. 1994), and we review legal interpretations of the
Guidelines de novo, see United States v. Mojica, 185 F.3d
780, 791 (7th Cir. 1999).


8
   The court based its determination on the foreseeability ques-
tion, and Ms. Hernandez does not claim that the $4,300 in
currency was not part of a “jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B).
No. 02-1535                                                11

   We must conclude that the district court erred in its
foreseeability determination because it equated foresee-
ability with knowledge. A defendant need not know of a co-
conspirator’s actions for those actions reasonably to be
foreseeable to the defendant. See United States v. Akindele,
84 F.3d 948, 959 (7th Cir. 1996) (discussing foreseeability
under U.S.S.G. § 1B1.3). The district court stated: “So the
issue therefore is the issue of foreseeability, . . . and that
is, did Carmen Hernandez reasonably know that the
conduct of the other conspirator, in this case Myrian
Zambrano, included bringing in $12,500 in March of 2001?”
R.72-1 at 11. The district court concluded: “There’s noth-
ing that would fairly support an inference that Miss
Hernandez was knowledgeable about that amount [the
$4,300 found at Ms. Zambrano’s house].” Id. at 13. Such
a requirement that Ms. Hernandez have had “knowledge”
of the amount of counterfeit currency is an error of law.
On remand, therefore, the district court must redeter-
mine this issue under the correct legal standard.


                        Conclusion
  For the reasons set forth in this opinion, the sentence
imposed by the district court is vacated, and the case
is remanded for the imposition of a sentence in con-
formity with this opinion.
                                   VACATED and REMANDED

A true Copy:
        Teste:
                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit

                    USCA-02-C-0072—3-28-03
