In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3043

United States of America,

Plaintiff-Appellant,

v.

Julio C. Cruz-Guevara,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 894--David H. Coar, Judge.


Argued January 18, 2000--Decided March 23, 2000



      Before Easterbrook, Kanne and Diane P. Wood, Circuit
Judges.

      Kanne, Circuit Judge. In July 1998, Julio Cruz-
Guevara was deported from the United States as a
result of a conviction for an aggravated felony.
In October 1998, Cruz-Guevara illegally re-
entered the United States. He was found in the
United States in November and subsequently
pleaded guilty to the charge of being found in
the United States after having been removed
subsequent to conviction for an aggravated
felony, pursuant to 8 U.S.C. sec. 1326(a).
Despite an imprisonment range of seventy to
eighty-seven months based on his offense level
and criminal history category, the district court
sentenced Cruz-Guevara to only twenty-four months
imprisonment. The government appeals this
downward departure, and we vacate the sentence
and remand to the district court for re-
sentencing.

I.   History

      Julio Cruz-Guevara first entered the United
States from Mexico in 1980 at age two. Between
his immigration to this country and his
deportation in 1998, he returned to Mexico only
once, at age eight, to attend the funeral of his
grandmother. During the entirety of his initial
residence in the United States, Cruz-Guevara was
a legal permanent resident.
      Despite his youth, Cruz-Guevara has already
amassed a lengthy criminal history, including
five prior convictions. At sixteen, Cruz-Guevara
was convicted of involvement in a fight after a
gang-related shouting match, and he was also
convicted of writing graffiti at a city park. The
next year, Cruz-Guevara was convicted of
possession of a controlled substance. The same
year he was also convicted of aggravated criminal
sexual abuse of a minor, in this case statutory
rape of a sixteen-year-old girl. For these final
two offenses, Cruz-Guevara was sentenced to serve
116 days and 120 days, to be served concurrently,
in a state prison facility. During the period of
his incarceration, the INS filed a Notice to
Appear, seeking to remove Cruz-Guevara from the
United States because of his state felony
conviction.

       In June 1998, an immigration judge ordered the
removal of Cruz-Guevara, and Cruz-Guevara did not
appeal. On July 2, 1998, Cruz-Guevara was removed
to Mexico from the United States. In Mexico,
Cruz-Guevara was friendless and alone. Unable to
find any relatives in Mexico, Cruz-Guevara could
not secure permanent housing or a job. As his
family stated, "he might as well have gone to
Mars."

      Cruz-Guevara was able to acquire a falsified
alien registration card, and he used this card
illegally to re-enter the United States in
October 1998. A month later in Chicago, Cruz-
Guevara was arrested and detained for throwing a
bottle at a police car. Cruz-Guevara was
convicted of aggravated assault and criminal
damage to property on the basis of this arrest.
Shortly thereafter, Cruz-Guevara was released
into federal custody, where he was charged for
illegally re-entering the United States. He
initially pleaded not guilty but later withdrew
this plea and entered a guilty plea, which the
district court accepted.

      Cruz-Guevara’s total offense level for purposes
of sentencing was twenty-one, composed of a base
offense level of eight pursuant to U.S.S.G. sec.
2L1.2(a), an enhancement of sixteen points
pursuant to sec. 2L1.2(b)(1)(A) because his
removal was based on an aggravated felony
conviction and a reduction of three points
pursuant to sec. 3E1.1 for acceptance of
responsibility. Based on his prior convictions,
the pre-sentencing report established that Cruz-
Guevara’s criminal history category was V, which
resulted in a guideline imprisonment range of
seventy to eighty-seven months.

      On July 12, 1999, the district court held a
hearing in which the court informed the parties
that it had received a letter from the Cruz-
Guevara family, which the court considered "an
extraordinary act of family solidarity." In the
letter, the family declared its intent to sell
its home and return to Mexico with Cruz-Guevara
on his deportation. The next day at Cruz-
Guevara’s sentencing hearing, Cruz-Guevara moved
for a downward departure from the sentencing
guidelines imprisonment range on the basis of
extraordinary family circumstances. The
government objected to the motion based on the
serious nature of the conviction and Cruz-
Guevara’s prior criminal record. The government
also argued that the family’s promise could not
be enforced, or in the alternative, a downward
departure would actually be to the family’s
detriment because they would have to leave the
country sooner.

      The district court adopted the facts set forth
in the pre-sentencing report and determined that
neither party had any objections to this report.
Then, the district court granted Cruz-Guevara’s
motion. It concluded that extraordinary family
circumstances and Cruz-Guevara’s cultural ties to
this country removed the case from the heartland
anticipated by the Sentencing Guidelines. The
court focused on the extraordinary solidarity
demonstrated by the family, Cruz-Guevara’s youth
and the fact that he had no other connections in
Mexico. In light of these factors, the court
departed downward from the range of seventy to
eighty-seven months, sentenced Cruz-Guevara to
twenty-four months imprisonment followed by three
years of supervised release and fined him $1,000.
The district court did not explain the basis for
the extent of its downward departure.

II.   Analysis

      The government appeals, arguing that the
district court abused its discretion by granting
the motion for downward departure based on Cruz-
Guevara’s family circumstances and cultural ties.
The government also contends that the district
court abused its discretion by departing to an
unreasonable extent and by failing to link the
extent of its downward departure to the structure
of the Sentencing Guidelines. We review a
district court’s departure for abuse of
discretion and accept the findings of fact
underlying such a departure unless clearly
erroneous. See United States v. Wilke, 156 F.3d
749, 753 (7th Cir. 1998). A district court’s
determination of the extent of a departure is
discretionary, so we review this determination
for abuse of discretion. See United States v.
Leahy, 169 F.3d 433, 445 (7th Cir. 1999). "We
will uphold the extent of the departure taken as
long as it is reasonable and adequately reflects
the structure of the Guidelines." United States
v. Hogan, 54 F.3d 336, 341 (7th Cir. 1995).

      The government claims that the extent of the
district court’s downward departure, the
equivalent of ten offense levels, is patently
unreasonable given the deterrent purpose of the
sixteen-level enhancement required by U.S.S.G.
sec. 2L1.2(b)(1)(A). We disagree. Section
2L1.2(b) (1)(A) requires a sixteen-level increase
for unlawfully entering the United States if the
defendant "previously was deported after a
criminal conviction" and "the conviction was for
an aggravated felony." U.S.S.G. sec.
2L1.2(b)(1)(A). In contrast, sec. 2L1.2(b)(1)(B)
requires only a four-level increase if the
defendant has previously been convicted of "any
other felony." U.S.S.G. sec. 2L1.2(b)(1)(B).
Because of this disparity, application note 5 to
subsection (b)(1)(A) reminds courts that
"[a]ggravated 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." U.S.S.G. sec. 2L1.2
application note 5.

      In its argument against the downward departure,
the government apparently fails to consider
whether a downward departure may have been
reasonable on this ground. Cruz-Guevara had
committed only one felony offense prior to his
deportation, for aggravated criminal sexual abuse
of a minor. The facts that underlie his
conviction are consensual sex acts engaged by
himself, as an eighteen year old, and his
sixteen-year-old girlfriend. In analogous
circumstances, we indicated that this type of
sexual assault may not be a crime of violence or
a firearms offense. See United States v. Shannon,
110 F.3d 382, 387 (7th Cir. 1997) (holding that
all convictions under Wisconsin sexual assault
statute were not per se convictions for crimes of
violence). We recently concluded that this type
of sexual assault should not be considered an
aggravated felony in the immigration context. See
Xiong v. INS, 173 F.3d 601, 605 (7th Cir. 1999).
If the district court determined that the facts
of Cruz-Guevara’s conviction did not constitute
a crime of violence, the district court could
have analogized reasonably from Xiong to
determine that Cruz-Guevara’s statutory rape
conviction should be treated as an ordinary
felony, which merits only a four-level increase,
rather than as an aggravated felony, which merits
a sixteen-level increase. See U.S.S.G. sec.
2L1.2(b)(1)(A)-(B). Because Cruz-Guevara’s term
of imprisonment on the statutory rape charge was
116 days, less than half of one year, the
district court rationally could have determined
that Cruz-Guevara met all the relevant criteria
to warrant a downward departure. In such
circumstances, a downward departure of only ten
levels, rather than the twelve levels that the
court might have departed by had it determined
that Cruz-Guevara’s acts more closely resembled
a felony than an aggravated felony, may have been
conservative rather than excessive. We do not
find the departure unreasonable.

      Nonetheless, any departure from the Sentencing
Guidelines imprisonment range requires that the
extent of the departure be tied to the structure
of the Guidelines. See United States v. Scott,
145 F.3d 878, 886 (7th Cir. 1998) ("The law
merely requires that district judges link the
degree of departure to the structure of the
Guidelines and justify the extent of the
departure taken."). No "hard and fast rules"
govern the determination of the extent of the
departure, but we approve of "a method that
involves calculating the defendant’s sentence by
analogy to existing guideline provisions." Leahy,
169 F.3d at 445 (quoting United States v. Horton,
98 F.3d 313, 317 (7th Cir. 1996)). The district
court has run afoul of this principle. The court
departed downward from seventy to eighty-seven
months to twenty-four months without providing
any analogy to the structure of the Guidelines.
The district court did not justify the extent of
its departure. Therefore, its unsupported
determination that a ten-level departure from the
Sentencing Guidelines was appropriate constitutes
an abuse of discretion, and on this basis, we
must vacate Cruz-Guevara’s sentence and remand
for re-sentencing.

      Accordingly, on remand the district court must
provide an explanation for the extent to which it
would depart downward from the total offense
level as calculated in the pre-sentencing report.
The court should compare the seriousness of the
mitigating factors at hand with those that the
commission contemplated. See Hogan, 54 F.3d at
342. If the court determines that the facts that
underlie Cruz-Guevara’s aggravated felony
conviction more closely resemble a felony than an
aggravated felony, then the court should
analogize from the Guidelines and choose the
extent of its departure accordingly.

      Because we find that the district court abused
its discretion by failing to link its departure
to the structure of the Guidelines, we will not
discuss at length the question whether the
court’s bases for downward departure constituted
an abuse of discretion. We note, however, that
"dissatisfaction with the available sentencing
range . . . is not an appropriate basis for a
sentence outside the applicable guideline range."
U.S.S.G. sec. 5K2.0, comment; see also United
States v. Seacott, 15 F.3d 1380, 1389 (7th Cir.
1994). Thus, a simple determination that a
sentencing range is "too harsh" would be an
impermissible basis on which to depart downwards.
In addition, we observe that the district court’s
construction of the "family circumstances" basis
for departure, while not clearly an abuse of
discretion, is a substantial deviation from the
traditional purpose of the departure, which is to
grant leniency to a convict in order to allow him
to fulfill his responsibilities to his dependent
family. See, e.g., United States v. Owens, 145
F.3d 923, 928-29 (7th Cir. 1998); United States
v. Carter, 122 F.3d 469, 474 (7th Cir. 1997);
United States v. Canoy, 38 F.3d 893, 906 (7th
Cir. 1994).

III.   Conclusion

      Because the district court failed to explain
the basis for the extent of its downward
departure, we VACATE the sentence imposed by the
district court and REMAND for further proceedings.
