In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3925

United States of America,

Plaintiff-Appellee,

v.

Abel Chavez-Chavez,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 107--Ruben Castillo, Judge.

Argued April 25, 2000--Decided May 23, 2000



  Before Posner, Chief Judge, and Easterbrook and
Evans, Circuit Judges.

  Easterbrook, Circuit Judge. 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.

  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.

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.

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.

  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.

  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.

  The appeal is dismissed for want of
jurisdiction.
