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

No. 03-4233
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

KAFAYAT ABIMBOLA-AMOO,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 03 CR 804—James F. Holderman, Judge.
                          ____________
  ARGUED OCTOBER 5, 2004—DECIDED NOVEMBER 23, 2004
                     ____________


  Before POSNER, KANNE, and WOOD, Circuit Judges.
  KANNE, Circuit Judge. Kafayat Abimbola-Amoo pleaded
guilty to possession of heroin with intent to distribute and
was sentenced to 57 months’ imprisonment. At sentencing
she argued for a downward departure premised on her
belief that after completing her sentence she will be de-
ported to Nigeria and imprisoned again for the same
conduct. The district judge refused to depart on this basis,
and Amoo appeals. We dismiss the appeal.


                                 I.
  Amoo entered the United States in August 2003 from her
native Nigeria with 80 pellets of heroin in her stomach.
2                                                No. 03-4233

According to her account, she was a first-time drug courier
trying to recover financially after thieves robbed her
clothing business in Lagos of its inventory and cash. The
day after she arrived in Chicago and expelled the pellets,
she was confronted by federal agents who found the 806
grams of heroin during a consent search of her suitcase.
Pursuant to a plea agreement, Amoo pleaded guilty to
possession with intent to distribute in excess of 100 grams
of heroin.
  The probation officer assigned to Amoo’s case recom-
mended a base offense level of 30, which she reduced to
25 based on Amoo’s acceptance of responsibility, U.S.S.G.
§ 3E1.1, and the application of the safety valve, id.
§§ 5C1.2, 2D1.1(b)(6). As relevant here, Amoo filed a motion
for downward departure based on her assertion that she
faces further incarceration for her drug offense when she is
deported to Nigeria after serving her prison sentence. Amoo
introduced evidence describing Decree 33 of Nigeria’s
National Drug Law Enforcement Agency, which subjects
any Nigerian citizen who is convicted of a narcotics offense
abroad and thereby “brings the name of Nigeria into disre-
pute” to five years’ imprisonment and the forfeiture of all
assets and property. She also introduced evidence showing
that excessive pretrial detention plagues Nigeria’s correc-
tions system, and that as recently as 2002 up to 80% of all
detainees in the country were awaiting trial, some for as
long as 12 years. Amoo offered reports from Amnesty
International, the British Home Office, the U.S. State
Department, and the Bureau of Citizenship and Immigra-
tion Services documenting that Decree 33 is still in effect in
Nigeria, especially as a basis for initial detention of drug
offenders returning from abroad. The government countered
that Decree 33 is rarely enforced—although it offered no
No. 03-4233                                                        3

evidence to back up its representation1—and argued that
Amoo can only speculate that she faces further imprison-
ment in Nigeria. The district court, reasoning that Amoo
had “not sufficiently shown that the factors she has pre-
sented fall outside the heartland or that they are factors
that the court should consider,” declined to depart.


                                II.
  The government argues that this appeal must be dis-
missed for lack of jurisdiction. It is well-settled that we
have no jurisdiction to review a refusal to depart downward
so long as the decision rested on the exercise of discretion,
and not a mistaken belief that the sentencing court was
without authority to depart. United States v. Atkinson, 259
F.3d 648, 652-53 (7th Cir. 2001). We rarely conclude,
however, that a district court did not understand its
discretion, and presume the opposite to be true. United
States v. Albarran, 233 F.3d 972, 979 (7th Cir. 2000).
Because in this case the government does not dispute
Amoo’s contention that the district court possessed the
authority to depart, we will assume that a showing that an
alien defendant faces further punishment in her home
country for the conduct underlying the federal conviction
could support a discretionary downward departure and


1
   For the first time in its brief in this court, the government
draws our attention to what it represents to be an “official notice”
from the Nigerian National Drug Law Enforcement Agency
declaring that Decree 33 has not been enforced since April 2003.
But the government has never produced the document, and
government counsel’s representation about its content is neither
evidence nor supported by any evidence in the record. At oral
argument, counsel sought to excuse reliance on the purported
notice by observing that it is relegated to a footnote in the govern-
ment’s brief, but the location does not change the fact that the
effort plainly flouts Fed. R. App. P. 28(a)(7) and 28(b).
4                                                No. 03-4233

move on to assess whether the court’s decision was an
exercise of discretion.
  Amoo argues that this is one of those rare cases in which
the district court erroneously believed that it lacked
authority to depart, pointing to the court’s own words as her
proof. Those words are far from clear, however, as
the relevant portions of the sentencing transcript demon-
strate:
    Does the defendant have to prove the foreign incarcera-
    tion by a preponderance of the evidence? The defendant
    has not here proven it by a preponderance of the
    evidence.
      But the question that is somewhat unique is should
    a United States court ever take into account a deci-
    sion by a foreign country to charge and prosecute an
    individual for a crime in that foreign country even if the
    prosecution of an individual by that foreign country
    arises out of conduct that occurred in the United States.
      The crime here in Decree 33 of Nigeria is the crime of
    being found guilty in a foreign country of an offense
    involving narcotics and thereby bringing the name of
    Nigeria into disrepute, whether in the United States
    I would agree that that is a prosecutable offense is not
    my decision. The laws of Nigeria, unless they vio-
    late international law, belong to Nigeria. There is no
    foreign transfer possibility. All of Ms. Amoo’s sentence
    that I impose today will be served here in the United
    States. The fact that she is not eligible for early release
    to a halfway house puts her in the same position as
    every other deportable alien and that fac- tor alone does
    not fall outside the heartland. The purpose of the early
    release is to reorient the incarcerated individual into
    the United States society. Ms. Amoo will not be in need
    of reorientation into United States society because she
    will in all likelihood be deported and if deported, in
No. 03-4233                                                 5

    likelihood will be prosecuted in the foreign country and
    perhaps detained for a substantial period of time.
      Although the Sentencing Commission has not ad-
    dressed this point, and as the government pointed out,
    the closest it came to addressing this point is Sec-
    tion 5H1.10 where among other factors such as race,
    sex, creed, religion and social economic status the Sen-
    tencing Commission determined that national origin
    should not be a factor.
      I believe that the probability of foreign incarceration
    for a crime committed in another country should belong
    to the determination of that other country and should
    not be a factor considered by a United States court in
    evaluating the appropriate sentence for a violation of
    United States law.
      And so I am going to deny the motion for a downward
    departure on the bases that I have indicated. The
    defendant has not sufficiently shown that the factors
    she has presented fall outside the heartland or that
    they are factors that the court should consider. I believe
    if the Sentencing Commission were to address this
    point, which it has not, that the Sentencing Commis-
    sion would say foreign incarceration or the probability
    of foreign incarceration is not a factor that a United
    States court should consider.
Later the district court encouraged Amoo to appeal its
ruling, observing “that this particular issue ought to be
addressed, and perhaps we can obtain guidance from either
the Court of Appeals or from the Sentencing Commission.”
As Amoo correctly points out, the district court’s explana-
tion for its decision does evidence some doubt on the part of
the court about its authority to depart. Nevertheless,
several factors convince us that the district court was
exercising its discretion not to depart.
6                                               No. 03-4233

  As an initial matter, the court used no language that
would evidence a belief that it could not depart. The court
did not explicitly assert that it lacked authority to de-
part, as district courts did in many of the cases where we
found refusals to depart subject to appellate review. See
United States v. Dote, 328 F.3d 919, 924-25 (7th Cir. 2003)
(reviewing refusal to depart where district court stated that
it did not “have the authority to downwardly depart”);
United States v. Hirsch, 280 F.3d 811, 814 (7th Cir. 2002)
(reviewing refusal to depart where district court con-
cluded that it did not “have any authority under the law
to downward depart”); United States v. Schulte, 144
F.3d 1107, 1109 (7th Cir. 1998) (“[w]e cannot depart down-
ward”). Nor did the court make a conclusion of law, which,
unlike a discretionary decision, is reviewable on appeal. See
United States v. Ekeland, 174 F.3d 902, 905 (7th Cir. 1999);
United States v. Poff, 926 F.2d 588, 590-91 (7th Cir. 1991)
(en banc). Further, the district court did not express a
perception that its discretion was cabined by legal con-
straints. See United States v. Farouil, 124 F.3d 838, 845
(7th Cir. 1997) (reviewing refusal to depart where district
court lamented not having “greater discretion, particularly
in this case”). To the contrary, in sentencing Amoo the court
employed language suggesting an exercise of discre-
tion—e.g., by using “I believe” and “should”— rather than
something more definitive. See United States v. Gulley, 992
F.2d 108, 111 (7th Cir. 1993) (noting that a statement such
as, “The guidelines do not permit a downward departure”
would clearly indicate that the district judge thought he
lacked authority to depart). In the face of the presumption
that district courts under- stand their discretion, the
absence of any clear pronouncement that the sentencing
court thought it was legally unable to depart is a formidable
obstacle in Amoo’s path.
  Moreover, we believe that our recent decision in United
States v. Hernandez, 330 F.3d 964, 990 (7th Cir. 2003),
No. 03-4233                                                 7

controls the outcome of Amoo’s appeal. In that case, al-
though we were “somewhat troubled by the district court’s
musings on the record that she was not entirely sure she
could depart,” we held that the district court had exercised
its discretion in refusing to depart downward. In
Hernandez, the district court voiced its uncertainty about
its authority to depart in much clearer terms than the
district court did here, stating explicitly that it did not
think there was a legal basis for departing, and that it
did not think it could grant a departure. Id. at 988. Never-
theless, several features of the district court’s discussion
convinced us that its refusal to depart was an unreviewable
exercise of discretion. First, in declining to depart, the
district court worked within the framework of the four
categories of sentencing factors—forbidden, encouraged,
discouraged, and unmentioned—described in Koon v. United
States, 518 U.S. 81, 94-96 (1996). See Hernandez, 330 F.3d
at 988. Second, throughout our analysis, we emphasized the
importance of reading the district court’s statements of
indecision in context, and read as a whole, we concluded
that the sentencing transcript evidenced an exercise of
discretion. Id. at 988-89.
  Amoo’s appeal is distinguishable from Hernandez only
insofar as it presents a stronger case for concluding that the
district court exercised its discretion. The district court in
this case never articulated words of doubt as did the
sentencing court in Hernandez; Amoo can only infer from
several noncommittal passages that the sentencing court
thought its hands were tied. Yet inference alone will rarely
convince us that a district court misunderstood its discre-
tion. Atkinson, 259 F.3d at 653. Further, as in Hernandez,
the district court evidenced its belief that it had discretion
by referring to Koon’s categories of sentencing factors: the
court noted that Amoo’s future punishment was not a
prohibited factor like race or national origin. Finally, the
isolated statements below that Amoo emphasizes, when
8                                                 No. 03-4233

read in context, do not show that the district court misun-
derstood its discretion.
  Amoo singles out two brief comments in the lengthy
sentencing transcript that might “reveal some indecision on
the part of the judge about [his] authority to depart.” See
Hernandez, 330 F.3d at 988. She infers that by framing the
issue as whether a United States court should “ever”
consider a successive foreign punishment, the court was
necessarily exploring the question as a categorical legal
matter. Yet in the very next paragraph, the sentencing
judge opined that Nigeria’s laws are for Nigeria alone, and
that Amoo’s prospect of future imprisonment in Nigeria was
not the concern of a United States court. Like the district
court in United States v. Wright, 37 F.3d 358, 361 n.3 (7th
Cir. 1994), the sentencing judge made a value-laden
judgment that foreign incarceration should be a matter for
the foreign jurisdiction. This decision was the essence of
discretion, and we may not second-guess it.
  Amoo further notes that at the end of the sentencing
hearing the district judge volunteered that Amoo should
consider appealing the departure decision. Although a sister
circuit has noted under similar facts that district judges
must know there will be no appellate review of a refusal to
depart “unless it was based on lack of authority to depart,”
United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002),
we are unwilling to take such a narrow view. In Taylor, the
district court also stated explicitly that it did not believe it
had authority to depart, so the reviewing court was not
faced with deciding whether an errant comment about
appellate review would be enough to compel a conclusion
that the court thought it lacked discretion to depart. Id.
Here, by contrast, Amoo has mere inference, not an explicit
assertion, that the district court believed it had no discre-
tion. In this context, the district court’s brief allusion to
appellate review weighs little in our assessment.
No. 03-4233                                                9

  Thus, although the sentencing transcript leaves some
room for doubt, we hold that the district court exercised
its discretion not to depart downward, a decision that
we are without jurisdiction to review.
  One final point. At oral argument, we invited the govern-
ment to forestall appeals like this one by clarifying unclear
sentencing decisions before the close of the sentencing
hearing, and we renew that invitation now. In this case,
simply by asking the district court at sentencing whether its
refusal to depart downward was an exercise of discretion or
the product of a conclusion that it was legally unable to
depart, the United States could have obviated the confusion
that formed the basis for appeal. See United States v.
Dowell, No. 03-2747, 2004 WL 2397335, at *2 (7th Cir. Oct.
27, 2004). And because the United States prosecutes many
criminal cases, it could significantly lighten the burden of
this court and other courts of appeal—not to mention its
own appellate staff—by taking this simple prophylactic
measure in the future.


                            III.
 Because we lack jurisdiction to consider Amoo’s claims,
we DISMISS the appeal.




  WOOD, Circuit Judge, dissenting. Try as I might, I
cannot read Judge Holderman’s thoughtful observations
in this case about his authority to depart downward in
response to defendant Kafayat Abimbola-Amoo’s motion in
the same way as the majority. The majority has reproduced
the relevant part of the transcript ante at 4-5. What stands
out to me are the following statements from the judge:
10                                               No. 03-4233

  ! [S]hould a United States court ever take into account
      a decision by a foreign country to charge and prose-
      cute an individual for a crime in that foreign country .
      . . . (Emphasis added.).
  ! I believe that the probability of foreign incarceration
      for a crime committed in another country . . . should
      not be a factor considered by a United States court in
      evaluating the appropriate sentence for a violation
      of United States law. (Emphasis added.)
  ! The defendant has not sufficiently shown that the
      factors she has presented fall outside the heartland or
      that they are factors that the court should consider.
      (Emphasis added.)
These comments leave no room, in my opinion, for the
strained interpretation that the majority gives them—
namely, that the district court judge was really saying that
he knew that he was free to depart downward based on
the possibility of foreign prosecution, but that he was
exercising his discretion not to do so. The mere fact that the
judge used the verb form “should” a couple of times, and
that he prefaced the key middle sentence with the phrase “I
believe” does not change the fact that the judge was speak-
ing in absolutes. Phrased differently, the three clauses
reproduced above are asking the following questions: should
a potential foreign punishment ever be a factor? Should it be
a factor at all? May the court even consider it as a factor?
  It is no disgrace to any judge to acknowledge that he
or she is making a legal ruling on a point on which reason-
able jurists might disagree. Judge Holderman signaled that
he was doing exactly that, and he could not have been more
explicit in his invitation to the parties to take an appeal to
this court, under the authority that exists in 18 U.S.C. §
3742. It is well established that this court has jurisdiction
to review a district court’s decision that the guidelines
No. 03-4233                                                 11

absolutely prohibit a departure on a particular ground.
United States v. Ekeland, 174 F.3d 902, 906 (7th Cir. 1999).
  There is every reason to think that the judge’s legal
conclusion may have affected the ultimate sentence Amoo
received. At one point, the judge said, in response to Amoo’s
plea to the court to take mercy on her, “I will have mercy on
you to what I believe to be the fullest extent the law al-
lows.” With that comment hanging in the air, he sentenced
her to 57 months, which was the low end of the relevant
guideline range. The most plausible reading of this ex-
change is that the judge believed that he could go no lower,
which in turn means that he thought that he was legally
unable to grant the motion for a downward departure. See
United States v. Buckowich, 243 F.3d 1081, 1082 (7th Cir.
2001). It is impossible to tell on this record whether Judge
Holderman would have granted some kind of departure, had
he concluded that he had the authority to do so. I agree
with the majority that the government should do more to
clarify ambiguous sentencing decisions, ante at 9. If we
ignore obvious ambiguities, as the majority does here,
however, that recommendation does not carry much weight.
  The only reason not to vacate the sentence and remand
for resentencing would be if this court agreed with the
district court’s legal conclusion. The majority elides this
question, ante at 3-4, but I cannot. The starting point, as
the majority acknowledges in a slightly different context, is
the four-category test set up in Koon v. United States, 518
U.S. 81, 94-96 (1996): forbidden factors, encouraged factors,
discouraged factors, and unmentioned factors. Only the first
are totally beyond the authority of the court to invoke. The
analogy the district court here drew to U.S.S.G. § 5H1.10
(the factors of race, sex, national origin, religion, and socio-
economic status are “not relevant” in the determination of
a sentence) strongly indicates that the court thought that
risk of foreign prosecution was similarly forbidden. But the
risk of foreign prosecution, even under a law that makes
12                                               No. 03-4233

certain conduct an offense only for nationals of the prosecut-
ing country, has little in common with the list contained in
§ 5H1.10. The overwhelming majority of Nigerians will
never be prosecuted under Decree 33, because they will
never be convicted of a narcotics offense in another country
and then be returned to Nigeria. There is nothing immuta-
ble or inevitable about this risk. Searching for analogies, it
is much more like a risk of double prosecution or double
punishment for the same offense. In general terms, the
Guidelines permit adjustments for this kind of problem.
See, e.g., U.S.S.G. § 5G1.3 (undischarged terms of imprison-
ment for same relevant conduct); Witte v. United States, 515
U.S. 389, 405 (1995).
  Looked at another way, this appears to be a particu-
larly harsh consequence that only an alien being removed
to Nigeria will suffer. This court held in United States
v. Bautista, 258 F.3d 602, 607 (7th Cir. 2001), that a
downward departure is possible in light of the collateral
consequences of deportation, but that any such departure
should be granted only when those consequences are
extraordinary. Following up on the latter idea, we have also
held that slight differences in end-of-sentence confinement
conditions for aliens do not support the grant
of a downward departure. United States v. Meza-Urtado,
351 F.3d 301, 305 (7th Cir. 2003). If the type of collateral
consequence identified in Bautista and Meza-Urtado is not a
forbidden basis of departure, then I see no reason why the
more draconian consequence imposed by Nigerian Decree 33
should be one.
  Instead, on the record we now have before us, it ap-
pears that Amoo might spend an additional five years
in prison and be stripped of her property after she is
removed to Nigeria; worse yet, she may fall into the abyss of
indefinite pretrial detainment with no assurance of a
reasonably prompt ruling one way or the other. This may,
depending on the record, qualify as the kind of “fortuitous
No. 03-4233                                               13

increase in the severity of [her] sentence” to which the D.C.
Circuit referred in United States v. Smith, 27 F.3d 649, 655-
56 (D.C. Cir. 1994), or the “extraordinary” collateral
consequence this court was thinking of in Bautista. The fact
that the double jeopardy principle does not prevent two
separate sovereigns from prosecuting Amoo does not, as the
government seems to think, imply that a departure here
must be precluded. The Supreme Court rejected precisely
this line of argument in Koon, 518 U.S. at 112, in the
context of the more common configuration of a state and the
federal government as the two relevant sovereigns. There
is no reason that foreign governments should be treated
differently for this purpose.
  I would hold, therefore, that the risk of foreign prosecu-
tion is not a forbidden ground of departure. Analogizing to
the various sources of law I have discussed, particularly
Bautista, I would treat it as a discouraged ground. The
proper result here would be to vacate the district court’s
decision and to remand for development of an appropri-
ate record on the basis of which the court could then
exercise its discretion. I respectfully dissent from the
majority’s decision to dismiss this appeal for want of
jurisdiction.
14                                        No. 03-4233

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—11-23-04
