In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2878

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEONARD ARON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 616—John W. Darrah, Judge.

____________

ARGUED JANUARY 21, 2003—DECIDED MAY 13, 2003

____________

Before POSNER, KANNE, and DIANE P. WOOD, Circuit

Judges.

KANNE, Circuit Judge. Leonard Aron pleaded guilty to

one count of wire fraud, based on two separate, fraudulent

transactions. The district court sentenced him to 60

months imprisonment. At sentencing, Aron moved for a

downward departure, which the district court denied.

Because the district court recognized that it had the

legal authority to depart downward but found that the

facts of Aron’s case did not warrant a departure, we have

no jurisdiction, and this appeal is dismissed.
2 No. 02-2878

I. History

Underlying the wire-fraud charge in this case are two

transactions involving fraudulent bonds distributed by

Leonard Aron, a seventy-four-year-old man with four prior

felony convictions dating back to the 1960s. The first

transaction in this case commenced in 1996 when Aron

traveled to Florida to visit Franco Nicoletti, a man he

originally met while serving time at a federal prison in the

mid-1980s. Nicoletti had been trying to obtain a loan of $8-

9 million from Richard Rendina, a Florida attorney. Aron

informed Nicoletti that he had access to counterfeit bonds

that Nicoletti could use to secure the loan. The two made

a deal whereby Aron sent $8.7 million in counterfeit

bonds to Nicoletti in return for an up-front fee of 25% of

the value of the loan.

During Nicoletti’s subsequent efforts to obtain the loan,

Rendina became suspicious of the bonds and contacted

law enforcement. The authorities devised an operation to

set up Nicoletti to tender the bonds to an undercover agent.

The operation was successful, and Nicoletti was arrested

and subsequently indicted on federal charges stemming

from the delivery of counterfeit bonds. No charges were

filed against Aron at that time.

The second transaction underlying Aron’s wire fraud

charge occurred in early 2000 when a Chicago entrepreneur put him in touch with an individual in Florida wishing to obtain capital for a business investment. In April

2000, Aron sold this individual $1.96 million in counterfeit bonds in two installments. A few days after the second installment, the individual discovered a problem

with the bonds and went to the authorities to report his

dealings with Aron.

Following an investigation, a federal grand jury indicted Aron on three counts—wire fraud, interstate transportation of a security taken by fraud, and uttering coun-
No. 02-2878 3

terfeit securities, in violation of 18 U.S.C. §§ 1343, 2314,

& 513(a). Pursuant to a written plea agreement, Aron

pleaded guilty to one count of wire fraud, and the other

charges were dismissed.

At his sentencing hearing, Aron sought a three-level

downward departure under USSG § 5K2.0, arguing that

the $8.7 million portion of the intended loss (based on the

1996 transaction) would have been impossible to achieve

because it involved a government sting operation. The

government countered that Aron should not receive a

downward departure on the basis of impossibility because this was not a classic sting operation where the

intended loss is impossible because the undercover agents

will never actually purchase the contraband. Rather, the

government argued, given that these bonds were in existence and that Aron was engaged in an ongoing criminal

scheme involving the bonds, the intended loss of $8.7

million was neither unrealistic nor impossible. In other

words, had the authorities not entered the picture, Nicoletti

and Aron most likely would have tendered the bonds to

some other individual or institution willing to provide

the loan.

The district court denied Aron’s motion for a downward

departure, providing two separate reasons for the denial.

First, the court agreed with the government that the

intended loss of $8.7 million was not impossible: “Given

the totality of the facts and circumstances . . . I find that

it is not unreasonable to conclude that intended loss of

an additional eight million dollars was contemplated by

the defendant and that a loss based on the additional

eight million dollars is not impossible or fanciful.” (S.Tr.

at 21.) Second, the court stated that even “if the defendant were to be considered eligible for a downward departure because such an amount would be deemed . . . to be

impossible . . . I find that based on the defendant’s criminal

history . . . that it would not be the appropriate exercise
4 No. 02-2878

of this court’s discretion to grant such a downward departure.” (Id.)

In this appeal, Aron argues that the district court erred

in refusing to grant him the downward departure based

on impossibility. He does not challenge, or even mention,

the district court’s alternative basis for not granting

the departure—that even if Aron did qualify for a downward departure based on impossibility, the district court

would not exercise its discretion to depart because of

Aron’s criminal history.

II. Analysis

Appellate review of sentences is controlled by 18 U.S.C.

§ 3742. Section 3742(a) provides four circumstances under

which a defendant may seek appellate review of a sentence imposed against him: “if the sentence (1) was imposed in violation of law; (2) was imposed as a result of

an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable

guideline range . . . ; or (4) was imposed for an offense

for which there is no sentencing guideline and is plainly

unreasonable.” 18 U.S.C. §3742(a) (2003). In United States

v. Franz, we determined based on the statute’s structure

and legislative history that a defendant may seek review

of a district court’s refusal to depart downward only under

§ 3742(a)(1)—that is, if the sentence was imposed in

violation of the law. 886 F.2d 973, 977-80 (7th Cir. 1989).

Therefore, “[i]f there is no legal error in the sentence . . .

then there is no jurisdiction over a defendant’s claim that

the court should have departed downward.” United States

v. Crucean, 241 F.3d 895, 898 (7th Cir. 2001).

We have repeatedly held that there is no legal error,

and therefore no jurisdiction for appellate review of a

district court’s refusal to depart downward, when the

district court understood that it had the legal authority
No. 02-2878 5

to depart but, in its discretion, chose not to do so. See, e.g.,

United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002);

United States v. Albarran, 233 F.3d 972, 978 (7th Cir.

2000); United States v. Wright, 37 F.3d 358, 360-61 (7th Cir.

1994).

For instance, in United States v. Lewis, the defendant,

charged with various drug offences, argued that a downward departure was warranted because he had undergone pre-sentence rehabilitative treatment for his drug

dependency. 79 F.3d 688, 692 (7th Cir. 1996). The defendant noted that under the guidelines, a downward departure may be given “if the rehabilitation is so extraordinary as to suggest its presence to a degree not adequately

taken into consideration by the acceptance of responsibility reduction.” Id. (quoting United States v. Harrington,

947 F.2d 956, 962 (D.C. Cir. 1991)) (citations omitted).

The district court refused to depart downward, noting

that defendant’s rehabilitative efforts, while honorable,

were not so extraordinary that they were not adequately

considered in the acceptance of responsibility reduction. Id.

at 692-93. On appeal, we held that we had no jurisdiction

to review the district court’s refusal to depart because

“it was clear that the district court denied Lewis’ departure motion not because it lacked the legal authority to

depart” but because the court determined that Lewis’s

rehabilitative efforts simply were not extraordinary enough

to warrant a departure. Id. at 693.

Similarly, the transcript of Aron’s sentencing hearing

reveals that the district court recognized that it had the

authority to depart but found that the facts simply did not

warrant the exercise of that authority. The court stated:

“Given the totality of the facts and circumstances of this

case . . . I find that it is not unreasonable to conclude

that intended loss of an additional eight million dollars

was contemplated by the defendant and that a loss based

on the additional eight million dollars is not impossible

or fanciful.” (S.Tr. at 21.) This statement reveals that
6 No. 02-2878

the court recognized that it could depart if the intended

loss was impossible, but refused to depart because it

made the factual determination that the intended loss

in this case was not impossible. Therefore, the district

court committed no legal error, and we lack jurisdiction

over this appeal.

Moreover, even if the district court did not recognize its

authority to depart, we still would be without jurisdiction because the district court had a separate and independent reason for refusing the downward departure. The court

stated that even assuming that the intended loss was

impossible, it would not grant a downward departure

because “based on the defendant’s criminal history, particularly his recent criminal history at an advanced age, that

it would not be the appropriate exercise of this court’s

discretion to grant such a downward departure.” This

alternative reason for refusing to depart was an exercise

of the district court’s discretion that is not reviewable

by this court. See United States v. Wright, 37 F.3d 358, 360-

61 (7th Cir. 1994) (“We have no jurisdiction to review a

district court’s discretionary refusal to depart downward

from the Guidelines.”).

III. Conclusion

For the foregoing reasons, we lack jurisdiction to review the district court’s refusal to grant a downward

departure. This appeal is DISMISSED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-13-03