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 CruzGuevara was deported from the United States as a

result of a conviction for an aggravated felony.

In October 1998, Cruz-Guevara illegally reentered 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 resentencing.

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, CruzGuevara 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 CruzGuevara’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 CruzGuevara 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 CruzGuevara’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 CruzGuevara’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 CruzGuevara’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.