The opinion
*942 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 Kafa-yat Abimbola-Amoo’s motion in the same way as the majority. The majority has reproduced the relevant part of the transcript ante at 938-39. What stands out to me are the following statements from the judge:
• [Sjhould a United States court ever take into account a decision by a foreign country to charge and prosecute 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 speaking 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 reasonable 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 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 allows.” 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 exchange 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 941. 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 *943 be if this court agreed with the district court’s legal conclusion. The majority elides this question, ante at 938-39, 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 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (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 socioeconomic 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 certain conduct an offense only for nationals of the prosecuting 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 immutable 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 imprisonment for same relevant conduct); Witte v. United States, 515 U.S. 389, 405 , 115 S.Ct. 2199 , 132 L.Ed.2d 351 (1995).
Looked at another way, this appears to be a particularly 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 appears 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 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 Bau-tista. 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 , 116 S.Ct. 2035 , 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 prosecution 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 *944 discouraged ground. The proper result here would be to vacate the district court’s decision and to remand for development of an appropriate 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.