RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nation No. 02-6048 ELECTRONIC CITATION: 2003 FED App. 0441P (6th Cir.) File Name: 03a0441p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT BOYCE F. MARTIN, JR., Circuit Judge. This appeal _________________ concerns a due process challenge to 18 U.S.C. § 3742, a provision of the Sentencing Reform Act governing appellate UNITED STATES OF AMERICA , X review of otherwise final sentences. Christopher Nation Plaintiff-Appellee, - requests that we review the district court’s denial of his - downward departure motion. Nation concedes that this case - No. 02-6048 satisfies none of the requirements for appellate review that are v. - set forth in section 3742(a) and, therefore, that we lack > jurisdiction to review his sentence. He argues, however, that , his inability to appeal constitutes a violation of his Fifth CHRISTOPHER NATION, - Defendant-Appellant. - Amendment due process rights. For the reasons that follow, we hold that no due process violation has occurred and that - we lack jurisdiction to review Nation’s sentence. - N I. Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. Christopher Nation was indicted for manufacturing No. 01-00182—R. Allan Edgar, Chief District Judge. methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and for possessing materials used in the Submitted: October 23, 2003 manufacture of methamphetamine in violation of 21 U.S.C. § 843 (a)(6). He pleaded guilty to the latter charge and the Decided and Filed: December 12, 2003 parties subsequently filed various motions with respect to sentencing. The district court denied the government’s Before: KEITH, MARTIN, and SUTTON, Circuit Judges. motion for a two-level enhancement for possession of a dangerous weapon and granted Nation’s motion for a two- _________________ level reduction pursuant to the “safety valve” provisions embodied in 18 U.S.C. § 3553(f) and section 5C1.2 of the COUNSEL United States Sentencing Guidelines. ON BRIEF: Jerry H. Summers, SUMMERS & WYATT, Nation also filed a motion for a downward departure on two Chattanooga, Tennessee, for Appellant. Hugh B. Ward, Jr., other grounds. First, Nation argued that he was entitled to a ASSISTANT UNITED STATES ATTORNEY, Knoxville, downward departure pursuant to sections 5H1.2, 5H1.6 and Tennessee, for Appellee. 5H1.10 of the Sentencing Guidelines because his incarceration created an adverse collateral employment
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consequence affecting his father’s business, Nation’s Glass, guideline range, or includes a more limiting condition of Inc. Second, Nation argued that he was entitled to a probation or supervised release under section 3563(b)(6) downward departure under section 5K2.0 for a “combination or (b)(11) than the maximum established in the guideline of factors,” including his assistance to the government.1 The range; or district court held a hearing on the motion, at which Nation’s father testified on Nation’s behalf. Following the hearing, the (4) was imposed for an offense for which there is no district court denied the motion, holding that Nation was not sentencing guideline and is plainly unreasonable. entitled to a collateral employment consequence departure because he was not indispensable to his father’s business, and 18 U.S.C. § 3742(a); see also United States v. Price, 258 F.3d that while a combination of factors could generally justify a 539, 547-48 (6th Cir. 2001); United States v. Organek, 65 downward departure, there were no factors justifying such a F.3d 60, 63 (6th Cir. 1995). Nation concedes that his case departure in this case. Ultimately, the district court sentenced satisfies none of these criteria and, hence, that we lack Nation to six years and six months of imprisonment, as well jurisdiction to review his sentence. as three years of supervised release. Nation argues, however, that his inability to appeal the II. district court’s denial of his downward departure motion constitutes a violation of his Fifth Amendment due process The sole issue in this appeal concerns the district court’s rights. In essence, Nation argues that the appellate denial of Nation’s motion for a downward departure pursuant jurisdiction conferred by section 3742 impermissibly to sections 5H1.2, 5H1.6, 5H1.10 and 5K2.0 of the discriminates between appeals by a defendant and appeals by Sentencing Guidelines. Nation recognizes that 18 U.S.C. the government by making it more difficult for the defendant § 3742(a) permits a criminal defendant to appeal an otherwise to appeal a denial of a downward departure than for the final sentence only if the sentence: government to appeal a grant of a downward departure. Nation suggests that in the event that we agree that such a (1) was imposed in violation of law; violation has occurred, we should assume jurisdiction over his appeal and review the district court’s denial of his downward (2) was imposed as a result of an incorrect application of departure motion for abuse of discretion. the sentencing guidelines; [] Contrary to Nation’s assertion, we find no due process (3) is greater than the sentence specified in the applicable violation. Nation has no constitutional right to appeal his guideline range to the extent that the sentence includes a sentence. It is beyond peradventure that appellate jurisdiction greater fine or term of imprisonment, probation, or is conferred solely by statute. See Abney v. United States, 431 supervised release than the maximum established in the U.S. 651, 656 (1977); United States v. Yeager, 303 F.3d 661, 664 (6th Cir. 2002). By enacting section 3742, Congress has conferred appellate jurisdiction – albeit limited appellate 1 Nation concedes that his assistance to the government was jurisdiction – with respect to district courts’ sentencing insufficient to warrant a “substantial assistance” de parture pursuant to decisions. section 5K 1.1 of the Sentencing Guidelines. He contends, however, that his assistance to the government, in combination with other factors, was sufficient to w arrant a downward departure pursuan t to section 5K 2.0. No. 02-6048 United States v. Nation 5 6 United States v. Nation No. 02-6048
Under section 3742, a defendant’s right to appeal a Because section 3742 does not violate due process – and sentence is essentially the mirror image of the government’s because, as Nation concedes, this case satisfies none of the right to appeal a sentence. Just as section 3742(a) provides requirements for appellate review as set forth in section only limited circumstances in which a defendant may appeal, 3742(a) – we lack jurisdiction to review the district court’s section 3742(b) provides that the government may appeal an denial of Nation’s downward departure motion.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nation No. 02-6048 ELECTRONIC CITATION: 2003 FED App. 0441P (6th Cir.) File Name: 03a0441p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT BOYCE F. MARTIN, JR., Circuit Judge. This appeal _________________ concerns a due process challenge to 18 U.S.C. § 3742, a provision of the Sentencing Reform Act governing appellate UNITED STATES OF AMERICA , X review of otherwise final sentences. Christopher Nation Plaintiff-Appellee, - requests that we review the district court’s denial of his - downward departure motion. Nation concedes that this case - No. 02-6048 satisfies none of the requirements for appellate review that are v. - set forth in section 3742(a) and, therefore, that we lack > jurisdiction to review his sentence. He argues, however, that , his inability to appeal constitutes a violation of his Fifth CHRISTOPHER NATION, - Defendant-Appellant. - Amendment due process rights. For the reasons that follow, we hold that no due process violation has occurred and that - we lack jurisdiction to review Nation’s sentence. - N I. Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. Christopher Nation was indicted for manufacturing No. 01-00182—R. Allan Edgar, Chief District Judge. methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and for possessing materials used in the Submitted: October 23, 2003 manufacture of methamphetamine in violation of 21 U.S.C. § 843 (a)(6). He pleaded guilty to the latter charge and the Decided and Filed: December 12, 2003 parties subsequently filed various motions with respect to sentencing. The district court denied the government’s Before: KEITH, MARTIN, and SUTTON, Circuit Judges. motion for a two-level enhancement for possession of a dangerous weapon and granted Nation’s motion for a two- _________________ level reduction pursuant to the “safety valve” provisions embodied in 18 U.S.C. § 3553(f) and section 5C1.2 of the COUNSEL United States Sentencing Guidelines. ON BRIEF: Jerry H. Summers, SUMMERS & WYATT, Nation also filed a motion for a downward departure on two Chattanooga, Tennessee, for Appellant. Hugh B. Ward, Jr., other grounds. First, Nation argued that he was entitled to a ASSISTANT UNITED STATES ATTORNEY, Knoxville, downward departure pursuant to sections 5H1.2, 5H1.6 and Tennessee, for Appellee. 5H1.10 of the Sentencing Guidelines because his incarceration created an adverse collateral employment
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consequence affecting his father’s business, Nation’s Glass, guideline range, or includes a more limiting condition of Inc. Second, Nation argued that he was entitled to a probation or supervised release under section 3563(b)(6) downward departure under section 5K2.0 for a “combination or (b)(11) than the maximum established in the guideline of factors,” including his assistance to the government.1 The range; or district court held a hearing on the motion, at which Nation’s father testified on Nation’s behalf. Following the hearing, the (4) was imposed for an offense for which there is no district court denied the motion, holding that Nation was not sentencing guideline and is plainly unreasonable. entitled to a collateral employment consequence departure because he was not indispensable to his father’s business, and 18 U.S.C. § 3742(a); see also United States v. Price, 258 F.3d that while a combination of factors could generally justify a 539, 547-48 (6th Cir. 2001); United States v. Organek, 65 downward departure, there were no factors justifying such a F.3d 60, 63 (6th Cir. 1995). Nation concedes that his case departure in this case. Ultimately, the district court sentenced satisfies none of these criteria and, hence, that we lack Nation to six years and six months of imprisonment, as well jurisdiction to review his sentence. as three years of supervised release. Nation argues, however, that his inability to appeal the II. district court’s denial of his downward departure motion constitutes a violation of his Fifth Amendment due process The sole issue in this appeal concerns the district court’s rights. In essence, Nation argues that the appellate denial of Nation’s motion for a downward departure pursuant jurisdiction conferred by section 3742 impermissibly to sections 5H1.2, 5H1.6, 5H1.10 and 5K2.0 of the discriminates between appeals by a defendant and appeals by Sentencing Guidelines. Nation recognizes that 18 U.S.C. the government by making it more difficult for the defendant § 3742(a) permits a criminal defendant to appeal an otherwise to appeal a denial of a downward departure than for the final sentence only if the sentence: government to appeal a grant of a downward departure. Nation suggests that in the event that we agree that such a (1) was imposed in violation of law; violation has occurred, we should assume jurisdiction over his appeal and review the district court’s denial of his downward (2) was imposed as a result of an incorrect application of departure motion for abuse of discretion. the sentencing guidelines; [] Contrary to Nation’s assertion, we find no due process (3) is greater than the sentence specified in the applicable violation. Nation has no constitutional right to appeal his guideline range to the extent that the sentence includes a sentence. It is beyond peradventure that appellate jurisdiction greater fine or term of imprisonment, probation, or is conferred solely by statute. See Abney v. United States, 431 supervised release than the maximum established in the U.S. 651, 656 (1977); United States v. Yeager, 303 F.3d 661, 664 (6th Cir. 2002). By enacting section 3742, Congress has conferred appellate jurisdiction – albeit limited appellate 1 Nation concedes that his assistance to the government was jurisdiction – with respect to district courts’ sentencing insufficient to warrant a “substantial assistance” de parture pursuant to decisions. section 5K 1.1 of the Sentencing Guidelines. He contends, however, that his assistance to the government, in combination with other factors, was sufficient to w arrant a downward departure pursuan t to section 5K 2.0. No. 02-6048 United States v. Nation 5 6 United States v. Nation No. 02-6048
Under section 3742, a defendant’s right to appeal a Because section 3742 does not violate due process – and sentence is essentially the mirror image of the government’s because, as Nation concedes, this case satisfies none of the right to appeal a sentence. Just as section 3742(a) provides requirements for appellate review as set forth in section only limited circumstances in which a defendant may appeal, 3742(a) – we lack jurisdiction to review the district court’s section 3742(b) provides that the government may appeal an denial of Nation’s downward departure motion. This holding otherwise final sentence only if the sentence: is compelled by our recognition of Congress’s unique authority to confer appellate jurisdiction, and in no way (1) was imposed in violation of law; discourages criminal defendants who desire appellate review of their sentences from seeking such review in circumstances (2) was imposed as a result of an incorrect application of authorized by Congress. the sentencing guidelines; AFFIRMED. (3) is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the 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(b). The only distinction that section 3742 draws between a defendant’s right to appeal and the government’s right to appeal is that a defendant may appeal a sentence only when it is “greater than” the guideline range (or includes a “more limiting” condition of probation or supervised release), while the government may appeal a sentence only when it is “less than” the guideline range (or includes a “less limiting” condition of probation or supervised release). Compare 18 U.S.C. § 3742(a)(3), with id. at § 3742(b)(3). That is a distinction without a difference, however, and does not demonstrate any impermissible discrimination between appeals by a defendant and appeals by the government.