        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

                            1
No. 02-6048                              United States v. Nation       3    4      United States v. Nation                    No. 02-6048

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.
