United States of America v. Christopher Nation

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0441P (6th Cir.)
File Name: 03a0441p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER NATION,
Defendant-Appellant.
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No. 02-6048
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00182—R. Allan Edgar, Chief District Judge.
Submitted: October 23, 2003
Decided and Filed: December 12, 2003
Before: KEITH, MARTIN, and SUTTON, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jerry H. Summers, SUMMERS & WYATT,
Chattanooga, Tennessee, for Appellant. Hugh B. Ward, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee.
2 United States v. Nation No. 02-6048
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OPINION
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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
review of otherwise final sentences. Christopher Nation
requests that we review the district court’s denial of his
downward departure motion. Nation concedes that this case
satisfies none of the requirements for appellate review that are
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
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.
I.
Christopher Nation was indicted for manufacturing
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), and for possessing materials used in the
manufacture of methamphetamine in violation of 21 U.S.C.
§ 843 (a)(6). He pleaded guilty to the latter charge and the
parties subsequently filed various motions with respect to
sentencing. The district court denied the government’s
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
United States Sentencing Guidelines.
Nation also filed a motion for a downward departure on two
other grounds. First, Nation argued that he was entitled to a
downward departure pursuant to sections 5H1.2, 5H1.6 and
5H1.10 of the Sentencing Guidelines because his
incarceration created an adverse collateral employment

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No. 02-6048 United States v. Nation 3
1Nation concedes that his assistance to the government was
insufficient to warrant a “substantial assistance” de parture pursuant to
section 5K1.1 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 pursuant to section 5K 2.0.
consequence affecting his father’s business, Nation’s Glass,
Inc. Second, Nation argued that he was entitled to a
downward departure under section 5K2.0 for a “combination
of factors,” including his assistance to the government.1 The
district court held a hearing on the motion, at which Nation’s
father testified on Nation’s behalf. Following the hearing, the
district court denied the motion, holding that Nation was not
entitled to a collateral employment consequence departure
because he was not indispensable to his father’s business, and
that while a combination of factors could generally justify a
downward departure, there were no factors justifying such a
departure in this case. Ultimately, the district court sentenced
Nation to six years and six months of imprisonment, as well
as three years of supervised release.
II.
The sole issue in this appeal concerns the district court’s
denial of Nation’s motion for a downward departure pursuant
to sections 5H1.2, 5H1.6, 5H1.10 and 5K2.0 of the
Sentencing Guidelines. Nation recognizes that 18 U.S.C.
§ 3742(a) permits a criminal defendant to appeal an otherwise
final sentence only if the sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of
the sentencing guidelines; []
(3) is greater than the sentence specified in the applicable
guideline range to the extent that the sentence includes a
greater fine or term of imprisonment, probation, or
supervised release than the maximum established in the
4 United States v. Nation No. 02-6048
guideline range, or includes a more limiting condition of
probation or supervised release under section 3563(b)(6)
or (b)(11) than the maximum 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(a); see also United States v. Price, 258 F.3d
539, 547-48 (6th Cir. 2001); United States v. Organek, 65
F.3d 60, 63 (6th Cir. 1995). Nation concedes that his case
satisfies none of these criteria and, hence, that we lack
jurisdiction to review his sentence.
Nation argues, however, that his inability to appeal the
district court’s denial of his downward departure motion
constitutes a violation of his Fifth Amendment due process
rights. In essence, Nation argues that the appellate
jurisdiction conferred by section 3742 impermissibly
discriminates between appeals by a defendant and appeals by
the government by making it more difficult for the defendant
to appeal a denial of a downward departure than for the
government to appeal a grant of a downward departure.
Nation suggests that in the event that we agree that such a
violation has occurred, we should assume jurisdiction over his
appeal and review the district court’s denial of his downward
departure motion for abuse of discretion.
Contrary to Nation’s assertion, we find no due process
violation. Nation has no constitutional right to appeal his
sentence. It is beyond peradventure that appellate jurisdiction
is conferred solely by statute. See Abney v. United States, 431
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
jurisdiction – with respect to district courts’ sentencing
decisions.

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No. 02-6048 United States v. Nation 5
Under section 3742, a defendant’s right to appeal a
sentence is essentially the mirror image of the government’s
right to appeal a sentence. Just as section 3742(a) provides
only limited circumstances in which a defendant may appeal,
section 3742(b) provides that the government may appeal an
otherwise final sentence only if the sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of
the sentencing guidelines;
(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.
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Because section 3742 does not violate due process – and
because, as Nation concedes, this case satisfies none of the
requirements for appellate review as set forth in section
3742(a) – we lack jurisdiction to review the district court’s
denial of Nation’s downward departure motion. This holding
is compelled by our recognition of Congress’s unique
authority to confer appellate jurisdiction, and in no way
discourages criminal defendants who desire appellate review
of their sentences from seeking such review in circumstances
authorized by Congress.
AFFIRMED.

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