United States v. Robert David Linn, Jr.

Robert David Linn, Jr., appeals the 188-month sentence imposed following his plea of guilty to possession with intent to distribute methamphetamine and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 (a)(1). He argues that his classification as a career criminal under U.S.S.G. § 4B1.2(b) produced a sentencing range that over-represents his criminal history and, therefore, the district court’s failure to exercise its discretion to depart downward violates the tenets of 18 U.S.C. § 3553 (a). Although Linn concedes that appellate courts traditionally have not been permitted to review discretionary denials to depart, he contends that the Pros-ecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub.L. 108-21, 117 Stat. 650 (Apr. 30, 2003) (the “PROTECT Act”), now mandates review of discretionary denials. We dismiss the appeal for lack of jurisdiction.

It is settled law that 18 U.S.C. § 3742 strips us of jurisdiction to review a discretionary denial of a downward departure. See United States v. Ruiz, 536 U.S. 622, 627 , 122 S.Ct. 2450 , 153 L.Ed.2d 586 (2002) (acknowledging the unanimity of the Courts of Appeals, and…