the majority’s opinion insofar as it rejects appellant’s fifth, sixth, and fourteenth amendment claims, each of which bears on the validity of her underlying conviction. I disagree strongly, however, with the majority's treatment of the sentencing issues. As I read the record, the district court felt legally prohibited from departing from the sentencing guidelines. As I see it, whether or not the district court was correct in this regard, the question whether a discretionary refusal to depart is appeal-able simply does not arise. Because the majority decides that question, however, I address it as well. Despite its novelty, the question whether refusals to depart are appealable has already provoked sharp disagreement. Compare, e.g., United States v. Colon, 884 F.2d 1550 (2d Cir.1989) (<HOLDING>); and United States v. Franz, 886 F.2d 973 (7th
holding that the district court must give parties notice of intent to depart holding that the district courts decision not to depart downward was discretionary and not reviewable where the court considered the proffered reasons for departure but found them lacking holding that discretionary refusals to depart are not appealable recognizing that a defendant may appeal a district courts refusal to depart downward if the sentence was imposed in violation of law because the district court misconstrued its authority to depart holding that a circuit court has no jurisdiction to review a district courts discretionary decision not to depart downward from the guidelines but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart