United States v. Christopher Leniear

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30199
Plaintiff-Appellee, D.C. No.
v. 3:04-CR-00047-
JKS-1
CHRISTOPHER LENIEAR,
Defendant-Appellant.  ORDER
AMENDING
OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
March 12, 2009—Seattle, Washington
Filed June 18, 2009
Amended July 27, 2009
Before: William A. Fletcher, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
9683
9686 UNITED STATES v. LENIEAR
COUNSEL
Allan D. Beiswenger, Anchorage, Alaska, for the defendant-
appellant.
Audrey J. Renschen (argued) and Jo Ann Farrington, Assis-
tant United States Attorneys, and Nelson P. Cohen, United
States Attorney, Anchorage, Alaska, for the plaintiff-appellee.
ORDER
The mandate is recalled. The opinion filed June 18, 2009,
is hereby amended. We make the following changes to the
slip opinion:
On slip opinion page 7320, first paragraph, delete the fol-
lowing text: “and 18 U.S.C. § 3742”.
On slip opinion page 7324, lines 2-3, delete the following
text: “see United States v. Lowe, 136 F.3d 1231, 1232 (9th
Cir. 1998),”.
On slip opinion page 7325, add the following text at the
end of the first full paragraph: “Cf. United States v. Paulk,
No. 08-50229 (holding that a defendant sentenced pursuant to
a statutory mandatory minimum is not entitled to a reduction
of his prison sentence under Amendment 706).”
The Clerk is directed to re-issue the mandate immediately
upon filing of the amended opinion.
UNITED STATES v. LENIEAR 9687
OPINION
TALLMAN, Circuit Judge:
Christopher Leniear appeals the district court’s denial of his
motion for a sentence reduction based on Amendment 706 to
the United States Sentencing Guidelines (“U.S.S.G.” or “Sen-
tencing Guidelines”). Amendment 706 reduced by two points
the base offense level assigned to each threshold quantity of
crack cocaine listed in the U.S.S.G. § 2D1.1 Drug Quantity
Table. We have jurisdiction under 28 U.S.C. § 1291. Because
Leniear is not eligible for a reduction of his prison sentence
under Amendment 706, we affirm.
I
Pursuant to a written plea agreement with the government,
Leniear pleaded guilty to four counts: (1) possession of
cocaine base with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C); (2) possession of a firearm during
and in relation to and in furtherance of drug trafficking in vio-
lation of 18 U.S.C. § 924(c)(1)(A); (3) possession of an
unregistered silencer in violation of 26 U.S.C. §§ 5861(d) and
5871; and (4) criminal forfeiture in violation of 21 U.S.C.
§ 853(a)(2). As part of the agreement, Leniear waived his
right under 18 U.S.C. § 3742 to appeal the sentence imposed.
He also waived his right to collaterally attack his sentence,
except on the basis of ineffective assistance of counsel or lack
of voluntary consent to the plea agreement. The district court
confirmed at a change of plea hearing that Leniear understood
that he was waiving the right to appeal or collaterally attack
his sentence.
Prior to sentencing, a presentence investigation report
(“PSR”) was prepared using the Sentencing Guidelines effec-
tive as of November 5, 2003. Where counts in a multi-count
conviction involve substantially the same harm, the Sentenc-
ing Guidelines require that they be grouped for calculation of
9688 UNITED STATES v. LENIEAR
the offense level. U.S.S.G. § 3D1.2. Otherwise, U.S.S.G.
§ 3D1.4 “requires the imposition of a discounted enhance-
ment based on the number and severity of the counts.” United
States v. Nanthanseng, 221 F.3d 1082, 1083 (9th Cir. 2000).
The PSR concluded that the counts to which Leniear pleaded
guilty could not be grouped and thus had to be treated sepa-
rately.
With respect to Count One, the probation officer deter-
mined that the drugs seized from Leniear were equivalent to
41.05 kilograms of marijuana,1 and thus assigned a base
offense level of 20 pursuant to U.S.S.G. § 2D1.1. With
respect to Count Three, the PSR assigned a base offense level
of 18 pursuant to U.S.S.G. § 2K2.1 and added two additional
points because the seized silencer and other firearms were
stolen, for a total offense level of 20. Applying U.S.S.G.
§ 3D1.4, the PSR then computed a combined offense level of
22 for Counts One and Three,2 but deducted three points for
acceptance of responsibility. Applying a total offense level of
19 and a criminal history category of I, the PSR recom-
mended that Leniear be imprisoned for 30 to 37 months on
Counts One and Three.
With respect to Count Two, the PSR noted that U.S.S.G.
§ 2K2.4 establishes a guideline sentence equivalent to the
statutory minimum sentence. It thus recommended a prison
1
The PSR recommended that Leniear be held responsible for 35.1 grams
of marijuana, 5.1 grams of powder cocaine, and 2.0 grams of crack
cocaine.
2
U.S.S.G. § 3D1.4 instructs that the combined offense level is deter-
mined by taking the highest offense level in the group and increasing that
level by the amount indicated in a table. That table bases the increase in
offense level on the number of “units” in the group. The count with the
highest offense level constitutes one unit, as does each count that is either
equally serious or between one and four levels less serious. Here, an
offense level of 20 was assigned to each of Counts One and Three.
Because the grouping contains two units, the table instructs increasing the
offense level by two points, for a combined offense level of 22.
UNITED STATES v. LENIEAR 9689
term of five years to run consecutively to the term imposed
on Counts One and Three.
On January 6, 2005, the district court sentenced Leniear to
30 months on each of Counts One and Three, to be served
concurrently, as well as to the statutory minimum sentence of
five years for Count Two, to be served consecutively to the
sentences for Counts One and Three. Leniear filed a pro se
motion on March 11, 2008, seeking a reduction in his sen-
tence based on Amendment 706. The court granted Leniear’s
subsequent request for appointment of counsel. After holding
a hearing on May 28, 2008, the district court denied the resen-
tencing motion. The court concluded that it lacked jurisdiction
to modify Leniear’s sentence because, in light of the grouping
rules under U.S.S.G. § 3D1.4, Amendment 706 did not lower
the applicable guideline range. Leniear timely appealed.
II
[1] The government contends that the instant appeal is
barred by the waiver contained in its plea agreement with
Leniear:
The defendant also understands and agrees that as
consideration for the government’s commitments
under this plea agreement, and if the court accepts
this plea agreement and imposes a sentence no
greater than the maximum statutory penalties avail-
able for the offense of conviction, including any for-
feiture under this plea agreement, he will knowingly
and voluntarily waive his right, contained in 18
U.S.C. § 3742, to appeal the sentence—including all
conditions of supervised release and forfeiture—
imposed.
We consider de novo whether, pursuant to a plea agreement,
a defendant waived his right to appeal. United States v. Speel-
man, 431 F.3d 1226, 1229 (9th Cir. 2005). Specifically, “[a]
9690 UNITED STATES v. LENIEAR
defendant’s waiver of his appellate rights is enforceable if (1)
the language of the waiver encompasses his right to appeal on
the grounds raised, and (2) the waiver is knowingly and vol-
untarily made.”3 Id. (quoting United States v. Jeronimo, 398
F.3d 1149, 1153 (9th Cir. 2005)). As Leniear does not argue
on appeal that the waiver was anything other than knowing
and voluntary, we consider only whether the instant appeal is
encompassed within the waiver’s scope.
[2] Although Leniear appeals pursuant to 18 U.S.C. § 3742,
his appeal is not barred by the above waiver. “The scope of
a knowing and voluntary waiver is demonstrated by the
express language of the plea agreement.” United States v.
Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000). “Plea agree-
ments are generally construed according to the principles of
contract law, and the government, as drafter, must be held to
an agreement’s literal terms.” Id. at 1067 (citations omitted);
see also Speelman, 431 F.3d at 1229-31 (finding that defen-
dant did not waive his right to directly appeal his sentence
where the waiver referenced “any post-conviction proceed-
ing,” as this term commonly refers only to collateral chal-
lenges). The waiver signed by Leniear bars only his right
under 18 U.S.C. § 3742 “to appeal the sentence . . . imposed.”
Yet here, Leniear is appealing not his sentence, but rather the
district court’s conclusion that it lacked jurisdiction to modify
his sentence. Thus, under the express language of the plea
agreement, Leniear did not waive his right to pursue this
appeal, and we may reach the merits.
3
Collateral attack pursuant to a statutory provision is also subject to a
knowing and voluntary waiver. United States v. Abarca, 985 F.2d 1012,
1014 (9th Cir. 1993). As part of the plea agreement, Leniear also waived
the right to collaterally attack his sentence. However, because the govern-
ment did not argue below that a resentencing motion is a collateral attack
barred by Leniear’s waiver, we consider the issue waived. See United
States v. Perez-Corona, 295 F.3d 996, 1000 (9th Cir. 2002).
UNITED STATES v. LENIEAR 9691
III
Leniear contends that the district court erred in concluding
that it had no jurisdiction to modify his sentence. In particular,
Leniear argues that because one of the counts for which he
was sentenced involved crack cocaine, he is eligible for a
reduction in his prison term under Amendment 706 to the
Sentencing Guidelines. We review de novo whether a district
court has jurisdiction to resentence a defendant under 18
U.S.C. § 3582. United States v. Aguirre, 214 F.3d 1122, 1124
(9th Cir. 2000).
[3] The Sentencing Commission promulgated Amendment
706 in response to the disparity in sentencing between
offenses involving crack cocaine and powder cocaine. See
generally Kimbrough v. United States, 128 S. Ct. 558, 566-69
(2007) (describing the evolving treatment of crack and pow-
der cocaine under the Sentencing Guidelines). Pursuant to the
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat.
3207, one hundred times more powder cocaine than crack
cocaine is required to trigger the same statutory minimum
penalty. See 21 U.S.C. § 841(b). In setting offense levels for
crack and powder cocaine, the Sentencing Commission at first
adopted the same 100-to-1 ratio. However, Amendment 706,
which became effective on November 1, 2007, reduces this
disparity by adjusting downward by two points the base
offense levels assigned to various quantities of crack cocaine
in the Drug Quantity Table in U.S.S.G. § 2D1.1.
[4] “As a general matter, courts may not alter a term of
imprisonment once it has been imposed.” United States v.
Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007). However, 18
U.S.C. § 3582(c)(2) creates an exception to this rule by allow-
ing modification of a term of imprisonment if: (1) the sen-
tence is “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission”; and (2) “such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” As Amendment 713
9692 UNITED STATES v. LENIEAR
applies Amendment 706 retroactively, courts may now mod-
ify a term of imprisonment where the underlying offense
involves crack cocaine—but only if the two requirements of
§ 3582(c)(2) are satisfied in a given case. Leniear’s motion
for resentencing, based on Amendment 706, fails to satisfy
both elements. Cf. United States v. Paulk, No. 08-50229
(holding that a defendant sentenced pursuant to a statutory
mandatory minimum is not entitled to a reduction of his
prison sentence under Amendment 706).
[5] First, the sentencing range applicable to Leniear would
have been the same even if Amendment 706 had been in place
at the time he was sentenced.4 Admittedly, Amendment 706
reduces from 20 to 18 the base offense level for Count One.
However, the combined offense level under U.S.S.G. § 3D1.4
would have remained 22 because the offense level for Count
Three would have remained 20 and the grouping contained
two units. Thus, Leniear’s sentence is not “based on a sen-
tencing range that has subsequently been lowered by the Sen-
tencing Commission,” as required by § 3582(c)(2).
[6] Leniear argues that § 3582(c)(2) should be interpreted
to allow sentence modification where the term is based in part
on a guideline offense level that was subsequently lowered.
But § 3582(c)(2) explicitly states that it applies only where
the “sentencing range”—not the offense level—to which the
4
Why, then, does Leniear even seek resentencing? The district court
sentenced Leniear six days before the Supreme Court issued its decision
in United States v. Booker, 543 U.S. 220 (2005), and thus treated the Sen-
tencing Guidelines as mandatory. The Ninth Circuit has since held that
“district courts are necessarily endowed with the discretion to depart from
the Guidelines when issuing new sentences under § 3582(c)(2).” Hicks,
472 F.3d at 1170. Thus, if Amendment 706 establishes jurisdiction under
§ 3582(c)(2) to resentence Leniear, it would allow the district court to
reduce the sentence it imposed even though the applicable sentencing
range would remain unaltered. The district court indicated that had the
Sentencing Guidelines been advisory at the time it sentenced Leniear, it
likely would have imposed a sentence of only “a month or two” for
Counts One and Three.
UNITED STATES v. LENIEAR 9693
defendant is subject has since been lowered by the Sentencing
Commission. Ninth Circuit caselaw clearly distinguishes an
offense level from a guideline range. See, e.g., United States
v. Ameline, 409 F.3d 1073, 1086 (9th Cir. 2005) (en banc)
(“The district court’s factual findings will determine the base
offense level, which remains the starting point for determin-
ing the applicable guideline range . . . .”). Leniear nonetheless
claims that the term “sentencing range” includes not only
what might be termed the “ultimate sentencing range” but
also sentencing ranges corresponding to any base offense
levels. This argument ignores the fact that only one sentenc-
ing range is calculated in the course of a sentencing recom-
mendation; a sentencing range is not determined for each
intermediate step.
[7] Second, modification of Leniear’s sentence would not,
as also required by § 3582(c)(2), be “consistent with applica-
ble policy statements issued by the Sentencing Commission.”
The Sentencing Commission has issued such a policy state-
ment in the form of U.S.S.G. § 1B1.10. A sentence reduction
is not consistent with U.S.S.G. § 1B1.10 if “[a]n amendment
. . . does not have the effect of lowering the defendant’s appli-
cable guideline range.”5 The application notes further elabo-
rate that “a reduction in the defendant’s term of imprisonment
. . . is not consistent with this policy statement if . . . an
amendment . . . is applicable to the defendant but the amend-
ment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of
another guideline.” U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis
added). This application note perfectly describes the situation
here—Amendment 706 applies to Leniear but does not have
the effect of lowering his applicable guideline range because
of the operation of U.S.S.G. § 3D1.4.
5
For the same reasons explained supra with respect to the term “sen-
tencing range” in 18 U.S.C. § 3582(c)(2), Leniear’s argument that the term
“applicable guideline range” in U.S.S.G. § 1B1.10 encompasses sentenc-
ing ranges corresponding to base offense levels must fail.
9694 UNITED STATES v. LENIEAR
Leniear argues, however, that such an application of
U.S.S.G. § 1B1.10 would mandate harsher treatment for a
subset of crack cocaine offenders in contravention of the
Supreme Court’s holding in United States v. Booker, 543 U.S.
220 (2005), that the Sentencing Guidelines are advisory only.
But any disparate application of Amendment 706 to crack
cocaine offenders is one imposed not by U.S.S.G. § 1B1.10,
but rather by a statute, namely 18 U.S.C. § 3582(c)(2). More-
over, while the Ninth Circuit has made clear that policy state-
ments that would require mandatory application of the
Sentencing Guidelines “must give way,” Hicks, 472 F.3d at
1173, that holding is inapposite here as it is a statute—again,
18 U.S.C. § 3582(c)(2)—and not a guideline that requires
consistency with the policy expressed by U.S.S.G. § 1B1.10.
IV
[8] We conclude that while Leniear did not waive his right
to the instant appeal, his appeal nonetheless fails. Because
Amendment 706 has not lowered the sentencing range appli-
cable to Leniear, and because reducing his prison term would
not be consistent with U.S.S.G. § 1B1.10, the district court
did not err in concluding that it lacked jurisdiction under 18
U.S.C. § 3582(c)(2) to modify Leniear’s sentence pursuant to
Amendment 706.
AFFIRMED.