June 18, 2009; see amended opinion filed July 27, 2009
Appeal from the United States District Court for the District of Alaska James K. Singleton, Senior District Judge, Presiding. D.C. No. 3:04-CR-00047-JKS-1.
The opinion of the court was delivered by: Tallman, Circuit Judge
Argued and Submitted March 12, 2009 -- Seattle, Washington
Before: William A. Fletcher, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
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 "Sentencing 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 and 18 U.S.C. § 3742. Because Leniear is not eligible for a reduction of his prison sentence under Amendment 706, we affirm.
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 violation 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 effective as of November 5, 2003. Where counts in a multi-count conviction involve substantially the same harm, the Sentencing Guidelines require that they be grouped for calculation of the offense level. U.S.S.G. § 3D1.2. Otherwise, U.S.S.G. § 3D1.4 "requires the imposition of a discounted enhancement 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 separately.
With respect to Count One, the probation officer determined that the drugs seized from Leniear were equivalent to 41.05 kilograms of marijuana,*fn1 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,*fn2 but deducted three points for acceptance of responsibility. Applying a total offense level of 19 and a criminal history category of I, the PSR recommended 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 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 sentence 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 resentencing 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.
 The government contends that the instant appeal is barred by the waiver contained in its ...