United States v. Manuel Grimaldo ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50151
Plaintiff-Appellee,
D.C. No.
v. 8:16-cr-00164-
AG-1
MANUEL GRIMALDO, AKA Manuel
Cuevas, AKA Manuel Grinaldo
Cuevas, AKA Manuel Grimaldo, Jr., OPINION
AKA Manuel Cuevas Grimaldo,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, Senior District Judge, Presiding
Argued and Submitted October 6, 2020
Pasadena, California
Filed January 7, 2021
Before: Milan D. Smith, Jr. and Kenneth K. Lee, Circuit
Judges, and Kathleen Cardone, * District Judge.
Opinion by Judge Lee
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 UNITED STATES V. GRIMALDO
SUMMARY **
Criminal Law
The panel affirmed the district court’s refusal to strike
arrest allegations in a presentence report, vacated sentences
for simple possession of methamphetamine and felon-in-
possession of a firearm, and remanded for resentencing.
The panel held that the defendant did not waive his
challenge to the district court’s four-level upward
adjustment under U.S.S.G. § 2K2.1(b)(6)(B) for possession
of a weapon in connection with another felony. Explaining
that it is not self-evident that possessing a firearm emboldens
a person to seek more narcotics, the panel held that the
district court plainly erred by failing to determine whether
the defendant used the gun “in furtherance” of his
methamphetamine possession. The panel therefore vacated
the 120-month sentence on the felon-in-possession count
and remanded for further consideration.
The government conceded that the defendant’s 36-
month sentence on the simple-possession count is illegal
because it exceeds the applicable statutory maximum, and
the parties agreed that the error is plain. The government
asserted that because the illegal 36-month sentence ran
concurrent to the 120-month sentence on the felon-in-
possession count, the illegal sentence does not affect the
defendant’s substantial rights. Because the panel remanded
for resentencing on the felon-in-possession count, the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GRIMALDO 3
panel—without deciding whether the defendant carried his
burden of establishing that the illegal sentence affects his
substantial rights—also exercised its discretion to vacate the
36-month sentence for the simple-possession count, and
remanded the matter for resentencing.
Explaining that nothing in the plain text of Fed. R. Crim.
P. 32 requires excluding from a presentence report prior
arrests for which there was no conviction, the panel held that
the district court did not abuse its discretion in denying the
defendant’s motion to strike portions of his presentence
report.
COUNSEL
Devin Burstein (argued), Warren & Burstein, San Diego,
California, for Defendant-Appellant.
Daniel S. Lim (argued) and Bram M. Alden, Assistant
United States Attorneys; Brandon D. Fox, Assistant United
States Attorney, Chief, Criminal Division; Nicola T. Hanna,
United States Attorney; United States Attorney’s Office,
Santa Ana, California, for Plaintiff-Appellee.
4 UNITED STATES V. GRIMALDO
OPINION
LEE, Circuit Judge:
In this case, we recognize that possessing a firearm does
not necessarily embolden a defendant to commit a felony
and thus subject him to a sentencing enhancement.
Manuel Grimaldo, arrested with nearly a quarter pound
of methamphetamine and an inoperable pistol on his person,
was found guilty of simple possession of methamphetamine
and pled guilty for felon-in-possession of a firearm. The
district court sentenced him to 120 months after adopting a
four-level enhancement for possession of a weapon in
connection with another felony (i.e., simple possession). He
now appeals under 18 U.S.C. § 3742.
We hold that the district court erred in concluding that
Grimaldo’s pistol emboldened him to possess
methamphetamine. The district court made no findings that
Grimaldo’s firearm made his drug possession more likely.
We also vacate the concurrent 36-month sentence for the
possession count because the parties agree that the district
court erred in exceeding the maximum applicable sentence.
We remand these two issues to the district court for further
proceeding.
BACKGROUND
In June 2016, detectives with the Buena Park Police
Department’s Community Impact Team monitored the Days
Inn Motel, locally known as a vibrant hub for narcotics
transactions and prostitution. The officers witnessed two
men exit the motel and drive away in a Chevy Tahoe.
Officers discovered that the vehicle’s registration had
expired, and that the registered owner’s license was either
UNITED STATES V. GRIMALDO 5
suspended or revoked. They pursued and stopped the
vehicle, and questioned both the driver and the passenger,
Manuel Grimaldo. In response, Grimaldo revealed that he
possessed a loaded pistol. A subsequent pat-down revealed
a large plastic bag containing about 107 grams of
methamphetamine — nearly a quarter pound. A subsequent
search of Grimaldo’s room at the motel revealed a digital
scale as well as glass pipes, the interiors of which were
coated in a white substance.
One of the arresting officers tried to clear the gun’s
chamber, then-containing two bullets, in preparation for
transport. The gun’s slide, however, would not function. He
then took it to the police range for further examination, at
which point he discovered “an unknown residue throughout
the inside of the handgun that gummed everything up.” That
rendered the weapon virtually inoperable.
Several months later, federal prosecutors indicted
Grimaldo on three counts: Count 1 — possession with intent
to distribute methamphetamine under 21 U.S.C.
§ 841 (a)(1); Count 2 — possession of a firearm in
furtherance of a drug trafficking crime under 18 U.S.C.
§ 924(c); and Count 3 — felon in possession of a firearm
under 18 U.S.C. § 922(g)(1).
In November 2018, Grimaldo entered a guilty plea to
Count 3 (felon-in-possession) and proceeded to trial on
Counts 1 and 2. Grimaldo argued that he never intended to
sell any of his drugs. To the contrary, he claimed that his
quarter pound of meth was for personal consumption.
Although the jury acquitted Grimaldo on Count 2
(possession of a firearm in furtherance of a trafficking
offense), it convicted him of simple possession of
methamphetamine under 21 U.S.C. § 844(a), a lesser
included offense on Count 1.
6 UNITED STATES V. GRIMALDO
The February 2019 Presentence Report (PSR) produced
a total offense level of 26 and a Sentencing Guidelines range
of 120–150 months. The PSR also recommended a 36-
month term for Count 1. But under 21 U.S.C. § 844(a),
simple possession is limited to a statutory maximum
sentence of 12-months. One “prior conviction for any drug,
narcotic, or chemical offense” will increase the statutory
maximum to 24-months, and a second will increase it to 36-
months. Id. For the statutory increases to apply, the
government must file an information alleging the prior
convictions under 21 U.S.C. § 851. The government’s
information, however, alleged only one predicate
conviction. Grimaldo also objected to Paragraphs 57–61 of
the PSR, which documented prior arrests that did not lead to
convictions.
At sentencing, the district court denied Grimaldo’s
request to strike from the PSR the paragraphs detailing some
of his prior arrests. The court also adopted the Guidelines
range in the PSR, including a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for possession of a weapon in
connection with another felony. The court sentenced
Grimaldo to 120 months on Count 3. It also sentenced him
to 36 months on Count 1, running concurrently with his other
sentence.
Grimaldo timely appealed. We have jurisdiction under
28 U.S.C. § 1291.
STANDARD OF REVIEW
Because Grimaldo did not preserve his sentencing
challenges at the district court, we review for plain error.
United States v. Valenzuela, 495 F.3d 1127, 1130 (9th Cir.
2007). Reversal “is warranted only where there has been
(1) error; (2) that is plain; (3) that affects substantial rights;
UNITED STATES V. GRIMALDO 7
and (4) where the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir.
2011) (citing United States v. Olano, 507 U.S. 725, 732–37
(1993)). Even so, reversal remains discretionary. See
United States v. Cotton, 535 U.S. 625, 631 (2002).
We review for abuse of discretion a district court’s
decision to deny a request to modify a presentence report.
See United States v. Hardesty, 958 F.2d 910, 915 (9th Cir.
1992).
ANALYSIS
I. The district court plainly erred by failing to
determine whether Grimaldo used the gun “in
furtherance” of his methamphetamine possession.
At sentencing, the district court adjusted Grimaldo’s
Guideline range four levels upwards under U.S.S.G.
§ 2K2.1(b)(6)(B). Grimaldo claims that this constitutes
plain error. We agree, and vacate and remand to the district
court for further consideration.
A. Grimaldo did not waive his challenge to the
Guidelines calculation.
In the first place, the government contends that
Grimaldo’s repeated agreement to the enhancement
constitutes waiver, precluding him from challenging it.
“Waiver is different from forfeiture. Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is
the ‘intentional relinquishment or abandonment of a known
right.’” United States v. Olano, 507 U.S. 725, 733 (1993)
(citations omitted). The government maintains that
Grimaldo “made a strategic decision not to contest” the
8 UNITED STATES V. GRIMALDO
enhancement, “agreed to that enhancement in his sentencing
brief,” and “reiterated his agreement [to its inclusion] six
times.” But Grimaldo responds that any “strategic” or
“tactical” decision would have been “nonsensical.” We
agree. The government attempts to raise mountains from
molehills, but nothing in the record erects an insurmountable
barrier to appellate review.
In determining whether waiver occurred, we look to the
defendant’s knowledge of the error and whether he or she
sought to exploit it for a tactical advantage. See United
States v. Perez, 116 F.3d 840, 844–45 (9th Cir. 1997) (en
banc) (holding that a defendant did not waive his right to
appeal an erroneous jury instruction, despite counsel’s
affirmative agreement to it at trial, because there was no
“evidence in the record that the defendant . . . considered the
controlling law . . . and, in spite of being aware of the
applicable law, proposed or accepted a flawed instruction”);
United States v. Jiminez, 258 F.3d 1120, 1124 (9th Cir.
2001) (recognizing that failure to object to a district court’s
finding of a prior aggravated felony, but confirming the
accuracy of a PSR, “is not sufficient to wa[i]ve the right to
appeal,” and that there must be evidence that the defendant
was either aware of controlling law, or otherwise sought to
use it for tactical gain).
Grimaldo agreed that application of the four-level
enhancement was legitimate; indeed, he agreed many times.
But the record, reasonably read, reflects no knowledge of
contrary law — let alone strategic maneuvering. And it
supports no conclusion that Grimaldo, or his counsel, made
these decisions for tactical advantage. We thus exercise our
discretion to proceed to the merits.
UNITED STATES V. GRIMALDO 9
B. The district court plainly erred by applying the
four-level enhancement.
For the four-level enhancement to apply, the government
“must show that the firearm was possessed in a manner that
permits an inference that it facilitated or potentially
facilitated — i.e, had some potential emboldening role in —
a defendant’s felonious conduct.” United States v. Routon,
25 F.3d 815, 819 (9th Cir. 1994). The government argues
that Grimaldo’s possession of a firearm emboldened his
possession of narcotics. This position is not frivolous. See
United States v. Bishop, 940 F.3d 1242, 1253 (11th Cir.
2019) (opining that “under some circumstances a small
quantity of drugs may be more valuable to an addict whose
actions are motivated by desperation than a larger quantity
may be to someone who is in the business of trafficking
drugs . . . [this] could actually weigh in favor of . . . a finding
that the defendant’s firearm has the potential to facilitate his
drug possession”). Grimaldo admitted to keeping guns
around to help ameliorate his drug-induced paranoia.
But it is not self-evident that possessing a firearm
emboldens a person to seek more narcotics. As Grimaldo
assures us, for emboldening drug possession, addiction alone
may suffice. The district court needed to make factual
findings connecting Grimaldo’s possession of a firearm with
his likelihood of owning illegal narcotics. See United States
v. Polanco, 93 F.3d 555, 565–66 (9th Cir. 1996) (requiring
“proof of a ‘connection’ between the use or possession of the
firearm and the underlying offense”). It never did that.
Absent such a finding, a defendant found with a firearm
could face this four-level enhancement for virtually any
felony because a firearm theoretically may embolden him or
her to commit a crime. But in imposing enhancements under
the Guidelines, we cannot be swayed by speculation or
10 UNITED STATES V. GRIMALDO
convinced by conjecture. See United States v. Noster, 590
F.3d 624, 635 (9th Cir. 2009) (explaining that “[t]he
government bears the burden of producing sufficient
evidence that the defendant intended to use or possessed the
firearm in connection with a specifically contemplated
felony”); Bishop, 940 F.3d at 1252 (holding “that mere
proximity between a firearm and drugs possessed for
personal use cannot support the § 2K2.1(b)(6)(B)
enhancement without a finding that the gun facilitated or had
the potential to facilitate the defendant’s drug possession”);
United States v. Blankenship, 552 F.3d 703, 705 (8th Cir.
2009) (explaining that “[i]f the underlying drug offense is
for simple possession, the district court may still apply the
adjustment, but only after making a finding that the firearm
facilitated the drug offense”) (emphasis added).
The government relies on our decision in United States
v. Routon, but that case is distinguishable. 25 F.3d 815, 819
(9th Cir. 1994). In that case, we reviewed for clear error
whether the four-level enhancement properly applied to an
interstate car thief found in possession of a gun. We held
that the enhancement was proper for two reasons: the
defendant (1) brought the gun with him “whenever he rode
in the [stolen] car,” and (2) “he also kept it within a short
distance” when driving. Id. Stealing a car invites the risk
that the owner, let alone the police, will seek to repossess it.
While a gun does not mitigate the risk — in fact, it may
heighten it — it helps remove barriers. But the district court
never found that Grimaldo used his firearm for such a
purpose. We thus conclude that the government failed to
UNITED STATES V. GRIMALDO 11
prove that possessing a gun emboldened Grimaldo’s
possession of narcotics. 1
We vacate the 120-month sentence and remand for
further consideration.
II. We exercise our discretion and remand for
resentencing on Count 1 because the district court
imposed an illegal sentence.
Grimaldo also challenges the 36-month sentence for
simple possession running concurrent to his 120-month
sentence for possessing a firearm as a felon. The
government concedes that Grimaldo’s 36-month sentence is
illegal because it exceeds the applicable statutory maximum.
But it counters that because the illegal sentence ran
concurrent to Grimaldo’s longer, valid 120-month sentence,
it does not affect his substantial rights. The district court
plainly erred.
Grimaldo and the government agree that his sentence
constitutes error, and that the error is plain. We concur. An
illegal sentence is one “in excess of the permissible statutory
penalty for the crime.” United States v. Fowler, 794 F.2d
1446, 1449 (9th Cir. 1986). Imposition of a sentence
1
The government argues that the district court could have
considered acquitted conduct in sentencing under a preponderance of the
evidence standard. United States v. Watts, 519 U.S. 148, 149, 157 (1997)
(per curiam). Although the jury acquitted Grimaldo of drug trafficking,
the record contains suggestive evidence, as he was found with a
substantial amount of meth and $2,500 in cash, along with a digital scale
stashed in his motel room. The district court, however, excluded much
of that evidence at trial. Such evidence may well suffice to establish that
Grimaldo was engaging in methamphetamine trafficking. But the
district court never made any consistent findings, and we will not decide
this issue on appeal.
12 UNITED STATES V. GRIMALDO
exceeding a statutory maximum constitutes plain error. See
United States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir.
1994). Grimaldo was convicted of simple possession of
methamphetamine under 21 U.S.C. § 844(a). The statute
authorizes a sentence for possession of methamphetamine
for a term of “not more than 1 year,” increasing to two years
if a defendant has one “prior conviction for any drug,
narcotic, or chemical offense,” and again to three years if he
or she has two or more applicable priors. 21 U.S.C. § 844(a).
To authorize an increase in the maximum penalty,
21 U.S.C. § 851 requires the government to file an
information alleging these prior convictions for any “offense
under this part.” 21 U.S.C. § 851(a)(1). This, in turn,
governs increases under 21 U.S.C. § 844(a). Yet the
government filed an information alleging only a single prior
conviction. Even still, the parties dispute whether Grimaldo
faced a 12-or-24-month maximum sentence. Either way, the
sentence imposed exceeded the relevant statutory maximum.
See United States v. Goodbear, 676 F.3d 904, 912 (9th Cir.
2012) (holding that the district court plainly erred by
imposing a sentence in excess of the statutory maximum).
Still, to prevail under plain error review, Grimaldo must
establish that the illegal sentence affects his “substantial
rights” and “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” See Olano, 507 U.S. at732–37. Grimaldo implores us to declare that any illegal
sentence violates a defendant’s due process rights, therefore
degrading the entire judicial process. He further contends
that he faces a substantial risk of prejudice, should he
recidivate, because Congress could, in the future, change the
Guidelines to treat his concurrent sentences as separate ones
when calculating Criminal History Points. Yet, the
government argues that, because Grimaldo’s possession
UNITED STATES V. GRIMALDO 13
sentence exceeds the concurrent illegal sentence, his liberty,
and any other substantial rights, are unaffected. Likewise, it
reminds us that Grimaldo’s prejudice argument rests on
speculative and attenuated grounds.
We need not decide whether Grimaldo has carried his
burden. Because we remand this case for resentencing on
the Guidelines calculation, we also exercise our discretion to
vacate the 36-month sentence under Count I, and remand the
matter to it for resentencing. See Bayless v. United States
347 F.2d 354, 356 (9th Cir. 1965) (vacating and remanding
for reconsideration, sua sponte, the shorter of two improper
sentences).
III. The district court acted appropriately in denying
Grimaldo’s motion to strike portions of the
Presentence Investigation Report.
Finally, Grimaldo argues that the district court erred by
not striking certain arrest allegations in the PSR. We review
for abuse of discretion a district court’s decision to deny a
request to modify a presentence report. See Hardesty, 958
F.2d at 915. Finding none, we affirm.
Congress writes the law, and we apply it. Under Federal
Rule of Criminal Procedure 32(d)(2)(A)(i), a “presentence
report must also contain . . . the defendant’s history and
characteristics, including: (i) any prior criminal record.” On
the other hand, the catch-all provision in Rule 32(d)(3)(C)
requires the PSR’s exclusion of “any information that, if
disclosed, might result in physical or other harm to the
defendant or others.” Nothing in the plain text of the rule
requires exclusion of prior arrests for which there was no
conviction. See United States v. Schrader, 846 F.3d 1247,
1248 (8th Cir. 2017) (per curiam) (affirming the district
court’s refusal to strike sexual assault allegations because
14 UNITED STATES V. GRIMALDO
“Rule 32 does not compel [their] exclusion”); United States
v. Asante, 782 F.3d 639, 649 (11th Cir. 2015) (holding that
“even if the rules do not require the PSR to contain the
information [in the relevant section] the district court had
discretion to include it” because it did not fit into any of the
“three narrow categories of information” properly excluded
from it).
Indeed, 18 § U.S.C. 3553(a)(1) mandates that courts
“shall consider . . . the nature and circumstances of the
offense and the history and characteristics of the defendant.”
Simultaneously, 18 U.S.C. § 3661 prohibits any “limitation
. . . placed on the information concerning the background,
character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider
for the purpose of imposing an additional sentence.” We
need not opine on whether Rule 32(d)(1)(A)(i) requires the
inclusion of past arrests for which there was no conviction.2
Instead, we hold that a district court does not abuse its
discretion by refusing to strike past arrests that did not result
in convictions.
CONCLUSION
We AFFIRM the district court’s refusal to strike arrest
allegations in the PSR. We VACATE the 36-month and
2
We note, however, that other courts have. See, e.g., United States
v. Rodriguez-Reyes, 925 F.3d 558, 561 (1st Cir. 2019) (noting that the
“PSR also listed, as required six arrests which did not lead to
convictions”) (emphasis added); United States v. Warren, 737 F.3d 1278,
1281 n.4 (10th Cir. 2013) (explaining that PSRs “must include ‘any prior
criminal record’ of a defendant”) (citing Fed. R. Crim. P. 32(d)(2)(A)(i)).
UNITED STATES V. GRIMALDO 15
120-month sentences for Counts 1 and 3, respectively, and
REMAND for further consideration. 3
3
We also DENY Grimaldo’s pending motion to strike the
government’s Rule 28(j) letter.