993 F.3d 1077
9th Cir.
2021
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Background

  • Officers stopped Manuel Grimaldo after surveillance at a motel; a pat‑down revealed ~107 grams of methamphetamine and an inoperable pistol with gummed residue. A motel-room search found a digital scale and drug paraphernalia.
  • Federal indictment charged Grimaldo with meth distribution (21 U.S.C. § 841), possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)), and being a felon in possession (18 U.S.C. § 922(g)(1)).
  • Grimaldo pleaded guilty to Count 3 (felon‑in‑possession), was acquitted on the § 924(c) count, and convicted at trial of simple possession (21 U.S.C. § 844(a)), a lesser included offense of Count 1.
  • The PSR applied a four‑level Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (weapon possessed in connection with another felony), producing an offense level and range the district court adopted; the court imposed 120 months on Count 3 and a concurrent 36 months on Count 1.
  • On appeal the Ninth Circuit reviewed for plain error (challenge not preserved), held the district court erred by applying the § 2K2.1(b)(6)(B) enhancement without factual findings that the gun facilitated or emboldened the drug possession, vacated the 120‑month sentence and remanded for reconsideration, vacated the 36‑month Count 1 sentence as exceeding the statutory maximum and remanded, and affirmed denial of Grimaldo’s motion to strike arrest allegations in the PSR.

Issues

Issue Grimaldo's Argument Government's Argument Held
Whether Grimaldo waived his challenge to the §2K2.1(b)(6)(B) enhancement He did not waive; agreement in court did not reflect knowledge of controlling law or tactical exploitation Grimaldo repeatedly agreed to the enhancement, so he waived appellate review No waiver — Court exercised discretion to reach the merits
Whether the §2K2.1(b)(6)(B) four‑level enhancement was properly applied (did the firearm facilitate or embolden the drug offense?) Enhancement improper without findings linking the gun to the meth possession; mere proximity or possession for personal defense/addiction paranoia is insufficient Possession of a firearm can embolden drug possession; substantial meth quantity and admission about guns around drugs support enhancement Plain error: enhancement vacated and remanded because the district court made no findings that the firearm facilitated or had potential to facilitate the drug offense
Whether the concurrent 36‑month sentence for simple possession exceeded the statutory maximum The sentence is illegal because the government filed an §851 information alleging only one prior, so the applicable maximum was lower than 36 months The concurrent nature of the sentence means Grimaldo’s substantial rights were not affected Court vacated the 36‑month sentence and remanded for resentencing (error plain; remedy exercised sua sponte)
Whether the district court abused its discretion by refusing to strike prior‑arrest allegations from the PSR Requested striking of non‑conviction arrest allegations PSR properly may include prior arrests; Rule 32 and §§ 3553(a)/3661 permit consideration of background No abuse of discretion; denial affirmed

Key Cases Cited

  • United States v. Routon, 25 F.3d 815 (9th Cir. 1994) (discusses when firearm possession supports enhancement where defendant kept weapon close and used it in connection with offense)
  • United States v. Polanco, 93 F.3d 555 (9th Cir. 1996) (requires proof of a connection between firearm possession and the underlying offense)
  • United States v. Noster, 590 F.3d 624 (9th Cir. 2009) (government bears burden to show firearm intended to be used in connection with a specifically contemplated felony)
  • United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019) (proximity of gun and drugs for personal use cannot alone support §2K2.1(b)(6)(B) without showing facilitation potential)
  • United States v. Blankenship, 552 F.3d 703 (8th Cir. 2009) (district court may apply adjustment for simple possession only after finding firearm facilitated the drug offense)
  • United States v. Watts, 519 U.S. 148 (1997) (per curiam) (acquitted conduct may be considered at sentencing under preponderance standard)
  • United States v. Olano, 507 U.S. 725 (1993) (standards for plain‑error review and distinction between waiver and forfeiture)
  • United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (waiver analysis requires showing defendant knew controlling law and exploited error tactically)
  • United States v. Jiminez, 258 F.3d 1120 (9th Cir. 2001) (confirming that mere PSR accuracy is not automatic waiver of appellate challenge)
  • United States v. Valenzuela, 495 F.3d 1127 (9th Cir. 2007) (plain‑error standard cited for unpreserved sentencing challenges)
  • United States v. Pelisamen, 641 F.3d 399 (9th Cir. 2011) (plain‑error reversal elements explained)
  • United States v. Guzman‑Bruno, 27 F.3d 420 (9th Cir. 1994) (imposition of sentence exceeding statutory maximum is plain error)
  • United States v. Fowler, 794 F.2d 1446 (9th Cir. 1986) (defines illegal sentence as exceeding statutory penalty)
  • United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992) (standard for review of district court’s refusal to modify PSR)
  • Bayless v. United States, 347 F.2d 354 (9th Cir. 1965) (court may vacate and remand the shorter of two improper sentences)
  • United States v. Goodbear, 676 F.3d 904 (9th Cir. 2012) (district court plainly erred by imposing sentence beyond statutory maximum)
  • United States v. Schrader, 846 F.3d 1247 (8th Cir. 2017) (Rule 32 does not compel exclusion of unconvicted arrest allegations from PSR)
  • United States v. Asante, 782 F.3d 639 (11th Cir. 2015) (district court has discretion to include unconvicted arrests in PSR)
  • United States v. Rodriguez‑Reyes, 925 F.3d 558 (1st Cir. 2019) (PSR listing of arrests that did not lead to convictions)
  • United States v. Warren, 737 F.3d 1278 (10th Cir. 2013) (PSR inclusion of prior criminal record required by Rule 32)
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