United States v. Grimaldo

993 F.3d 1077

UNITED STATES of America, Plaintiff-Appellee, v. Manuel GRIMALDO, aka Manuel Cuevas, aka Manuel Grinaldo Cuevas, aka Manuel Grimaldo, Jr., aka Manuel Cuevas Grimaldo, Defendant-Appellant.

No. 19-50151

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2020 Pasadena, California

Filed January 7, 2021

Amended April 12, 2021

ORDER

Appellee's petition for rehearing (Dkt. No. 50) is GRANTED . The Opinion filed on January 7, 2021, is amended as follows:

On slip opinion page 7, lines 12–14, modify: < The district court plainly erred by failing to determine whether Grimaldo used the gun "in furtherance" of his methamphetamine possession,> to: < The district court plainly erred by failing to determine whether Grimaldo used or possessed the gun "in connection with" another felony offense.>

On slip opinion page 9, lines 20–21, modify: < But it is not self-evident that possessing a firearm emboldens a person to seek more narcotics,> to: < But it is not self-evident that possessing a firearm emboldens a person to possess narcotics for personal use.>

The Clerk shall file the amended opinion submitted with this Order. No further petitions for rehearing or rehearing en banc may be filed.

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 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.

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; 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). Even so, reversal remains discretionary. See United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (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 or possessed the gun "in connection with" another felony offense.

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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations omitted). The government maintains that Grimaldo "made a strategic decision not to contest" the 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. Jimenez , 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.

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 ,...