United States v. Grimaldo, No. 19-50151 (9th Cir. 2021)
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Defendant was arrested with nearly a quarter pound of methamphetamine and an inoperable pistol on his person. He was found guilty of simple possession of methamphetamine and pleaded guilty for being a felon-in-possession of a firearm. The district court sentenced defendant to 120-months in prison after applying a four-level sentencing enhancement for possession of a weapon in connection with another felony (simple possession) under USSG 2K2.1(b)(6)(B).
After determining that defendant did not waive the issue, the Ninth Circuit held that the district court erred in concluding that defendant's pistol emboldened him to possess methamphetamine where the district court made no findings that defendant's firearm made his drug possession more likely. The panel vacated the 120-month sentence on the felon-in-possession count and remanded for further consideration. The panel also vacated the concurrent 36-month sentence for the possession count because the parties agree that the district court erred in exceeding the maximum applicable sentence. The panel remanded for further proceedings. Finally, the panel explained 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. Therefore, the panel concluded that the district court did not abuse its discretion in denying defendant's motion to strike portions of his presentence report.
Court Description: 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 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.
The court issued a subsequent related opinion or order on April 12, 2021.
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