Today brings the first published criminal reversal of 2021. Full disclosure, I'm the appellate attorney on this case.
In United States v. Grimaldo, --- F.3d ---, No. 19-50151 (9th Cir. 2021), the Court vacated Mr. Grimaldo's 10-year sentence and remanded for resentencing.
"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)."
First, "the government contends that
Grimaldo’s repeated agreement to the enhancement
constitutes waiver, precluding him from challenging it."
The Court rejected this argument: "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."
"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."
On plain error review, the Court concluded the district court erred in applying the four-level enhancement for possession of a weapon in
connection with another felony under U.S.S.G.
§ 2K2.1(b)(6)(B).
"[I]t 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. 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 convinced by conjecture."
Next, the Court agreed the district court plainly erred in imposing a 36-month sentence for
simple possession running concurrent to his 120-month
sentence for possessing a firearm as a felon. This sentence exceeded the statutory maximum for simple possession. The Court "exercise[d] [its] discretion to
vacate the 36-month sentence under Count I, and remand the
matter to it for resentencing."
Finally, the Court held the district court did not abuse its discretion in declining to strike arrest allegations from the PSR
