FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

8:16-cr-00164-

AG-1

OPINION

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-inpossession 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-inpossession 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. at 

732–37. 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.