FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U NITED S TATES O F A MERICA , Plaintiff

- Appellee

,

v.

M ANUEL G RIMALDO , 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 U NITED S TATES V

. G RIMALDO

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

- 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 po ssessing 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
t he 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, a nd 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 r ights. 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

.U NITED S TATES V

. G RIMALDO 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 U NITED S TATES V

. G RIMALDO

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

- posses sion 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 dist rict 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
pos session 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 Dep artment’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 eitherU NITED S TATES V

. G RIMALDO 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 interior s 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 intende d 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 si mple possession of methamphetamine under 21 U.S.C. § 844(a), a lesser included offense on Count 1.6 U NITED S TATES V

. G RIMALDO

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 recommende d 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, a nd 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 convicti on. 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 arres ts. 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 s entenced 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;U NITED S TATES V

. G RIMALDO 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 91 0, 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 up wards 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 pl ace, 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, wa iver 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” the8 U NITED S TATES V

. G RIMALDO

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 mountain s 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 i n 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 fail ure 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 maneuv ering. 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.U NITED S TATES V

. G RIMALDO 9

B. The district court plainly erred by applying the four

- level enhancement

.

For the fo ur

- 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 act ually 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 de fendant 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 o r10 U NITED S TATES V

. G RIMALDO

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 a t 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”); Uni ted 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 dr ug 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 app lied 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” whe n 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 Grim aldo used his firearm for such a purpose. We thus conclude that the government failed toU NITED S TATES V

. G RIMALDO 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 firear m 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 do es 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
pen alty 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 Grimal do 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 tri al. 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 U NITED S TATES V

. G RIMALDO

exceeding a statutory maximum constitutes plain error. See United States v. Guzman

- Bruno , 27 F.3d 420, 423 (9th Cir. 1994). Grimaldo was convict ed 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,

n arcotic, 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 prio r 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 sent ence 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 procee dings.” 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 prejudic e, 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 possessionU NITED S TATES V

. G RIMALDO 13

sentence exce eds 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, 3 56 (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, Gri maldo 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 because14 U NITED S TATES V

. G RIMALDO

“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 relev ant 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 a nd 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. R o driguez

- 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)).U NITED S TATES V

. G RIMALDO 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.