Sunday, January 10, 2021

Case o' The Week: The Crimes of Grimaldo - Grimaldo and USSG Section 2K2.1 Enhancements

 “[I]n imposing enhancements under the Guidelines, we cannot be swayed by speculation or convinced by conjecture.” 

United States v. Grimaldo, 2021 WL 57147, *4 (9th Cir. Jan. 7, 2021), decision available here.

 Players: Decision by Judge Lee, joined by Judge Smith and WD Texas District Judge Kathleen Cardone (the Chair of the “Cardone Commission,” on the independence of the defense function in the federal criminal justice system.)  

 Facts: Grimaldo was a passenger in a car that was driving away from a motel. The model was a “vibrant hub for narcotics transactions and prostitution.” Id. at *2. A search of Grimaldo revealed 107 grams of meth (nearly a quarter pound), and a loaded pistol that did not really work. Id. A later search of Grimaldo’s motel room produced a digital scale and glass pipes. Id.

Grimaldo was charged with possession of meth for distribution, a Section 924(c) charge, and a Section 922(g)(1) count. Id. He pleaded guilty to the felon-in-possession charge and went to trial on the other counts.

 The jury convicted Grimaldo of straight possession (a lesser included), and acquitted him on the possession-in-furtherance-of-a-drug-trafficking offense. Id. at *2.

  At sentencing, the district court imposed a four offense-level increase for the possession of a weapon in connection with another felony, under USSG § 2K2.1(b)(6)(B). Id. The defense did not object to this enhancement.

 Issue(s): “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.” Id. at *3.

 Held: “We agree, and vacate and remand to the district court for further consideration.” Id.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.” Id. at *1. 

 “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.” Id. at *2.

Of Note: In another oddity in this case, the district court imposed a three-year sentence on the possession charge, despite the fact that the single prior alleged did not authorize a stat max that high. Id. at *4.

On appeal, Grimaldo argued that this was per se plain error, because it was a (plainly) illegal sentence. Id. The government objected, because this possession sentence ran fully concurrent with the ten-year § 922(g) sentence. Id.

The Ninth neatly sidesteps the constitutional question, and “exercises its discretion” to simply vacate the three-year sentence. Id. at *5. The core due process issue, therefore, survives as a fight for another day.

How to Use: “Waiver, waiver!” grumbles the government, noting that the defense agreed to this guideline enhancement six times while in the district court. Id. at *3.

“Meh,” replies the Ninth.

  As Judge Lee explains, “The government attempts to raise mountains from molehills, but nothing in the record erects an insurmountable barrier to appellate review.” Id. Grimaldo is an intellectually-honest opinion that wants to get sentencing right: turn to its flat rejection of waiver when fending off the technicality-gambits of the government on appeal.                                           

For Further Reading: A lifetime ago (or rather, three years ago), before a worldwide plague and incitements of insurrection and mobs inside the U.S. Capitol, we talked about things like the independence of the defense function. 

To that end, District Judge Cardone (on the Grimaldo panel), lead her committee over several years of fact-finding, culminating in a remarkable and historic report.

The Honorable District Judge Kathleen Cardone

The Cardone Commission Report recommended deep, systemic, and meaningful structural changes to the defense function in the federal system. See CJA Study Webpage here

So what came of that remarkable effort?

The Administrative Office and the Judicial Conference of the U.S. Courts decided to deal with the Cardone’s Committee’s concrete recommendations for action by – well, by spending several more years studying the study. See the FJC webpage here

Maybe the 117th Congress, and a new White House, will be willing to move the question of defense independence out of the A.O.’s interminable studies, and into meaningful legislation action on the Criminal Justice Act?



Image of “The Crimes of Grindelwald” from

 Image of the Honorable Judge Kathleen Cardone from



Steven Kalar, Federal Public Defender N.D. Cal. Website at




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