Monday, January 11, 2021

US v. Grimaldo, No. 19-50151 (1-7-21)(Lee w/M. Smith & Cardone). Just because you have a gun (and are a prohibited possessor being a felon) and you have a quarter pound of meth for personal use doesn’t mean that having the firearm (nonoperable by the way) emboldens you to use drugs.  The 9th (Lee) vacates the GL adjustment for use of a firearm in furtherance of a felony, 2K2.1(b)(6)(B) and remands. The court has to explain why possessing the firearm makes it more likely you will use drugs so it is “in furtherance” of the possession.  The opinion (Lee) pushes back on the assumption that drugs and guns are always tied together. The panel acknowledges drug trafficking might be different. Here, there has to be a factual showing or argument that ties to trigger the adjustment. The 9th also vacates the 36 mo sentence for possession because the gov’t failed to file notice of prior drug convictions. Last, the 9th holds it was not an abuse of discretion for the PSR to record prior arrests without convictions.

The decision is here:


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