APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, U.S. District Judge.
Robert Herrick for appellant.
John A. Matthews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.
Before Thompson, Selya, and Lipez, Circuit Judges.
THOMPSON, Circuit Judge.
This is defendant-appellant John Correy's third visit to this court, but his first solo appearance. See United States v. Correy, 570 F.3d 373 (1st Cir. 2009); United States v. Casas, 425 F.3d 23 (1st Cir. 2005). He asks us to reconsider his sentence a third time because the sentencing judge failed to follow this court's instructions on remand. We agree, so we vacate his sentence and remand for proceedings consistent with this opinion.
We set forth succinctly the facts and procedural history relevant to this appeal. Readers seeking greater detail may wish to consult our prior opinions. See
Correy, 570 F.3d at 375-77; Casas, 425 F.3d at 29.
On March 21, 1994, Drug Enforcement Administration agents stopped a vehicle containing 81 kilograms of cocaine at the San Juan airport. An investigation followed, exposing the vast drug conspiracy involved in this case.
On August 8, 1996, the government charged 60 defendants, including Correy, with conspiracy to distribute 1400 grams of heroin and 9445 kilograms of cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 846 (Count 1). The government further charged Correy and several co-defendants with possession of 36 kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 4). Correy and one co-defendant were also charged with the intentional killing of two people, in violation of 21 U.S.C. § 848(e)(1) and 18 U.S.C. § 2 (Counts 5 and 6).
On December 14, 1999, following a seven-month jury trial before U.S. District Judge Carmen Consuelo Vargas de Cerezo, Correy and his co-defendants were convicted of Count 1, conspiracy to distribute heroin and cocaine. Correy was acquitted of Counts 4, 5, and 6. At trial, Thomas Martí nez and Israel Pérez-Delgado, two leading figures in the conspiracy who pleaded guilty and received lighter sentences, testified against Correy and his co-defendants. Much of Correy's and his co-defendants' appeals has hinged on the credibility and weight afforded these witnesses' testimony.
A. First Sentencing and Appeal
Due to a backlog in the trial court's docket, the case was reassigned to U.S. District Judge Héctor Laffitte for sentencing. Judge Laffitte made individual drug-quantity determinations at sentencing based on his review of the record, relying heavily on leader Martínez's testimony. On May 9, 2002, he found Correy responsible for over 150 kilograms of cocaine, resulting in a base offense level of 38. He added a two-level enhancement for possession of a weapon, raising Correy's total offense level to 40. Correy's past offenses placed him in criminal history category VI. Out of a U.S. Sentencing Guidelines (" ...