United States v. Correy

United States Court of Appeals
For the First Circuit

No. 12-1542

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN CORREY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before
Thompson, Selya, and Lipez,
Circuit Judges.

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.

December 3, 2014
 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.

I. BACKGROUND

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

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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 Martínez 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

("Guidelines") range of 360 months to life, Judge Laffitte

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sentenced Correy to 480 months of imprisonment, followed by seven

years of supervised release.

Correy and his co-defendants appealed on several grounds.

On October 7, 2005, this court affirmed their convictions, as well

as the statutory maximums to which they were subjected, but

remanded their cases for resentencing. Casas, 425 F.3d at 67. We

based our remand of Correy's sentence on the probation department's

failure to timely serve him with a revised presentence report

making specific drug-quantity findings grounded in the record, in

violation of Federal Rule of Criminal Procedure 32(e),1 which

Correy had challenged as part of a Booker claim.2 Casas, 425 F.3d

at 57 n.43, 61, 64-65. On remand, we "instructed the resentencing

[judge] to review the entire record, making [his] own credibility

determinations in order to determine drug quantity." Correy, 570

F.3d at 376 (citing Casas, 425 F.3d at 64 n.56). We flagged

particular concerns about witness Martínez's credibility and the

sentencing judge's flawed interpretation of the jury verdict as

crediting his testimony wholesale, when in fact the jury had made

certain findings inconsistent with that testimony. Casas, 425 F.3d

1
Rule 32(e) provides that "[t]he probation officer must give
the presentence report to the defendant, the defendant's attorney,
and an attorney for the government at least 35 days before
sentencing unless the defendant waives this minimum period." Fed.
R. Crim. P. 32(e)(2).
2
United States v. Booker, 543 U.S. 220, 245 (2005), held that
the Guidelines must be treated as advisory, rather than mandatory.

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at 64 n.56. We further noted that the trial judge had labeled

witness Pérez's testimony "dubious," id. at 53-54, and that Pérez's

account conflicted with that of Martínez, id. at 45. Accordingly,

it should have been clear on remand that the sentencing judge had

to examine both Martínez's and Pérez's credibility. See Correy,

570 F.3d at 379.

B. Second Sentencing and Appeal

At a resentencing hearing on June 9, 2006, Judge Laffitte

found Correy responsible for at least 908 kilograms of cocaine,

again resulting in a base offense level of 38. Judge Laffitte

again added a two-level enhancement for possession of a weapon, for

a total offense level of 40, and placed Correy in criminal history

category VI. He then re-imposed Correy's 480-month sentence and

seven-year supervised release term.

On June 18, 2009, this court again vacated Correy's and

his co-defendants' sentences. Id. at 374. We found that, as to

all defendants, the sentencing judge "did not heed our instruction"

to thoroughly review the record in order to evaluate witnesses'

credibility and make individualized drug-quantity determinations,

"but rather persisted in [his] view that the jury verdict was

controlling" and "categorically refuse[d] to engage in a

credibility assessment." Id. at 379-81. Further, as to Correy,

the sentencing judge relied on a clearly deficient presentence

report which, "[i]ncredibly," was "the exact same [report]" as was

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used at his prior sentencing, and which "simply included

allegations copied from the indictment" rather than providing the

individualized, record-based assessment that this court demanded.

Id. at 382-83. On remand, we "insist[ed]" that the sentencing

judge resolve these issues. Id. at 402.

C. Third Sentencing

On July 6, 2011, the probation department filed an

amended presentence report in preparation for resentencing. After

summarizing trial testimony related to Correy's conduct, the report

assigned Correy responsibility for over 150 kilograms of cocaine

and recommended offense levels consistent with Correy's previous

sentences. Correy objected, challenging the credibility of the

testimony the probation department relied on. He further claimed

that the government was unable to prove he was responsible for more

than five kilograms of cocaine, though he conceded that his conduct

involved 3.5 to 5 kilograms of cocaine.

On October 24, 2011, following Judge Laffitte's

retirement, U.S. District Judge Gustavo A. Gelpí presided over

Correy's third sentencing. Relying on the amended presentence

report, and interpreting this court's remand order as preventing

him from making a finding below five kilograms of cocaine, Judge

Gelpí found Correy responsible for between five and fifteen

kilograms of cocaine, resulting in a base offense level of 32. He

declined to grant Correy a two-level reduction for acceptance of

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responsibility and added enhancements for Correy's possession of a

weapon and career offender status, raising Correy's total offense

level to 37 and placing him in criminal history category VI. Out

of a Guidelines range of 360 months to life, Judge Gelpí sentenced

Correy to an incarcerative term of 360 months followed by seven

years of supervised release.

On October 31, 2011, Correy filed a motion under Federal

Rule of Criminal Procedure 35(a) to correct his sentence, arguing

that Judge Gelpí erred by failing to consider prosecutorial

misconduct during his trial as justification for a downward

departure in his sentence.3 Judge Gelpí denied the motion on the

grounds that (1) Correy had waived the issue by not raising it at

the October 24 sentencing hearing, and (2) the district court

lacked jurisdiction to revisit the sentence pursuant to Rule 35(a).

This appeal followed.

II. ANALYSIS

Before us, Correy challenges his sentence on four

grounds: First, he says that Judge Gelpí failed to follow this

court's instruction to make individualized, record-based drug-

quantity findings on remand. Second, he claims that Judge Gelpí

erroneously refused to consider his request for an acceptance-of-

3
Rule 35(a) permits a district judge to correct a sentence
within fourteen days after sentencing if it "resulted from
arithmetical, technical, or other clear error." Fed. R. Crim. P.
35(a).

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responsibility sentence reduction. Third, he contends that his

sentence was procedurally flawed and substantively unreasonable.

Fourth, he says that Judge Gelpí wrongly denied his Rule 35(a)

motion for correction of sentence. But because we remand based on

Correy's first challenge, we need not address the remainder.

A. Individualized Drug-Quantity Determination

Correy first contends that Judge Gelpí refused to follow

this court's order to make an individualized drug-quantity finding

by reviewing the record and assessing witness credibility upon

remand. Correy says Judge Gelpí mistakenly concluded that he

lacked authority to find Correy personally responsible for under

five kilograms of cocaine based on this court's determination that

the conspiracy-wide amount was five kilograms or more. As a

result, Correy says, Judge Gelpí improperly declined to consider

his claim that he was individually responsible for only 3.5 to 5

kilograms of cocaine.

Sentences in drug-conspiracy cases depend heavily on the

amount and type of drugs involved. United States v. Cintrón-

Echautegui, 604 F.3d 1, 5 (1st Cir. 2010) (citing United States v.

Sepulveda, 15 F.3d 1161, 1196-97 (1st Cir. 1993)). When sentencing

a drug-conspiracy participant under the Guidelines, the sentencing

judge "must make an individualized finding concerning the quantity

of drugs attributable to, or reasonably foreseeable by, the

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offender."4 Id. (citing United States v. Colón-Solís, 354 F.3d

101, 103 (1st Cir. 2004)); see also United States v. Ramírez-

Negrón, 751 F.3d 42, 47-48 (1st Cir.), cert. denied, 135 S.Ct. 276

(2014). This is so even though "we derive the applicable statutory

maximum in a drug conspiracy case from a conspiracy-wide

perspective."5 Colón-Solís, 354 F.3d at 103 (emphasis added); see

also Ramírez-Negrón, 751 F.3d at 49 n.4. Absent "an

individualized finding, the drug quantity attributable to the

conspiracy as a whole cannot automatically be shifted to the

defendant" for the purpose of calculating a Guidelines offense

level. Colón-Solís, 354 F.3d at 103.

4
"[F]actual findings made for purposes of applying the
Guidelines, which influence the sentencing judge's discretion in
imposing an advisory Guidelines sentence and do not result in
imposition of a mandatory minimum sentence, do not violate the rule
in Alleyne [v. United States, 133 S.Ct. 2151 (2013)]." United
States v. Ramírez-Negrón, 751 F.3d 42, 48 (1st Cir.), cert.
denied, 135 S.Ct. 276 (2014). In Alleyne, which was decided
during the pendency of Correy's appeal, the Supreme Court held that
any fact that increases the applicable mandatory minimum must be
found by the jury beyond a reasonable doubt. 133 S.Ct. at 2162-63.
5
The applicable mandatory minimum, on the other hand, depends
on the drug quantity attributable to the individual defendant.
Ramírez-Negrón, 751 F.3d at 49 n.4 (citing Colón-Solís, 354 F.3d at
103). Unlike his co-defendant, see United States v. Pizarro, ___
F.3d ___, No. 12-1759, 2014 WL 6090601 (1st Cir. Nov. 14, 2014),
Correy does not raise any Alleyne issues in this appeal, and we
therefore address Correy's sentencing claims without regard to any
possible effect of the Supreme Court's decision on his statutory
sentencing range. On remand, the district court should consider
the applicability of our Alleyne jurisprudence, including our
decision in Pizarro, to Correy's circumstances.

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 In Correy and his co-defendants' first appeal, we found

that "the evidence overwhelmingly establishe[d] that the conspiracy

involved at least five kilograms of cocaine," corresponding to a

statutory maximum of life imprisonment. Casas, 425 F.3d at 65-66;

see 21 U.S.C. § 841(b)(1)(A). In their second appeal, we clarified

that this discussion pertained only to the conspiracy-wide amount

and indicated "nothing about the drug quantities foreseeable to

each individual, which must be used for purposes of determining

each defendant's [base offense level] under the [G]uidelines."

Correy, 570 F.3d at 377, 380. We proceeded to explain that the

individualized "drug-quantity determination is an entirely

different inquiry from that of the conspiracy-wide determination"

and to reiterate that "the individualized drug-quantity issue

[cannot] be resolved without assessing credibility." Id. at

380-81.

Nevertheless, at Correy's third sentencing, Judge Gelpí

insisted that this court had partly tied his hands with respect to

Correy's drug-quantity determination. When Correy argued that he

was responsible for under five kilograms of cocaine, Judge Gelpí

said:

[I]n this particular case . . . the [c]ourt
cannot go below the ten-year mandatory minimum
as the Circuit noted. . . . [T]his particular
defendant, as well as the others[,] are
responsible for at least 5 kilos or more,
which triggers the ten-year mandatory minimum.
So I can't make a finding - and I'll hear from

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 counsel, but I don't see how I can make a
finding below the mandatory minimum.

In other words, Judge Gelpí thought (incorrectly under our case

law, see supra note 5) that the conspiracy-wide amount of at least

five kilograms represented the minimum amount attributable to

Correy. He further concluded that, because a drug-quantity finding

of anything between five and fifteen kilograms of cocaine would

result in the same Guidelines range based on Correy's previous

offenses, it would be a "somewhat moot exercise" to make

credibility determinations and to state a more specific — and, he

implied, likely higher — finding.

When Judge Gelpí concluded that he could not find Correy

responsible for less than five kilograms of cocaine, he

misinterpreted our remand order in two important ways. First, when

we said that Correy and his co-defendants were responsible for at

least five kilograms of cocaine, we were discussing the conspiracy-

wide, statutory-maximum-controlling amount, rather than the

individualized, Guidelines-range-determining amount. See Correy,

570 F.3d at 377, 380. Second, not only did we not find Correy

independently responsible for at least five kilograms of cocaine,

we also did not direct the sentencing judge to find as such; in

fact, we explicitly stated that our conspiracy-wide conclusions

"sa[id] nothing about the drug quantities foreseeable to each

individual," and left the individualized assessment up to the

sentencing judge. Id. at 380.

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 These misunderstandings led Judge Gelpí to forgo making

the individualized drug-quantity finding, based on his review of

the entire record and assessment of witness credibility, that this

court demanded. See id. at 388, 402. As a result, he refused to

consider Correy's record-based argument that he was responsible for

under five kilograms of cocaine. Although Judge Gelpí's ultimate

conclusion that Correy was responsible for five to fifteen

kilograms of cocaine is plausible and perhaps, as Judge Gelpí

suggested, even "utterly generous" under the preponderance of the

evidence standard used at sentencing, this does not alter the fact

that Judge Gelpí failed to perform the individualized, record-based

analysis that this Court ordered him to undertake on remand.

This failure to comply with our order justifies vacatur

and remand, just as it did when we considered this case in 2005 and

2011. See, e.g., id. at 384; United States v. Vigneau, 337 F.3d

62, 67 (1st Cir. 2003) ("One aspect of the law of the case doctrine

is the 'mandate' rule, which requires a district court to follow

the decisions of a higher court."); United States v. Ticchiarelli,

171 F.3d 24, 31 (1st Cir. 1999) (same). Accordingly, we vacate and

remand Correy's case for resentencing for the third time, and — at

the risk of sounding like a broken record — direct the sentencing

judge to determine the drug quantity specifically attributable to

Correy by thoroughly reviewing the record and assessing witness

credibility.

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B. Remaining Issues

Correy raises three further arguments on appeal.6

However, since we are remanding Correy's case for the sentencing

judge to make an individualized drug-quantity determination and to

resentence Correy, we need not rule on these challenges here. See

Correy, 570 F.3d at 401.

III. CONCLUSION

For the foregoing reasons, we vacate Correy's sentence

and remand his case for resentencing consistent with this opinion.

As in our previous decisions in this matter, we express no view as

to the ultimate sentence that should be imposed on remand. See id.

at 402. Nor do we profess any opinion as to how the sentencing

judge should resolve Correy's credibility challenges, or what drug

quantity the judge should attribute to Correy in particular. See

id. We simply insist that the sentencing judge consider and

resolve the credibility and factual issues identified herein and

sentence Correy based on an individualized drug-quantity

assessment, as required by our case law and as ordered repeatedly

on remand.

6
As you will recall, Correy argues that: (1) Judge Gelpí
erred by refusing to grant Correy a two-offense-level reduction for
acceptance of responsibility; (2) Judge Gelpí committed procedural
error when he failed to make individualized findings about Correy's
offense conduct, thereby ignoring the requirements of 18 U.S.C.
§ 3553(a) and imposing a substantively unreasonable sentence; and
(3) Judge Gelpí wrongly denied Correy's Rule 35(a) motion for
correction of sentence. See text at part II, supra.

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