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United States v. Gonzalez-Melendez

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Before Lipez, Hansen *fn1 and Howard, Circuit Judges.

In this opinion, we address several issues with respect to the conviction and sentence of Felix Gonzalez- Melendez for aiding and abetting a carjacking in violation of 18 U.S.C. * 2219(1) and (2). Previously, we remanded a portion of this case to the district court (we did, however, retain jurisdiction), so that it could determine whether certain prior out-of-court statements made by Lawrence Evans, the supervisor of both the victim of the carjacking and the appellant, were discoverable under the Jencks Act. See United States v. Gonzalez-Melendez (Gonzalez-Melendez I), 570 F.3d 1, 2-3 (1st Cir. 2009) (per curiam). In addition, we asked the district court, on remand, to augment the record with respect to its handling of a jury note. This note had requested copies of the indictment and the court’s instructions of law, as well as an explanation of an unspecified issue. See id. at 3.

Now that the district court has provided the information we sought, we proceed to decide the totality of Gonzalez-Melendez’s appeal. Although the trial leading to the appellant’s conviction was not free from infirmity, it did not suffer from a crippling malaise. Accordingly, we affirm the conviction. The same cannot be said about the sentence: as the government concedes in its brief, the appellant was not afforded the opportunity to allocute before the district court pronounced sentence. Consequently, we vacate the sentence and remand for re-sentencing.

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