         09-1218-cr
         United States v. Gaskin


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25 th day of May, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                PAUL A. CROTTY,
10                         District Judge. *
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-1218-cr
18
19       RALPH CRUICKSHANK JR. also known as
20       Trini, and AL CASTLE,
21
22                                       Defendants,
23
24       WAYNE GASKIN, also known as Atiba,
25
26                                       Defendant-Appellant.
27
28
29
30

                 *
                 The Honorable Paul A. Crotty, United States District Court for the
         Southern District of New York, sitting by designation.
 1   FOR APPELLANT:                JAMES S. WOLFORD, The Wolford
 2                                 Law Firm, LLP, Rochester, NY.
 3
 4   FOR APPELLEE:                 STEPHAN J. BACZYNSKI, Assistant
 5                                 United States Attorney, for
 6                                 Kathleen M. Mehltretter, United
 7                                 States Attorney for the Western
 8                                 District of New York, Buffalo,
 9                                 NY.
10
11        Appeal from the United States District Court for the
12   Western District of New York (Siragusa, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the district court is

16   AFFIRMED.

17       Defendant Wayne Gaskin appeals the denial of his motion

18   to vacate and correct his sentence.     We presume the parties’

19   familiarity with the facts of the case, which are set forth

20   in the decision affirming Gaskin’s conviction on direct

21   appeal.     See United States v. Gaskin, 364 F.3d 438, 445-51

22   (2d Cir. 2004).

23       Following our decision, Gaskin filed the instant motion

24   pursuant to 28 U.S.C. § 2255, arguing that he had received

25   ineffective assistance of counsel and that his sentence was

26   unlawfully imposed.     The district court denied the motion in

27   part, and scheduled, sua sponte, a sentencing proceeding

28   based on United States v. Crosby, 397 F.3d 103 (2d Cir.

29   2005).    Gaskin v. United States, 591 F. Supp. 2d 247, 259

                                     2
1    (W.D.N.Y. 2008).   The court declined, however, to issue a

2    certificate of appealability with respect to defendant’s

3    ineffective assistance claims.    See id.

4        At the sentencing proceeding on March 4, 2009, the

5    district court noted that it had accepted submissions from

6    defendant’s counsel, and it discussed the application of

7    both the now-advisory Sentencing Guidelines and the factors

8    set forth at 18 U.S.C. § 3553(a).    Defendant’s counsel did

9    not offer additional argument at the proceeding itself, and

10   the district court then declined to resentence defendant.

11   At the end of the proceeding the court indicated that

12   defendant could appeal its ruling, which we regard as

13   sufficient to permit the present appeal.

14       On appeal, defendant does not challenge the

15   resentencing procedure applied by the district court and

16   instead argues that his sentence is unreasonable.

17   Specifically, he contends that the court failed to “properly

18   take into consideration the similarities” between himself

19   and Al Castle, one of his co-defendants.    However, the

20   record reflects that Gaskin is not, in fact, similarly

21   situated with Castle.   Therefore, the district court was

22   well within the bounds of its discretion to conclude that



                                   3
1    the disparity between the sentences imposed on Gaskin and

2    Castle was not “unwarranted.”       18 U.S.C. § 3553(a)(6).

3        We have considered each of Gaskin’s arguments in this

4    appeal and find them to be without merit.       Accordingly, the

 5   judgment of the district court is affirmed.
 6
 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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