         09-2373-cr
         USA v. Aller


                                   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 16 th day of July, two thousand and                                    ten.
 5
 6       PRESENT: REENA RAGGI,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-2373-cr
18
19       KEVIN ALLER,
20
21                                       Defendant-Appellant.
22
23
24




                                                            1
 1   FOR APPELLANT:     ARZA FELDMAN, Feldman & Feldman,
 2                      Uniondale, NY.
 3
 4   FOR APPELLEES:     DANIEL A. BRAUN, (Katherine Polk Failla,
 5                      on the brief), Assistant United States
 6                      Attorney, for Preet Bharara, United
 7                      States Attorney for the Southern District
 8                      of New York, New York, NY.
 9
10        Appeal from the United States District Court for the
11   Southern District of New York (Griesa, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the district court be

15   AFFIRMED.

16       Kevin Aller (“appellant”) appeals from a judgment of

17   conviction entered on May 28, 2009, in the United States

18   District Court for the Southern District of New York

19   (Griesa, J.), following a remand from this Court pursuant to

20   United States v. Booker, 543 U.S. 220 (2005), and United

21   States v. Crosby, 397 F.3d 103 (2d Cir. 2005).   Appellant

22   was convicted on charges of RICO conspiracy, 18 U.S.C. §

23   1962(d), narcotics conspiracy, 21 U.S.C. § 846, and

24   conspiracy to commit murder in aid of racketeering, 18

25   U.S.C. § 1959(a), for offenses committed while participating

26   in the affairs of a racketeering enterprise known as “Baby

27   J’s Crew.”   Appellant was sentenced to an aggregate prison

28   term of fifty years, and now challenges various aspects of


                                   2
1    that sentence on appeal.   We assume the parties’ familiarity

2    with the underlying facts, the procedural history, and the

3    issues presented for review.

4        We review a sentence for both procedural and

5    substantive reasonableness.     United States v. Jones, 531

6    F.3d 163, 170 (2d Cir. 2008).       Appellant first argues that

7    his sentence is substantively unreasonable because it is

8    “dramatically disproportionate” to the sentences of his co-

9    defendants.   That argument is meritless.      A district court

10   is required to consider unwarranted nationwide disparities,

11   United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008),

12   but is not obliged to account for disparities among co-

13   defendants in imposing a sentence.       See 18 U.S.C. §

14   3553(a)(6).   But in any event, appellant is not similarly

15   situated to his co-defendants for various reasons – not the

16   least of which is that appellant refused to cooperate with

17   authorities and insisted on going to trial.       The sentence

18   disparities are therefore not “unwarranted,” and do not

19   impugn the reasonableness of appellant’s sentence, which

20   falls comfortably within the “range of permissible

21   decisions.”   See United States v. Cavera, 550 F.3d 180, 189

22   (2d Cir. 2008).


                                     3
1          Appellant next argues that the sentencing judge erred

2    in calculating appellant’s base offense level.

3    Specifically, he avers that the judge should not have relied

4    on the fact that the conspiracy to commit murder in aid of

5    racketeering, of which appellant was convicted, actually

6    resulted in the death of a victim.            Because he was acquitted

7    of the substantive crime of murder, appellant maintains, his

8    offense level should not have been increased based on the

9    fact of the victim’s death.          That argument is unavailing.

10   It is well settled that in the post-Booker world, a

11   sentencing judge retains the authority to find facts

12   relevant to sentencing by a preponderance of the evidence,

13   even those of acquitted conduct. 1           See United States v.

14   Vaughn, 430 F.3d 518, 525-27 (2d Cir. 2005).               It was

15   therefore not improper for the court to rely on the fact

16   that the conspiracy resulted in the death of a victim in

17   calculating appellant’s base offense level of 43.                 See 18

18   U.S.C. 1959(a); U.S.S.G. § 2A1.5(c)(1).

19         Finally, appellant claims that the district court erred

20   in granting the government’s motion to correct the judgment

           1
             Of course, that principle is subject to Sixth Amendment constraints
     not presented here, such as if the judge relied upon those facts to impose a
     sentence greater than the maximum supportable by the jury verdict. See
     generally Cunningham v. California, 549 U.S. 270 (2007).


                                           4
1    form, which erroneously stated that appellant’s sentences on

2    Counts 2 and 3 were to be served concurrently (for a total

3    of thirty years), instead of consecutively (for a total of

4    fifty years).   That argument is specious, because while it

5    would have been well within the district court’s authority

6    to correct a scrivener’s error, see Fed. R. Crim. P. 36, the

7    court did not even have occasion to do so.     Instead, the

8    district court proceeded with the Crosby remand by

9    conducting a complete re-sentencing de novo.     Appellant

10   therefore challenges a ruling never made.

11       We have considered the appellant’s remaining arguments

12   and find them to be without merit.   For the foregoing

13   reasons, the judgment of the district court is hereby

14   AFFIRMED.

15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19
20
21




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