The Honorable Paul A. Crotty, United States District Court for the * Southern District of New York, sitting by designation. 09-1218-cr United States v. Gaskin

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

R ULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMA RY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CIT ING A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMA RY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PA RTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 day of May, two thousand and ten. th 

### 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 29 302 

### 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, 2593 

### 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 that4 

### 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