1

09-2373-cr

USA v. Aller

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 day of July, two thousand and ten. th

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
2

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
3

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 co9 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 co13 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). 
 Of course, that principle is subject to Sixth Amendment constraints 1

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 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. See United States v. 1

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
5

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