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09-2373-cr USA v. Aller UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SUMMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PE RMI TTE D AND IS GOV ERN ED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AN D T HIS CO URT ’ S L OCA L RULE 32.1.1. W HEN CI TIN G ASUMMA RY ORD ER IN A D OCU MEN T F ILE D W ITH TH IS COU RT , A PAR TY MUST CITE EITH ER THE 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 MMARY 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 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 23 242 

### 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 of3 

### 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).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- Bookerworld, 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 judgment5 

### 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 Crosbyremand 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