United States v. Aller
Appeal Court of Appeals for the Second Circuit, Case No. 09-2373

Tags No tags have been applied so far. Sign in to add some.
Request Update Request UpdateSpaceE-Mail Alert Get E-Mail Alerts

  Text Tab Overlap Citations (145) Tab Overlap Cited By (1) Right End
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

[End Page 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 [End Page 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). [End Page 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 [End Page 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). [End Page 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

[End Page 5]

Statistics

This case has been viewed 486 times.

No comments have been added yet. Sign in to post a comment.
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 
PlainSite
Sign Up
Need Password Help?