UNITED STATES of America, Appellee, v. Ralph CRUICKSHANK Jr. also known as Trini, and Al Castle, Defendants, Wayne Gaskin, also known as Atiba, Defendant-Appellant, 378 F. App'x 82

SUMMARY ORDER Defendant Wayne Gaskin appeals the denial of his motion to vacate and correct his sentence. We presume the parties’ familiarity with the facts of the case, which are set forth in the decision affirming Gas-kin’s conviction on direct appeal. See United States v. Gaskin, 364 F.3d 438, 445-51 (2d Cir.2004). Following our decision, Gaskin filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that he had received ineffective assistance of counsel and that his sentence was unlawfully imposed.

The district court denied the motion in part, and scheduled, sua sponte, a sentencing proceeding based on United States v. Crosby, 397 F.3d 103 (2d Cir.2005). Gaskin v. United States, 591 F.Supp.2d 247, 259 (W.D.N.Y.2008). The court declined, however, to issue a certificate of appealability with respect to defendant’s ineffective assistance claims. See id. At the sentencing proceeding on March 4, 2009, the district court noted that it had accepted submissions from defendant’s counsel, and it discussed the application of both the now-advisory Sentencing Guidelines and the factors set forth at 18 U.S.C. § 3553(a).

Defendant’s counsel did not offer additional argument at the proceeding itself, and the district court then declined to resentence defendant. At the end of the proceeding the court indicated that defendant could appeal its ruling, which we regard as sufficient to permit the present appeal. On appeal, defendant does not challenge the resentencing procedure applied by the district court and instead argues that his sentence is unreasonable. Specifically, he contends that the court failed to “properly take into consideration the similarities” between himself and A1 Castle, one of his co-defendants.

However, the record reflects that Gaskin is not, in fact, similarly situated with Castle. Therefore, the district court was well within the bounds of its discretion to conclude that the disparity between the sentences imposed on Gaskin and Castle was not “unwarranted.” 18 U.S.C. § 3553(a)(6). We have considered each of Gaskin’s arguments in this appeal and find them to be without merit. Accordingly, the judgment of the district court is affirmed.