UNITED STATES of America, Appellee, v. Kevin ALLER, Defendant-Appellant, 384 F. App'x 34

SUMMARY ORDER Kevin Aller (“appellant”) appeals from a judgment of conviction entered on May 28, 2009, in the United States District Court for the Southern District of New York (Griesa, J.), following a remand from this Court pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

Appellant was convicted on charges of RICO conspiracy, 18 U.S.C. § 1962(d), narcotics conspiracy, 21 U.S.C. § 846, and conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a), for offenses committed while participating in the affairs of a racketeering enterprise known as “Baby J’s Crew.” Appellant was sentenced to an aggregate prison term of fifty years, and now chai-lenges various aspects of that sentence on appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review a sentence for both procedural and substantive reasonableness. United States v. Jones, 531 F.3d 163, 170 (2d Cir.2008). Appellant first argues that his sentence is substantively unreasonable because it is “dramatically disproportionate” to the sentences of his co-defendants. That argument is meritless. A district court is required to consider unwarranted nationwide disparities, United States v. Frias, 521 F.3d 229, 236 (2d Cir.2008), but is not obliged to account for disparities among co-defendants in imposing a sentence. See 18 U.S.C. § 3553(a)(6).

But in any event, appellant is not similarly situated to his co-defendants for various reasons — not the least of which is that appellant refused to cooperate with authorities and insisted on going to trial. The sentence disparities are therefore not “unwarranted,” and do not impugn the reasonableness of appellant’s sentence, which falls comfortably within the “range of permissible decisions.” See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008). Appellant next argues that the sentencing judge erred in calculating appellant’s base offense level.

Specifically, he avers that the judge should not have relied on the fact that the conspiracy to commit murder in aid of racketeering, of which appellant was convicted, actually resulted in the death of a victim. Because he was acquitted of the substantive crime of murder, appellant maintains, his offense level should not have been increased based on the fact of the victim’s death. That argument is unavailing. It is well settled that in the post-Booker world, a sentencing judge retains the authority to find facts relevant to sentencing by a preponderance of the evidence, even those of acquitted conduct.

See United States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir.2005). It was therefore not improper for the court to rely on the fact that the conspiracy resulted in the death of a victim in calculating appellant’s base offense level of 43. See 18 U.S.C.1959(a); U.S.S.G. § 2A1.5(c)(l). Finally, appellant claims that the district court erred in granting the government’s motion to correct the judgment form, which erroneously stated that appellant’s sentences on Counts 2 and 3 were to be served concurrently (for a total of thirty years), instead of consecutively (for a total of fifty years).

That argument is specious, because while it would have been well within the district court’s authority to correct a scrivener’s error, see Fed.R.Crim.P. 36, the court did not even have occasion to do so. Instead, the district court proceeded with the Crosby remand by conducting a complete re-sentencing de novo. Appellant therefore challenges a ruling never made. We have considered the appellant’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. .

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, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).