United States v. Aller
| Decision Date | 11 September 2020 |
| Docket Number | 00-cr-977 (JGK) |
| Parties | UNITED STATES of America, v. Kevin ALLER, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Nicole Alexandra LaBarbera, Andrew Seth Dember, U.S. Attorney's Office, New York, NY, for USA.
On May 22, 2003, a jury found Kevin Aller guilty of one count of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") in violation of 18 U.S.C. § 1962(d) (Count Two); one count of conspiracy, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute less than five grams of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(C) (Count Three); and one count of conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5) (Count Four). On September 26, 2003, Aller was sentenced on those three counts principally to 20 years’ imprisonment on Counts Two and Three, and 10 years’ imprisonment on Count Four, all to run consecutively, for a total sentence of 50 years’ imprisonment. Following two direct appeals – one after initial sentencing and one after resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) – and two petitions under 28 U.S.C. § 2255, Aller's convictions stand and his term of imprisonment remains 50 years. Pending before the Court now is a motion by Aller to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) ; a petition for a writ of audita querela; and a motion pursuant to Section 404 of the First Step Act. For the reasons that follow, the motion pursuant to 18 U.S.C. § 3582(c)(2) is denied ; the petition for a writ of audita querela is denied ; and the motion under the First Step Act is granted .1
On October 1, 2002, a nine-count superseding indictment, S4 00 Cr. 977 (the "Indictment"), was filed against Aller. Dkt. No. 52. Count One charged Aller with participating in a racketeering enterprise known as "Baby J's Crew," in violation of the RICO Act, 18 U.S.C. § 1962(c). The predicate racketeering acts alleged in Count One included two murders and a conspiracy to distribute and possess with the intent to distribute narcotics. Count Two charged Aller with a RICO conspiracy, in violation of 18 U.S.C. § 1962(d). Count Three charged Aller with participating in a narcotics conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with the intent to distribute a quantity of cocaine and crack cocaine in excess of five kilograms, in violation of 21 U.S.C. § 841(b)(1)(A). Count Four alleged that Aller conspired to murder Joseph Coppedge in aid of racketeering, in violation of 18 U.S.C. § 1959(a). Count Five alleged that Aller did in fact murder Joseph Coppedge in aid of racketeering, in violation of 18 U.S.C. § 1959(a). Counts Six and Seven charged Aller with murdering Kiron Little and Coppedge while engaged in a drug trafficking offense, in violation of 21 U.S.C. § 848(e)(1)(A). Counts Eight and Nine charged Aller with firearm offenses, in violation of 18 U.S.C. § 924(c) and (j).
On May 12, 2003, Aller went to trial before Judge John S. Martin and a jury. The Government proceeded at trial only on Counts One through Six.
On May 22, 2003, the jury returned a verdict. The jury found the defendant guilty of the RICO conspiracy alleged in Count Two, the narcotics conspiracy alleged in Count Three, and conspiracy to murder Joseph Coppedge in aid of racketeering as alleged in Count Four. With respect to the narcotics conspiracy charged in Count Three, although the superseding indictment charged Aller with a conspiracy to possess and distribute with the intent to distribute at least five kilograms of cocaine and at least 50 grams of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A), the jury found Aller guilty of the lesser-included offense of conspiring to possess and distribute with the intent to distribute less than 5 grams of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(C). The jury acquitted Aller of the substantive murder of Coppedge in aid of racketeering alleged in Count Five and of the substantive murder of Coppedge while engaged in drug trafficking alleged in Count Six. The jury was unable to reach a verdict on Count One, the substantive RICO charge. Without objection from the parties, Judge Martin accepted the partial verdict.
The Probation Office prepared a Presentence Investigation Report ("PSR").The PSR noted that pursuant to § 3D1.2(c), the RICO conspiracy count and the narcotics conspiracy count would be grouped together as Group 1 because the narcotics conspiracy was a specific offense characteristic of the RICO conspiracy. PSR ¶ 35. The conspiracy to murder in aid of racketeering count would be grouped alone as Group 2 because it involved a separate victim. Id.
With respect to calculating the base offense level for the RICO conspiracy conviction, the PSR noted that the conviction was covered by U.S.S.G. § 2E1.1, which in turn directed that the Guideline for the underlying racketeering activity be used, in this case the Guidelines section covering narcotics conspiracy, U.S.S.G. § 2D1.1. Id. ¶ 36. Based on the jury's finding that the narcotics conspiracy involved less than 5 grams of crack cocaine, the offense level for the Group 1 convictions would be 24. Id. However, because the offense conduct resulted in the murder of Joseph Coppedge, which would have constituted murder under 18 U.S.C. § 1111 if it had occurred within the territorial or maritime jurisdiction of the United States, the PSR noted that U.S.S.G. § 2D1.1(d)(1) provided for a cross-reference to the first-degree murder Guidelines section, § 2A1.1, and that therefore the base offense level for the Group 1 convictions – the RICO conspiracy and the narcotics conspiracy – was 43. Id.
With respect to calculating the based offense level for Group 2, which consisted only of the conspiracy to commit murder in aid of racketeering, the PSR noted that the applicable Guidelines section was U.S.S.G. § 2E1.3, which in turn directed that the Guideline for the underlying racketeering activity be used. Id. ¶ 42. Because the underlying activity was conspiracy to commit murder, the applicable Guidelines section was U.S.S.G. § 2A1.5, which in turn directed that if the offense resulted in the death of a victim, the first-degree murder Guideline should be used, § 2A1.1 Id. Because the conspiracy to commit murder in aid of racketeering offense allegedly resulted in the murder of Joseph Coppedge, the base offense level for the Group 2 conviction in this case was 43, the highest offense level provided for by the Guidelines. Id. The PSR calculated that Aller had a criminal history category of II. Id. ¶ 57.
Based on the total offense level of 43 and the criminal history category of II, the PSR noted that the guidelines range for imprisonment was Life, which was superseded by the statutory maximum terms of imprisonment pursuant to U.S.S.G. § 5G1.1(c)(1). Id. ¶ 87. The statutory maximum for the RICO conspiracy conviction was 20 years’ imprisonment; the statutory maximum for the narcotics conspiracy conviction was 20 years’ imprisonment; and the statutory maximum for the murder in aid of racketeering conviction was 10 years’ imprisonment. Id. ¶¶ 84-86.
At sentencing on September 26, 2003, Judge Martin noted that the drug quantity had not been calculated in the PSR in connection with the narcotics conspiracy conviction. Sent. Tr. at 4. The Government noted that the drug quantity was immaterial to sentencing in this case, because the Guidelines for the narcotics conspiracy were calculated not by reference to the drug quantity but by a cross-reference contained in U.S.S.G. § 2D1.1, which provides that if a victim is murdered in a narcotics conspiracy, the offense level should be calculated by reference to the murder guidelines. Sent. Tr. at 4-5. Judge Martin agreed, noting that in this case, the drug quantity "will affect neither the guideline range nor in my view the conditions of confinement." Sent. Tr. at 5.
At sentencing, Aller argued for a downward departure pursuant to United States v. Rahman, 189 F.3d 88 (2d Cir. 1999) (per curiam), which the Government opposed.2
Judge Martin stated that he did "not think this is an appropriate case to depart below the guideline [range] as set forth in the presentence report" because "the bottom line is two people are dead." Sent. Tr. at 13. Judge Martin stated that although there were some "commendable portions of Mr. Aller's life, as is reflected in the correspondence from his family, ... none that can outweigh the impact, the seriousness of the crime he committed." Sent. Tr. at 13. As a result, Judge Martin sentenced Aller principally to the statutory maximum of consecutive terms of imprisonment of 20 years on Count Two, 20 years on Count Three, and 10 years on Count Four, for a total of 50 years’ imprisonment. Sent. Tr. at 14.
Aller then appealed the sentence and conviction on various grounds relating to jury instructions and the sufficiency of evidence. See United States v. McAllister, 112 F. App'x 771, 773-74 (2d Cir. 2004). The Court of Appeals affirmed the judgment of conviction, but stayed the mandate pending the Supreme Court's resolution of United States v. Booker. Id.
Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the case was remanded to the district court for further proceedings pursuant to United States v. Crosby, 397 F.3d 103 (2005). Because Judge Martin had retired, the case was reassigned to Judge Thomas P. Griesa. After receiving submissions from the parties in connection with resentencing, Judge Griesa proceeded to resentencing on May 28, 2009.
The Probation Department prepared a PSR prior to re-sentencing that was substantially the same one used by Judge Martin at the initial sentencing.
At resentencing, Judge Griesa first asked the parties about the predicate acts for the RICO...
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