United States v. Spies, et al., No. 09-3266 (2d Cir. 2011)
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Appellant Spies petitioned for a rehearing on the court's decision in United States v. Nadirashvili where the court vacated appellant Solomonyan's sentence because the district court used the incorrect standard, preponderance of the evidence, in applying two offense level enhancements under the Federal Sentencing Guidelines for the involvement of: (i) 200 or more firearms, under U.S.S.G. 2K2.1(b)(1)(E); and (ii) a destructive device, under U.S.S.G. 2K2.1(b)(3)(A). The court found that the district court used the incorrect standard in applying the enhancements of appellants Spies and Kharabadze. Therefore, the court vacated their sentences and remanded for resentencing.
This opinion or order relates to an opinion or order originally issued on August 23, 2011.
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08-4211-cr (L) United States v. Spies 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 Petition for Rehearing Filed: February 9, 2011 5 Decided: November 29, 2011 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Docket No. 09-3266-cr(CON) - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. CHRISTIAAN DEWET SPIES, also known as David, Defendant-Appellant-Petitioner, NIKOLAI NADIRASHVILI, also known as Nikoloz Nadirashvili, also known as Nikush, LEVAN CHVELIDZE, DIMITRIY VOROBEYCHIK, IOSEB KHARABADZE, also known as Soso, and ARTUR SOLOMONYAN, also known as Alex, Defendants-Appellants, JOSEPH COLPANI, also known as Joe, MICHAEL GUY DEMARE, also known as Michel, ARMEN RAZMIK BARSEGHYAN, SPARTAK VAHAGN YERIBEKYAN, LEVON SOLOMONYAN, ALLAH MCQUEEN, RAJAB CHAVIS, also known as Jabs, also known as Keith Chavis, GAREGIN GASPARYAN, also known as Garik, MICHAEL JIMENEZ, also known as Mike, NIEMAN MYLES, also known as Luis, WILLIAM JESUS THOMAS, VAKHTANG MACHITIDZE, TIGRAN GEVORGYAN, also known as Tiko, ARMAND ABRAMIAN, also known as Armo, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 B e f o r e: WINTER, POOLER, and HALL, Circuit Judges. 2 On appellant Spies s Petition for Rehearing by the Panel. 3 The Petition for Rehearing is granted. We find that the 4 district court used the incorrect standard in applying certain 5 offense level enhancements under Section 2K2.1(b) of the Federal 6 Sentencing Guidelines during the sentencing of appellants Spies 7 and Kharabadze. 8 for resentencing in accordance with our prior opinion. 9 10 11 12 13 14 15 Therefore, we vacate their sentences and remand John Burke, Brooklyn, New York, for Defendant-Appellant-Petitioner Spies. WINTER, Circuit Judge: Appellant Spies petitions for a rehearing of our decision in 16 United States v. Nadirashvili, --- F.3d ---, 2011 WL 3672467 (2d 17 Cir. 2011). 18 Solomonyan s sentence because the district court used the 19 incorrect standard -- preponderance of the evidence -- in 20 applying two offense level enhancements under the Federal 21 Sentencing Guidelines for the involvement of: 22 firearms, under U.S.S.G. § 2K2.1(b)(1)(E); and (ii) a destructive 23 device, under U.S.S.G. § 2K2.1(b)(3)(A). 24 In that decision, we, inter alia, vacated appellant (i) 200 or more Spies argues that his sentence should also be vacated 25 because the district court used the preponderance of the evidence 26 standard in applying the same offense enhancements in the 27 calculation of his guidelines sentence. 2 We agree. We also, sua 1 sponte, take note that the same incorrect standard was used in 2 applying the destructive device enhancement as to appellant 3 Kharabadze. 4 respective briefs,1 and Kharabadze has not filed a motion for 5 rehearing, we believe that it is in the interest of justice to 6 vacate both of their sentences. 7 While neither appellant argued this point in their We therefore grant the petition for rehearing, vacate the 8 sentences of Spies and Kharabadze, and remand to the district 9 court for resentencing consistent with our prior opinion. 10 11 12 1 Spies did state in his brief that he intended to join the arguments of his co-appellants applicable to him but did not reference his sentencing procedure, which was of course separate from that of Solomonyan. Nevertheless, the interests of justice require us to address the argument. 3
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