United States v. Spies

661 F.3d 1158, 2011 U.S. App. LEXIS 23721, 2011 WL 5929015

• Court: Court of Appeals for the Second Circuit
• Decided: November 29, 2011
• Docket: Docket 09-3266-cr (CON)
• Status: Published

Opinion

WINTER, Circuit Judge:

Appellant Spies petitions for a rehearing of our decision in United States v. Nadirashvili, 655 F.3d 114 (2d Cir.2011). In that decision, we, inter alia, 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)(l)(E); and (ii) a destructive device, under U.S.S.G. § 2K2.1(b)(3)(A).

Spies argues that his sentence should also be vacated because the district court used the preponderance of the evidence standard in applying the same offense enhancements in the calculation of his guidelines sentence. We agree. We also, sua sponte, take note that the same incorrect standard was used in applying the destructive device enhancement as to appellant Kharabadze. While neither appellant argued this point in their respective briefs, 1 and Kharabadze has not filed a motion for rehearing, we believe that it is in the inter est of justice to vacate both of their sentences.

We therefore grant the petition for rehearing, vacate the sentences of Spies and Kharabadze, and remand to the district court for resentencing consistent with our prior opinion.

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.