United States v. Spies

08-4211-cr (L)
United States v. Spies
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
Petition for Rehearing Filed: February 9, 2011 4
Decided: November 29, 2011 5
Docket No. 09-3266-cr(CON) 6
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UNITED STATES OF AMERICA, 9
10 Appellee, 11
12 v. 13
14 CHRISTIAAN DEWET SPIES, also known as David, 15
16 Defendant-Appellant-Petitioner, 17
18 NIKOLAI NADIRASHVILI, also known as Nikoloz Nadirashvili, also 19 known as Nikush, LEVAN CHVELIDZE, DIMITRIY VOROBEYCHIK, IOSEB 20 KHARABADZE, also known as Soso, and ARTUR SOLOMONYAN, also known 21 as Alex, 22
23 Defendants-Appellants, 24
25 JOSEPH COLPANI, also known as Joe, MICHAEL GUY DEMARE, also known 26 as Michel, ARMEN RAZMIK BARSEGHYAN, SPARTAK VAHAGN YERIBEKYAN, 27 LEVON SOLOMONYAN, ALLAH MCQUEEN, RAJAB CHAVIS, also known as 28 Jabs, also known as Keith Chavis, GAREGIN GASPARYAN, also known 29 as Garik, MICHAEL JIMENEZ, also known as Mike, NIEMAN MYLES, also 30 known as Luis, WILLIAM JESUS THOMAS, VAKHTANG MACHITIDZE, TIGRAN 31 GEVORGYAN, also known as Tiko, ARMAND ABRAMIAN, also known as 32 Armo, 33
34 Defendants. 35
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B e f o r e: WINTER, POOLER, and HALL, Circuit Judges. 1
On appellant Spies’s Petition for Rehearing by the Panel. 2
The Petition for Rehearing is granted. We find that the 3
district court used the incorrect standard in applying certain 4
offense level enhancements under Section 2K2.1(b) of the Federal 5
Sentencing Guidelines during the sentencing of appellants Spies 6
and Kharabadze. Therefore, we vacate their sentences and remand 7
for resentencing in accordance with our prior opinion. 8
9 John Burke, Brooklyn, New York, for 10 Defendant-Appellant-Petitioner 11 Spies. 12
13 WINTER, Circuit Judge: 14
Appellant Spies petitions for a rehearing of our decision in 15
United States v. Nadirashvili, --- F.3d ---, 2011 WL 3672467 (2d 16
Cir. 2011). In that decision, we, inter alia, vacated appellant 17
Solomonyan’s sentence because the district court used the 18
incorrect standard -- preponderance of the evidence -- in 19
applying two offense level enhancements under the Federal 20
Sentencing Guidelines for the involvement of: (i) 200 or more 21
firearms, under U.S.S.G. § 2K2.1(b)(1)(E); and (ii) a destructive 22
device, under U.S.S.G. § 2K2.1(b)(3)(A). 23
Spies argues that his sentence should also be vacated 24
because the district court used the preponderance of the evidence 25
standard in applying the same offense enhancements in the 26
calculation of his guidelines sentence. We agree. We also, sua 27

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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
sponte, take note that the same incorrect standard was used in 1
applying the destructive device enhancement as to appellant 2
Kharabadze. While neither appellant argued this point in their 3
respective briefs, 1 and Kharabadze has not filed a motion for 4
rehearing, we believe that it is in the interest of justice to 5
vacate both of their sentences. 6
We therefore grant the petition for rehearing, vacate the 7
sentences of Spies and Kharabadze, and remand to the district 8
court for resentencing consistent with our prior opinion. 9
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