**08-4211-cr (L) United States v. Nadirashvili (Solomonyan)** 

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2 August Term, 2010 3 (Argued: February 9, 2011 Decided: August 23, 2011) 4 Docket Nos. 08-4211-cr(L), 09-0074-cr(CON), 09-0610-cr(CON), 5 09-1493-cr(CON), 09-3266-cr(CON), 09-3801-cr(CON) 6 7

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - 8 UNITED STATES OF AMERICA, 9 10 Appellee, 11 12 v. 13 14 NIKOLAI NADIRASHVILI, also known as Nikoloz Nadirashvili, also 15 known as Nikush, LEVAN CHVELIDZE, DIMITRIY VOROBEYCHIK, IOSEB 16 KHARABADZE, also known as Soso, CHRISTIAAN DEWET SPIES, also 17 known as David, and ARTUR SOLOMONYAN, also known as Alex, 18 19 Defendants-Appellants, 20 21 JOSEPH COLPANI, also known as Joe, MICHAEL GUY DEMARE, also known 22 as Michel, ARMEN RAZMIK BARSEGHYAN, SPARTAK VAHAGN YERIBEKYAN, 23 LEVON SOLOMONYAN, ALLAH MCQUEEN, RAJAB CHAVIS, also known as 24 Jabs, also known as Keith Chavis, GAREGIN GASPARYAN, also known 25 as Garik, MICHAEL JIMENEZ, also known as Mike, NIEMAN MYLES, also 26 known as Luis, WILLIAM JESUS THOMAS, VAKHTANG MACHITIDZE, TIGRAN 27 GEVORGYAN, also known as Tiko, ARMAND ABRAMIAN, also known as 28 Armo, 29 30 Defendants

. 31 32

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - 33 B e f o r e: WINTER, POOLER, and HALL, Circuit Judges

. 34 Appeals by six defendants from a conviction after a jury 35 trial in the United States District Court for the Southern 36

1District of New York (Richard J. Holwell, Judge) for a variety of 1 weapons trafficking offenses. Appellants challenge, inter alia, 2 the sufficiency of the evidence underlying their convictions, the 3 constitutionality of 22 U.S.C. § 2778(b)(1)(A)(ii) as applied to 4 one appellant, and the district court’s Sentencing Guidelines 5 calculation for another appellant. We find that the district 6 court used the wrong standard in applying certain offense level 7 enhancements under Section 2K2.1(b) of the Federal Sentencing 8 Guidelines during one appellant’s offense level calculation. We 9 therefore vacate that appellant’s sentence and remand for 10 resentencing. We affirm in all other respects. 11 HERALD PRICE FAHRINGER (Erica T. 12 Dubno, Nicole Neckles, on the 13 brief), Fahringer & Dubno, New 14 York, New York, forDefendant15 Appellant Nadirashvili

. 16 17 Susan V. Tipograph, Thomas Eddy, 18 New York, New York, forDefendant19 Appellant Chvelidze

. 20 21 KELLY J. SHARKEY, Brooklyn, New 22 York, forDefendant-Appellant 23 Vorobeychik

. 24 25 JAMES E. NEUMAN, New York, New 26 York, forDefendant-Appellant 27 Kharabadze

. 28 29 JOHN BURKE, Brooklyn, New York, for 30 Defendant-Appellant Spies

. 31 32 SETH GINSBERG (Louis V. Fasulo, 33 Fasulo, Shalley, and DiMaggio, New 34 York, New York, on the brief), New 35 York, New York, forDefendant36 Appellant Solomonyan

. 37 38

2DAVID B. MASSEY, Assistant United 1 States Attorney (Preet Bharara, 2 United States Attorney, on the 3 brief, Matthew L. Schwartz and 4 Andrew L. Fish, of counsel), United 5 States Attorney’s Office for the 6 Southern District of New York, New 7 York, forAppellee

. 8 9 WINTER, Circuit Judge: 10 Nikolai Nadirashvili, Levan Chvelidze, Dimitriy Vorobeychik, 11 Ioseb Kharabadze, Christiaan Dewet Spies, and Artur Solomonyan 12 appeal from their convictions after a jury trial before Judge 13 Holwell. Appellants were convicted of a variety of weapons 14 trafficking offenses, described in greater detail below. These 15 appeals followed. 16 We address three of the many issues raised by appellants, 17 finding, after due consideration, their remaining arguments to 18 lack merit. We hold that the evidence was sufficient to support 19 all of the convictions and reject a vagueness-as-applied argument 20 raised by Kharabadze. However, the district court employed the 21 wrong standard of proof at sentencing in imposing increases to 22 Solomonyan’s base offense level under Section 2K2.1(b)(1)(E) and 23 (b)(3)(A) of the Federal Sentencing Guidelines. We therefore 24 vacate Solomonyan’s sentence and remand for resentencing. 25 Otherwise, we affirm. 26

BACKGROUND 27 a) The Evidence 28 Because this is an appeal from a jury trial, we briefly 29

3describe the evidence in the light most favorable to the 1 government. SeeUnited States v. Gomez, 580 F.3d 94, 97 (2d Cir. 2 2009). 3 From February 2004 until March 2005, the government 4 conducted an investigation into a suspected weapons trafficking 5 ring with the aid of confidential source Kelly Davis. Davis 6 posed as a middleman for buyers of firearms and explosives while 7 cooperating with the government. Upon the government’s 8 direction, David resumed prior conversations with Spies about 9 Spies’ efforts to obtain something “Russian made” for Davis. 10 Spies put Davis in touch with Solomonyan, who in turn contacted 11 Kharabadze. Using court-authorized wiretaps, the government 12 recorded calls between Solomonyan and Kharabadze in which 13 Kharabadze said, “[e]verything has been put on hold" because 14 “government forces . . . relocated [to the Russian side] and 15 there’s no making a deal with them.” Solomonyan reported back to 16 Spies about the "obstacles." A few days later, however, 17 Solomonyan told Spies he was dealing with "very serious people" 18 and that the deal was "ninety-nine point nine percent." 19 In May 2004, Davis, Spies, and Solomonyan discussed how to 20 obtain and ship "grenades," "warheads," "missiles," and 21 "launchers," and Solomonyan repeatedly asked Davis to create an 22 order list. The following month, Solomonyan asked Kharabadze to 23 create a price list because he “ha[d] to show [the buyer] 24 something real.” Kharabadze agreed to create the list and told 25

4Solomonyan he could pick it up the following morning. The next 1 day, before leaving to attend a meeting with Davis and Spies, 2 Solomonyan visited Kharabadze’s apartment building for 3 approximately an hour. At the meeting with Davis and Spies, 4 Solomonyan wrote something on a piece of paper, handed it to 5 Davis, and told him to memorize it. In addition to discussing 6 the weapons on the list, Solomonyan also told Davis that he had 7 "overstayed" his visa and asked whether Davis could help. The 8 meeting was resumed two days later, when the three discussed 9 weapons, dimensions, shipping options, and prices in some detail. 10 Later that month, Solomonyan spoke over the phone with a man 11 named Artur Barseghyan about “exercises taking place [in 12 Leninakan, Armenia]” in which "everything that Georgia owned was 13 dumped there. And it's being actively taken out of there." Six 14 months later, in December 2004, Solomonyan spoke to Armen 15 Baregamyan, who was in Azerbaijan, about "merchandise" that would 16 go from Leninakan to Georgia to the United States. In January 17 2005, Davis, at the direction of the FBI, told Solomonyan and 18 Spies that he was "under a lot of pressure" and that the "time 19 limit is two weeks." He also said that he had green cards for 20 Solomonyan and Spies, but could not deliver them until he got the 21 "products." 22 Over the following two weeks, Solomonyan made contact with a 23 man in Armenia and managed to obtain digital photographs by email 24 of various weapons that were allegedly available, including a 25

5mortar launcher, anti-tank gun, and several missile launchers. 1 At a meeting in March 2005, Solomonyan showed these photos to 2 Davis, and the FBI arrested Solomonyan and Spies. 3 As the events above were unfolding, the government 4 instructed Davis to also try to obtain machine guns and 5 semi-automatic rifles already in the United States. In July 6 2004, Solomonyan and Spies spoke about buying new and used 7 "apartments," which the government contended was code for machine 8 guns. On September 11, 2004, Davis gave money to Solomonyan to 9 purchase guns. The same day, Solomonyan called Nadirashvili to 10 ask whether Nadirashvili knew where he could purchase “cars . . . 11 with automatic transmission[s].” Solomonyan explained that he 12 had “been talking to a dealer for a week now” and that a "man 13 came today, gave me the money," but that the dealer had vanished 14 at the last minute. Nadirashvili said, "I understand what you 15 are talking about," and told Solomonyan he would call Chvelidze 16 to see if he could arrange anything. Nadirashvili immediately 17 called Chvelidze. After some initial confusion during which time 18 Chvelidze thought Nadirashvili was talking about actual cars, 19 Chvelidze caught on and told Nadirashvili that he could not get 20 them that day, but to "[t]ell me if you want to place an order or 21 something." Nadirashvili relayed this information to Solomonyan. 22 Solomonyan called Chvelidze the following day to verify that 23 Nadirashvili "told [Chvelidze] about the cars." Chvelidze 24 confirmed this, and said he would try to help. Solomonyan also 25

6spoke to Nadirashvili again, who said he would "walk around 1 Brighton" to "see if there's anything there." Neither 2 Nadirashvili nor Chvelidze ultimately obtained any firearms for 3 Solomonyan. 4 Solomonyan also spoke with Vorobeychik on September 12. 5 Vorobeychik informed Solomonyan that he had told a third party, 6 "[Solomonyan] will call you. Don't be afraid of what he's going 7 to talk to you about." Solomonyan said, “I'll call him now," and 8 immediately placed a phone call to Allah McQueen. There was some 9 confusion while Solomonyan tried to get McQueen to understand 10 what he meant by "big trucks with . . . fully automatic 11 transmission." However, after Solomonyan said, "Listen, of 12 course I am not talking about vehicles," McQueen said he 13 understood what they were talking about. Over the next week, 14 Solomonyan and McQueen had a number of phone conversations in 15 which they spoke about setting up a deal involving "dogs," 16 "puppies," an "AK," "dog food," and "an Israeli," which the 17 government argued was code. On September 30, Vorobeychik asked 18 Solomonyan, "[c]an they really get it?" and Solomonyan responded, 19 "Well, I only need two pieces." Vorobeychik later told law 20 enforcement agents that "they" referred to McQueen. In a 21 conversation in October, Vorobeychik and Solomonyan discussed the 22 possibility of "build[ing] the empire" by dealing directly with 23 McQueen. McQueen ultimately provided Solomonyan and Spies with 24 three firearms. Solomonyan and Spies also obtained five 25

7additional firearms, apparently without Vorobeychik's assistance. 1 b) The Verdict and Sentencing 2 The jury convicted Solomonyan, Spies, and Kharabadze of 3 engaging in a conspiracy to traffic in foreign defense articles, 4 in violation of 22 U.S.C. § 2778(b)(1)(A)(ii) and (c) and 18 5 U.S.C. § 922(a)(4), and of trafficking in foreign defense 6 articles (or aiding and abetting thereof), in violation of 22 7 U.S.C. § 2778(b)(1)(A)(ii) and (c). Solomonyan, Spies, 8 Vorobeychik, Nadirashvili, and Chvelidze were convicted of 9 engaging in a domestic firearms trafficking conspiracy, in 10 violation of 18 U.S.C. § 922(a)(1)(A) and (o), of firearms 11 trafficking (or aiding and abetting thereof), in violation of 18 12 U.S.C. § 922(a)(1)(A) and of interstate firearms trafficking (or 13 aiding and abetting thereof), in violation of 18 U.S.C. § 924(n). 14 Solomonyan and Spies were also convicted of illegal transfer and 15 possession of a machine gun (or aiding and abetting thereof), in 16 violation of 18 U.S.C. § 922(o), and being illegal aliens in 17 possession of a firearm (or aiding and abetting thereof), in 18 violation of 18 U.S.C. § 922(g)(5). The district court sentenced 19 appellants as follows: Nadirashvili to 41 months’ imprisonment; 20 Chvelidze to 34 months’ imprisonment; Vorobeychik to 33 months’ 21 imprisonment; Kharabadze to 108 months’ imprisonment; Spies to 22 240 months’ imprisonment; and Solomonyan to 264 months’ 23 imprisonment. In calculating Solomonyan’s base offense level, 24 the court found by a preponderance of the evidence that two 25

8offense level increases applied pursuant to Section 2K2.1(b) of 1 the Federal Sentencing Guidelines: a 15-point increase for a 2 conspiracy involving a destructive device, and a 10-point 3 increase for a conspiracy involving at least 200 firearms. 4

DISCUSSION 5 Appellants raise a variety of issues on appeal. We 6 expressly address only three of these arguments. 7 a) Sufficiency of the Evidence as to Domestic Firearms 8 Trafficking 9 Appellants Nadirashvili, Chvelidze, and Vorobeychik 10 challenge the sufficiency of the evidence underlying their 11 convictions for aiding and abetting domestic firearms trafficking 12 in violation of 18 U.S.C. § 922(a)(2)(A). Vorobeychik argues 13 that although he put Solomonyan in touch with McQueen, through 14 whom Solomonyan ultimately obtained three firearms, he did not 15 knowingly assist in firearms trafficking because he did not know 16 why Solomonyan wanted an introduction to McQueen. Nadirashvili 17 and Chvelidze both argue that although they knew Solomonyan was 18 trying to engage in one specific weapons transaction, they were 19 unaware that he was engaged in a business of dealing in firearms 20 as required under the statute. They also argue that the evidence 21 did not demonstrate their intent to assist Solomonyan in 22 obtaining weapons. Solomonyan and Spies join in the sufficiency 23 challenges without making individualized arguments. 24 1) Firearms Trafficking Under 18 U.S.C. § 922(a)(1)(A) 25

9Section 922(a)(1)(A) makes it illegal for "any person . . . 1 except a . . . licensed dealer, to engage in the business of 2 . . . dealing in firearms, or in the course of such business to 3 ship, transport, or receive any firearm in interstate or foreign 4 commerce." A person is "engaged in the business" of dealing in 5 firearms when he "devotes time, attention, and labor to dealing 6 in firearms as a regular course of trade or business with the 7 principal objective of livelihood and profit through the 8 repetitive purchase and resale of firearms, but such term shall 9 not include a person who makes occasional sales, exchanges, or 10 purchases of firearms for the enhancement of a personal 11 collection or for a hobby, or who sells all or part of his 12 personal collection of firearms." 18 U.S.C. § 921(a)(21)(C). We 13 have held that: 14 [t]he government need not prove that dealing 15 in firearms was the defendant's primary 16 business. Nor is there a ‘magic number’ of 17 sales that need be specifically proven. 18 Rather, the statute reaches those who hold 19 themselves out as a source of firearms. 20 Consequently, the government need only prove 21 that the defendant has guns on hand or is 22 ready and able to procure them for the 23 purpose of selling them from [time] to time 24 to such persons as might be accepted as 25 customers. 26 27 United States v. Carter, 801 F.2d 78, 81-82 (2d Cir. 1986) 28 (internal quotation marks and citations omitted). 29 2) Application 30 “Although we review a claim of insufficient evidence de 31

10novo, a defendant challenging his verdict on sufficiency grounds 1 bears a heavy burden. We must uphold the jury's verdict if we 2 find that anyrational trier of fact could have found the 3 essential elements of the crime beyond a reasonable doubt.” 4 United States v. Hardwick, 523 F.3d 94, 100 (2d Cir. 2008) 5 (internal quotation marks and alteration omitted) (emphasis in 6 original). We “view the evidence, whether direct or 7 circumstantial, in the light most favorable to the government” 8 and “may not substitute our own determinations of credibility or 9 relative weight of the evidence for that of the jury.” Id. 10 (internal quotation marks omitted). 11 The sufficiency challenges brought by Solomonyan and Spies 12 may be quickly resolved. There was evidence that they not only 13 corresponded with each other, as well as with numerous contacts, 14 in their attempts to obtain firearms for Davis, but also 15 succeeded in procuring eight guns. This evidence was easily 16 sufficient for the jury to find beyond a reasonable doubt that 17 Solomonyan and Spies violated Section 922(a)(1)(A) by unlawfully 18 engaging in the business of dealing in firearms. 19 Vorobeychik’s challenge is also unfounded. Although he 20 claims to have been in the dark as to Solomonyan’s true 21 intentions, the government presented ample evidence to allow the 22 jury to conclude that Vorobeychik knowingly aided and abetted 23 Solomonyan in engaging in a business of dealing in firearms. 24 Transcripts of recorded telephone conversations reveal that 25

11Vorobeychik put Solomonyan in touch with McQueen after reassuring 1 Solomonyan that McQueen had been warned not to “be afraid of what 2 [Solomonyan’s] going to talk to [him] about.” Just a few minutes 3 later, Solomonyan told McQueen that he wanted “[t]rucks with 4 fully automatic transmission or small sport’s [sic] cars but 5 still with fully automatic transmissions” and clarified that “of 6 course I am not talking about vehicles.” Vorobeychik called 7 Solomonyan two weeks later to ask whether McQueen could “really 8 get it,” to which Solomonyan replied, “I only need two pieces.” 9 The following month, Vorobeychik and Solomonyan discussed a plan 10 to make “large income” by working directly with McQueen. Within 11 one month of this conversation, Solomonyan obtained three 12 firearms from McQueen. Viewing this evidence in its totality, 13 there were ample grounds for the jury to conclude that 14 Vorobeychik knowingly assisted Solomonyan in his firearms 15 trafficking scheme. The jury was certainly not bound as a matter 16 of law to believe that Vorobeychik and Solomonyan were talking 17 about two completely different things over the course of time. 18 The evidence was, therefore, sufficient to support Vorobeychik’s 19 conviction. 20 The evidence against Nadirashvili and Chvelidze was 21 sufficient to support their convictions as well. They argue 22 that, although they were aware Solomonyan was engaged in a single 23 gun transaction, the evidence did not show that they knew he was 24 engaged in the business of trafficking in firearms. The statute 25

12does suggest that Nadirashvili and Chvelidze had to know that 1 Solomonyan was engaged in more than just a single sale of 2 weapons, as it defines a person “engaged in the business” of 3 dealing in firearms as one who engages in “repetitivepurchase 4 and resale of firearms.” 18 U.S.C. § 921(a)(21)(C) (emphasis 5 added). However, the government’s burden under Section 6 922(a)(1)(A) is to “prove that the defendant ‘has guns on hand or 7 is ready and able to procure them for the purpose of selling them 8 from [time] to time to such persons as might be accepted as 9

customers.’” Carter, 801 F.2d at 82 (quoting United States v. 10 Berry, 644 F.2d 1034, 1037 (5th Cir. 1981)). Thus, the 11 government did not need to prove that Nadirashvili and Chvelidze 12 were aware that Solomonyan was actually engaged in multiple 13 transactions, but rather that they knew Solomonyan had held 14 himself “out as a source of firearms” and was ready to procure 15 them for his customers. Id

. 16 Applying this standard, there was sufficient evidence for 17 the jury to find that Nadirashvili and Chvelidze aided and 18 abetted Solomonyan in engaging in the business of dealing in 19 firearms. In their first recorded conversation, Solomonyan told 20 Nadirashvili that he had already received money from a customer 21 in exchange for his promise to deliver automatic weapons. 22 Moreover, Solomonyan explained to Nadirashvili that he had been 23 negotiating with a dealer and needed Nadirashvili’s help only 24 because the dealer disappeared at the last minute. Nadirashvili 25

13immediately relayed all the pertinent information to Chvelidze, 1 who said he could fill the order within several days, and invited 2 Nadirashvili to “place an order.” Nadirashvili and Chvelidze 3 each told Solomonyan directly that they would try to procure 4 firearms for him. Perhaps not every rational trier of fact would 5 conclude that Nadirashvili and Chvelidze knew Solomonyan was 6 engaged in anything more than a one-time transaction. However, 7 the applicable standard of review requires only that “any 8 rational trier of fact could have found the essential elements of 9 the crime beyond a reasonable doubt.” Hardwick, 523 F.3d at 100 10 (emphasis in original). Solomonyan’s statements to Nadirashvili 11 and Chvelidze demonstrated a familiarity with firearms and a 12 fluency in the coded language used to discuss them over the 13 phone. Solomonyan also suggested that he had contacts with a 14 dealer who actually had firearms in his possession. It would not 15 be unreasonable for a trier of fact to infer from these facts 16 that Nadirashvili and Chvelidze knew Solomonyan was not simply 17 filling a one-time order but was in fact holding himself out more 18 generally as a source of firearms. We therefore affirm their 19 convictions. 20 b) As-Applied Vagueness Challenge to 22 U.S.C. § 21 2778(b)(1)(A)(ii) 22 Kharabadze was convicted under Section 2778(b)(1)(A)(ii) of 23 conspiring to broker in foreign defense articles and aiding and 24 abetting Solomonyan and Spies in their commission of the 25

14substantive brokering offense. Section 2778(b)(1)(A)(ii) makes 1 it illegal to “engage[] in the business of brokering activities 2 with respect to the manufacture, export, import, or transfer of 3 any defense article.” The regulations define “broker” as “any 4 person who acts as an agent for others in negotiating or 5 arranging contracts, purchases, sales or transfers of defense 6 articles or defense services in return for a fee, commission, or 7 other consideration.” 22 C.F.R. § 129.2(a). “Brokering 8 activities” are defined to include “the financing, 9 transportation, freight forwarding, or taking of any other action 10 that facilitates the manufacture, export, or import [of] a 11 defense article.” Id.§ 129.2(b). The regulations also specify 12 that “engaging in the business of brokering activities requires 13 only one action as described above.” Id. 14 Kharabadze contends that his conviction should be vacated 15 because the phrase “the business of brokering activities” is 16 unconstitutionally vague as applied to him. Specifically, he 17 claims that the word “facilitates” is ambiguous and argues that 18 he could not have known that "merely . . . providing information 19 about the availability and prices of foreign defense articles" 20 fell within the statute. Kharabadze Br. at 28 (emphasis 21 omitted). 22 "‘[T]he void-for-vagueness doctrine requires that a penal 23 statute define the criminal offense with sufficient definiteness 24 that ordinary people can understand what conduct is prohibited 25

15and in a manner that does not encourage arbitrary and 1 discriminatory enforcement.'" United States v. Rybicki, 354 F.3d 2 124, 129 (2d Cir. 2003) (quoting Kolender v. Lawson, 461 U.S. 3 352, 357 (1983)). In an as-applied challenge, "one whose conduct 4 is clearly proscribed by the statute cannot successfully 5 challenge it for vagueness." United States v. Nadi, 996 F.2d 6 548, 550 (2d Cir. 1993). Regardless of whether there is 7 ambiguity at the outer reaches of Section 2778, Kharabadze’s 8 conduct falls clearly within its intended scope. He provided 9 Solomonyan with a list of estimated prices based on his knowledge 10 of the Russian market for military weapons, knowing that 11 Solomonyan needed the price list in order to negotiate with 12 purchasers who wanted to see "something real" or at least 13 "approximately real." Applying the usual meaning of the word, 14 this conduct unquestionably “facilitate[d]” Solomonyan’s import 15 of defense articles. We therefore reject Kharabadze’s 16 constitutional challenge to his conviction under Section 2778. 17 c) Offense Level Enhancements Under Section 2K2.1(b) of the 18 Sentencing Guidelines 19 Solomonyan argues that the district court's imposition of 20 two offense level increases -- one for conspiracy involving more 21 than 200 weapons pursuant to U.S.S.G. § 2K2.1(b)(1)(E) and the 22 other for conspiracy involving a destructive device pursuant to 23 U.S.S.G. § 2K2.1(b)(3)(A) -- was erroneous because the court 24 found the requisite facts only by a preponderance of the evidence 25

16rather than with reasonable certainty. We agree. 1 Section 2X1.1(a) of the Federal Sentencing Guidelines states 2 that where a conspiracy is not covered by a specific offense 3 guideline, the base offense level is "[t]he base offense level 4 from the guideline for the substantive offense, plus any 5 adjustments from such guideline for any intended offense conduct 6 that can be established with reasonable certainty." (emphasis 7 added). Consequently, the district court correctly looked to 8 Section 2K2.1(a)(4)(B) to set the base offense level at 20 9 because the offense involved possession and transport of a 10 machine gun and was committed while Solomonyan was an illegal 11 alien. However, the offense level adjustments listed in Section 12 2K2.1(b) make no mention of a conspiracy. The district court, 13 therefore, should have reverted to the reasonable certainty 14 standard described in Section 2X1.1(a) when it applied the two 15 offense level increases under Section 2K2.1(b)(1)(E) and 16 (b)(3)(A). SeeUnited States v. Savarese, 404 F.3d 651, 655-56 17 (2d Cir. 2005). We therefore vacate Solomonyan’s sentence and 18 remand for the district court to make that determination in the 19 first instance. Id.; see18 U.S.C. § 3742(f)(1) (“If the court 20 of appeals determines that . . . the sentence was imposed in 21 violation of law or imposed as a result of an incorrect 22 application of the sentencing guidelines, the court shall remand 23 the case for further sentencing proceedings with such 24 instructions as the court considers appropriate.”). On remand, 25

17the district court is instructed to recalculate Solomonyan’s 1 offense level for the conspiracy convictions, applying the 2 reasonable certainty standard to any facts underlying the offense 3 level adjustments listed in Section 2K2.1(b). 4

CONCLUSION 5 For the foregoing reasons, we vacate Solomonyan’s sentence 6 and remand to the district court for resentencing in accordance 7 with this opinion. We have considered all the arguments advanced 8 by appellants that are not expressly discussed in this opinion 9 and find them meritless. We affirm the remainder of the 10 convictions and sentences. 11

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