The opinion of the court was delivered by: Winter, Circuit Judge:
United States v. Nadirashvili (Solomonyan)
Before: WINTER, POOLER, and HALL, Circuit Judges.
35 Appeals by six defendants from a conviction after a jury 36 trial in the United States District Court for the Southern 1 1 District of New York (Richard J. Holwell, Judge) for a variety of 2 weapons trafficking offenses. Appellants challenge, inter alia, 3 the sufficiency of the evidence underlying their convictions, the 4 constitutionality of 22 U.S.C. § 2778(b)(1)(A)(ii) as applied to 5 one appellant, and the district court's Sentencing Guidelines 6 calculation for another appellant. We find that the district 7 court used the wrong standard in applying certain offense level 8 enhancements under Section 2K2.1(b) of the Federal Sentencing 9 Guidelines during one appellant's offense level calculation. We 10 therefore vacate that appellant's sentence and remand for 11 resentencing. We affirm in all other respects.
11 Nikolai Nadirashvili, Levan Chvelidze, Dimitriy Vorobeychik, 12 Ioseb Kharabadze, Christiaan Dewet Spies, and Artur Solomonyan 13 appeal from their convictions after a jury trial before Judge 14 Holwell. Appellants were convicted of a variety of weapons 15 trafficking offenses, described in greater detail below. These 16 appeals followed.
17 We address three of the many issues raised by appellants, 18 finding, after due consideration, their remaining arguments to 19 lack merit. We hold that the evidence was sufficient to support 20 all of the convictions and reject a vagueness-as-applied argument 21 raised by Kharabadze. However, the district court employed the 22 wrong standard of proof at sentencing in imposing increases to 23 Solomonyan's base offense level under Section 2K2.1(b)(1)(E) and 24 (b)(3)(A) of the Federal Sentencing Guidelines. We therefore 25 vacate Solomonyan's sentence and remand for resentencing. 26 Otherwise, we affirm.
29 Because this is an appeal from a jury trial, we briefly 3 1 describe the evidence in the light most favorable to the 2 government. See United States v. Gomez, 580 F.3d 94, 97 (2d Cir. 3 2009).
4 From February 2004 until March 2005, the government 5 conducted an investigation into a suspected weapons trafficking 6 ring with the aid of confidential source Kelly Davis. Davis 7 posed as a middleman for buyers of firearms and explosives while 8 cooperating with the government. Upon the government's 9 direction, David resumed prior conversations with Spies about 10 Spies' efforts to obtain something "Russian made" for Davis. 11 Spies put Davis in touch with Solomonyan, who in turn contacted 12 Kharabadze. Using court-authorized wiretaps, the government 13 recorded calls between Solomonyan and Kharabadze in which 14 Kharabadze said, "[e]verything has been put on hold" because 15 "government forces . . . relocated [to the Russian side] and 16 there's no making a deal with them." Solomonyan reported back to 17 Spies about the "obstacles." A few days later, however, 18 Solomonyan told Spies he was dealing with "very serious people" 19 and that the deal was "ninety-nine point nine percent." 20 In May 2004, Davis, Spies, and Solomonyan discussed how to 21 obtain and ship "grenades," "warheads," "missiles," and 22 "launchers," and Solomonyan repeatedly asked Davis to create an 23 order list. The following month, Solomonyan asked Kharabadze to 24 create a price list because he "ha[d] to show [the buyer] 25 something real." Kharabadze agreed to create the list and told 4 1 Solomonyan he could pick it up the following morning. The next 2 day, before leaving to attend a meeting with Davis and Spies, 3 Solomonyan visited Kharabadze's apartment building for 4 approximately an hour. At the meeting with Davis and Spies, 5 Solomonyan wrote something on a piece of paper, handed it to 6 Davis, and told him to memorize it. In addition to discussing 7 the weapons on the list, Solomonyan also told Davis that he had 8 "overstayed" his visa and asked whether Davis could help. The 9 meeting was resumed two days later, when the three discussed 10 weapons, dimensions, shipping options, and prices in some detail. 11 Later that month, Solomonyan spoke over the phone with a man 12 named Artur Barseghyan about "exercises taking place [in 13 Leninakan, Armenia]" in which "everything that Georgia owned was 14 dumped there. And it's being actively taken out of there." Six 15 months later, in December 2004, Solomonyan spoke to Armen 16 Baregamyan, who was in Azerbaijan, about "merchandise" that would 17 go from Leninakan to Georgia to the United States. In January 18 2005, Davis, at the direction of the FBI, told Solomonyan and 19 Spies that he was "under a lot of pressure" and that the "time 20 limit is two weeks." He also said that he had green cards for 21 Solomonyan and Spies, but could not deliver them until he got the 22 "products."
23 Over the following two weeks, Solomonyan made contact with a 24 man in Armenia and managed to obtain digital photographs by email 25 of various weapons that were allegedly available, including a 5 1 mortar launcher, anti-tank gun, and several missile launchers. 2 At a meeting in March 2005, Solomonyan showed these photos to 3 Davis, and the FBI arrested Solomonyan and Spies.
4 As the events above were unfolding, the government 5 instructed Davis to also try to obtain machine guns and 6 semi-automatic rifles already in the United States. In July 7 2004, Solomonyan and Spies spoke about buying new and used 8 "apartments," which the government contended was code for machine 9 guns. On September 11, 2004, Davis gave money to Solomonyan to 10 purchase guns. The same day, Solomonyan called Nadirashvili to 11 ask whether Nadirashvili knew where he could purchase "cars . . 12 with automatic transmission[s]." Solomonyan explained that he 13 had "been talking to a dealer for a week now" and that a "man 14 came today, gave me the money," but that the dealer had vanished 15 at the last minute. Nadirashvili said, "I understand what you 16 are talking about," and told Solomonyan he would call Chvelidze 17 to see if he could arrange anything. Nadirashvili immediately 18 called Chvelidze. After some initial confusion during which time 19 Chvelidze thought Nadirashvili was talking about actual cars, 20 Chvelidze caught on and told Nadirashvili that he could not get 21 them that day, but to "[t]ell me if you want to place an order or 22 something." Nadirashvili relayed this information to Solomonyan. 23 Solomonyan called Chvelidze the following day to verify that 24 Nadirashvili "told [Chvelidze] about the cars." Chvelidze 25 confirmed this, and said he would try to help. Solomonyan also 6 1 spoke to Nadirashvili again, who said he would "walk around 2 Brighton" to "see if there's anything there." Neither 3 Nadirashvili nor Chvelidze ultimately obtained any firearms for 4 Solomonyan.
5 Solomonyan also spoke with Vorobeychik on September 12. 6 Vorobeychik informed Solomonyan that he had told a third party, 7 "[Solomonyan] will call you. Don't be afraid of what he's going 8 to talk to you about." Solomonyan said, "I'll call him now," and 9 immediately placed a phone call to Allah McQueen. There was some 10 confusion while Solomonyan tried to get McQueen to understand 11 what he meant by "big trucks with . . . fully automatic 12 transmission." However, after Solomonyan said, "Listen, of 13 course I am not talking about vehicles," McQueen said he 14 understood what they were talking about. Over the next week, 15 Solomonyan and McQueen had a number of phone conversations in 16 which they spoke about setting up a deal involving "dogs," 17 "puppies," an "AK," "dog food," and "an Israeli," which the 18 government argued was code. On September 30, Vorobeychik asked 19 Solomonyan, "[c]an they really get it?" and Solomonyan responded, 20 "Well, I only need two pieces." Vorobeychik later told law 21 enforcement agents that "they" referred to McQueen. In a 22 conversation in October, Vorobeychik and ...