
    UNITED STATES of America, Appellee, v. Aleksey BREYNIN, Defendant-Appellant.
    No. 13-2204.
    United States Court of Appeals, Second Circuit.
    April 23, 2014.
    Amy Busa and Amanda Hector, Assistant United States, Attorneys, Of Counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
    Colleen P. Cassidy, Of Counsel, Federal Defenders of New York, Inc., New York, NY, for Appellant.
    PRESENT: DENNIS JACOBS, GUIDO CALABEESI, DEBRA ANN LIVINGSTON, Circuit Judges.
   SUMMARY ORDER

Aleksey Breynin appeals from a judgment of conviction entered on June 24, 2013, sentencing him chiefly to 24 months’ imprisonment. He primarily challenges the district court’s imposition of certain sentencing enhancements. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

On January 3, 2012, Breynin pleaded guilty to one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, for his involvement in a multi-year scheme in which he and co-conspirators in Eastern Europe used account information stolen from credit card holders in the United States to purchase merchandise that was ultimately shipped to various locations in Eastern Europe.

At sentencing, the district court accepted the Government’s request for two two-level enhancements to Breynin’s U.S. Sentencing Guidelines base offense level of 16, finding that Breynin’s offense involved “trafficking of any unauthorized access devices,” U.S.S.G. § 2B1.1(b)(11)(B)(I), and that “a substantial part of the scheme was committed outside of the United States,” U.S.S.G. § 2B1.1(b)(10)(B). Consequently, Breynin’s total offense level was 20 and his Guidelines range was 33 to 41 months’ imprisonment. Absent these enhancements, the Guidelines range would have been 21 to 27 months.

Breynin claims that these enhancements were imposed in error. Of particular importance to this appeal is whether the purchase of credit card numbers, without more, can be considered “trafficking” in access devices within the meaning of U.S.S.G. § 2B1.1 (b)(11)(B)(i). Resolution of this close question would require us to make new law, which we are reluctant to do unless it would likely make a difference in Breynin’s ultimate sentence. See United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (“Where we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.”).

The district court acknowledged that the application of the contested enhancements was a “close call,” Tr. of Sentencing, at 60, May 29, 2013, but indicated that it was inclined to impose a 24-month sentence regardless of whether the enhancements applied. See id. at 61 (“I think I’d end up giving the same sentence no matter how the [G]uidelines came out in this case.”). Accordingly, we remand the case pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), to solicit the district court’s view as to whether it is confident that it would impose the same sentence regardless of the disputed enhancements. The district court may also conduct such further sentencing proceedings as it deems appropriate.

The panel retains jurisdiction to hear Breynin’s appeal once the district court has responded. We respectfully invite the district court to act with celerity, at the latest within seventy-five calendar days of the date of this decision.

For the foregoing reasons, we hereby REMAND the case to the district court. After the district court has made its determination, either party may restore jurisdiction to this Court by filing with the Clerk a letter (along with a copy of the relevant order or transcript) advising the Clerk that jurisdiction should be restored. The returned appeal will be assigned to this panel and an additional notice of appeal will not be needed.  