Appeal from the May 23, 2008, judgment of the United States District Court for the Eastern District of New York (Edward Korman, District Judge), sentencing the Defendant-Appellant to an aggregate sentence of 121 months after his pleas of guilty to offenses including violations of 18 U.S.C. § 793(e), punishing improper use of national defense information. Malki challenges the selection of section 2M3.2 as the applicable sentencing guideline, rather than section 2M3.3.
Remanded for resentencing.
The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
Before: NEWMAN, RAGGI, and HALL, Circuit Judges.
This appeal primarily concerns the rarely litigated issue of the appropriate sentencing guideline, under the United States Sentencing Guidelines ("the Guidelines") for violations of 18 U.S.C. § 793(e), which punishes, among other things, unauthorized possession and willful retention of various documents relating to national defense. The issue arises on an appeal by Noureddine Malki from the May 23, 2008, judgment of conviction of the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) after pleading guilty to seven offenses charged in two separate indictments. The District Court imposed an aggregate sentence of 121 months. On appeal, Malki principally challenges the determination of the applicable guideline for the section 793(e) offenses, contending that section 2M3.3 of the Guidelines, rather than section 2M3.2, should have been used for the initial calculation. We agree, and therefore remand for resentencing.
Background The offenses. The Defendant arrived illegally in the United States in 1978 and obtained political asylum in 1989, using a false identity and a fabricated story of persecution. He was granted permanent resident status in 1993 and in 2000 was naturalized as a United States citizen under the name "Almaliki Nour," having provided false information of his name, birth date, and national origin. In 2003 Malki was hired as an interpreter for the contracting company, Titan, and was assigned to provide translation services for military intelligence personnel in the 82nd Airborne Division of the United States Army in Iraq. He was stationed at Al Taqqadam Air Base ("TQ"), which is located in Al Anbar province in an area west of Baghdad in the "Sunni Triangle." In obtaining security clearance for his position, Malki again provided false information about his background. He gained access to classified information in his position at Titan but was not permitted to possess classified information and was advised that he could only view such information after receiving specific authorization on a "need to know" basis. On a second tour in Iraq in 2004, Malki again provided translation services to United States army intelligence personnel.
At the end of his second tour, Malki was questioned by agents for the FBI and the Department of Defense to determine whether he should continue to have access to classified material. He reiterated the false information he had previously provided on other occasions regarding his fictitious name, national origin, and family background. At this time, Malki also gave consent to search his apartment in Brooklyn, New York, where the FBI recovered classified material from the 82nd Airborne Division at TQ, three documents and a fourth document contained on a CD-ROM.
Upon returning to New York, he was interviewed by FBI agents and admitted that he had assumed a false identity in order to obtain political asylum and later United States citizenship and that he was in fact a Moroccan national named Noureddine Malki. Malki was arrested in October 2005.
The charges. Malki pled guilty to three offenses charged in an initial indictment: two counts of making material false representations to the executive branch of the United States government, in violation of 18 U.S.C. § 1001(a)(2), and one count of falsely procuring American citizenship, in violation of 18 U.S.C. § 1425(a). He also pled guilty to four counts of a second indictment charging that "having unauthorized possession of a document relating to the national defense," he "knowingly and willfully retained" the document and "failed to deliver it to the officer and employee of the United States entitled to receive it," in violation of 18 U.S.C. § 793(e). Each of these four counts concerns a different document. These offenses were based on the classified documents recovered at Malki's apartment.
Sentencing. Malki's amended presentence report ("PSR") combined sentencing recommendations for the offenses in both indictments. For the false statement counts in the first indictment, Malki's base offense level was 6, and the PSR recommended a 2-level enhancement for obstruction of justice. For the third count of falsely procuring United States citizenship, Malki's base offense level was 8 with a 4-level enhancement for fraudulently obtaining an American passport and a 2-level enhancement for obstruction of justice. Malki's adjusted offense level for the three offenses charged in the first indictment was 14, pursuant to applicable grouping rules, see U.S.S.G. §§ 3D1.1-.5
With respect to the four violations of section 793(e), the PSR used section 2M3.2 of the Guidelines, entitled "Gathering National Defense Information." Section 2M3.2 provides a base offense level of 30 for non-top secret information, such as the documents in Malki's possession. The PSR recommended a 2-level enhancement for abuse of trust, see id. § 3B1.3, and another 2-level enhancement for obstruction of justice, see id. § 3C1.1, and denial of a reduction for acceptance of responsibility, see id. § 3E1.1, resulting in an adjusted offense level of 34. The four counts for violating section 793(e), which were grouped with each other, could not be grouped with the three counts of the first indictment, but because level 14, applicable to the first indictment counts, was more than 9 levels less serious than level 34, applicable to the second indictment counts, the total adjusted offense level remained 34 for all seven counts. See U.S.S.G. § 3D1.4(c).
Malki objected to the Probation Department's use of section 2M3.2 to calculate his sentencing range for the section 793(e) offenses, contending that this guideline applies only to the offense of "gathering national defense information," U.S.S.G. § 2M3.2 (emphasis added). In an addendum to the PSR, the Probation Department responded that use of section 2M3.2 was proper since there was evidence that Malki had "actively gathered" the classified information even though he pleaded only to unauthorized retention of such information. At sentencing, the District Court concluded that the PSR's recommended adjusted offense level calculated pursuant to section 2M3.2 was appropriate and accepted all aspects of the PSR except the recommended 2-level enhancement for abuse of trust. With a total adjusted offense level of 32, Malki's Guidelines sentencing range was 121 to 151 months. Endeavoring to impose an aggregate sentence at the bottom of the applicable Guidelines sentencing range, Judge Korman imposed concurrent sentences of 12 months for the counts in the first indictment and concurrent sentences of 109 months for the counts in the second indictment, with the sentences for the second indictment counts to run consecutively to those for the first indictment.*fn1 The aggregate sentence was thus 121 months.
Judge Korman initially explained the sentence as follows:
Well, let me start off with I think the guideline range as applied to this defendant is a reasonable one that reflects almost all of the factors set out in [section] 3553(a), both in terms of the seriousness of the offense and the need to deter ...