United States v. Malki, No. 08-4417-cr (2d Cir. June 29, 2010) (Newman, Raggi, Hall, CJJ)
In this rare choice-of-guideline appeal, the circuit vacated the sentence and remanded for resentencing under a different guideline.
Defendant Malki entered the United States illegally in 1978. He eventually obtained political asylum, permanent residence status and United States citizenship, but all under a false identity. In 2003, still using this false identity, he took a job as a translator for a military contractor in Iraq and gave false background information to obtain a security clearance. In connection with this work, Malki had access to classified information, but was not permitted to possess it. Eventually, in connection with a security review, classified documents were found in his apartment, and Malki, when confronted, admitted his false identity.
He ended up pleading guilty to making false statements and naturalization fraud, as well as to four counts of having “knowingly and willfully retained” documents relating to the national defense, in violation of 18 U.S.C. § 793(e). For these counts, the district court, over objection, applied U.S.S.G. § 2M3.2, which covers “Gathering National Defense Information,” and sentenced Malki to 121 months’ imprisonment, the bottom of the range under that Guideline.
On appeal, the circuit agreed that the district court should have sentenced Malki under U.S.S.G. § 2M3.3, which covers, inter alia, “Unauthorized Receipt of Classified Information.” Malki’s indictment did not charge him with “gathering” the classified information, it charged him with “retaining” it. And, since the conduct of “retaining” is similar to “unauthorized receipt” and significantly different from “gathering,” § 2M3.3 is the right guideline in Malki’s case. While it is true that Malki’s relevant conduct included actively gathering the classified material, only the charged conduct, and not the relevant conduct, can be the basis for choosing the offense conduct guideline.
The court also rejected the argument that the error was harmless because the district judge expressly stated that the 121-month sentence was “a reasonable one” and “anything less would be inappropriate.” The judge made that comment in the context of explaining his decision to impose sentence within the guideline range; the circuit could not “be confident that he would have imposed the same sentence had he understood that the bottom of the correct guideline was 58 months less than the bottom of the guideline he thought was applicable.”