Argued: May 14, 2013
Appeal from a judgment of the United States District Court for the Eastern District of New York (Cogan, J.) resentencing defendant-appellant for retaining classified documents without authorization in violation of 18 U.S.C. § 793(e). The district court engaged in a de novo resentencing. Because we conclude that our prior mandate remanded the case for limited and not de novo resentencing, we remand, again, for resentencing.
Daniel S. Silver, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.
James I. Glasser, Wiggin and Dana LLP, New Haven, Connecticut, for Defendant-Appellant.
Before: Chin and Lohier, Circuit Judges, and K, District Judge. [*]
This is the second appeal by defendant-appellant Noureddine Malki from a sentence imposed by the district court for retaining classified documents without authorization in violation of 18 U.S.C. § 793(e). In the first appeal, we vacated Malki's sentence and remanded for resentencing. The issue presented in this appeal is whether the case was remanded for a limited or a de novo resentencing. The district court, on remand, engaged in a de novo resentencing. We conclude that this was error, and thus we remand, again, for resentencing.
A. The Guilty Plea and Sentencing
Between 2003 and 2005, Malki, a civilian translator, worked with U.S. military personnel in Iraq. After two separate tours of duty, Malki was found in possession of four classified documents, despite having previously affirmed that he did "not have in [his] possession or control any documents or material of a classified nature." Malki knew that these documents were in his possession, but he made no effort to return them.
In 2008, he was convicted following a guilty plea of retaining classified documents without authorization in violation of 18 U.S.C. § 793(e). At sentencing, several issues were raised. One question was whether Malki should receive a two-level enhancement for abuse of a position of trust under section 3B1.3 of the U.S. Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). The district court (Korman, J.) indicated that it was inclined to follow the Probation Department's recommendation that the enhancement not apply:
THE COURT: So I am inclined to accept
[Probation]'s recommendation as to the guideline calculation but if [the government] ...