United States v. Malki

U.S. COURT OF APPEALS, SECOND CIRCUIT
Criminal Practice

New York Law Journal

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Per Curiam

Malki, a civilian translator working with U.S. military personnel in Iraq, was found in possession of classified documents. In 2008 he pleaded guilty to unauthorized retention of classified documents. Finding that he deliberately gathered the documents, district court applied Sentencing Guidelines §2M3.2, calculated a sentencing range of 121 to 151 months, and sentenced Malki to 121 months in prison. Second Circuit remanded, concluding that because he had not been charged with "gathering" classified information, his Guidelines range should have been calculated under 2M3.3, a provision applicable to retaining classified information. Concluding that the circuit's mandate contemplated de novo review, district court found a two-level enhancement for abuse of trust applied. After calculating Malki's Guidelines range to be 78 to 97 months imprisonment, it sentenced him to 108 months. Second Circuit again remanded for resentencing. Its prior mandate remanded Malki's case for limited, not de novo, resentencing. The prior remand mandate identified only the specific error to be corrected. Thus district court erred procedurally—by adding a two-point offense level enhancement for abuse of a position of trust—when it resentenced Malki.

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