                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2009

USA v. Aquino
Precedential or Non-Precedential: Precedential

Docket No. 07-3202




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                                            PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                         No. 07-3202


               UNITED STATES OF AMERICA

                               v.

                  MICHAEL RAY AQUINO,
                                Appellant


    APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF NEW JERSEY
                   (D.C. Crim. No. 05-cr-00719)
         District Judge: The Honorable William H. Walls


                 Argued: November 21, 2008


         Before: BARRY, CHAGARES, Circuit Judges,
                   and RESTANI,* Judge

                (Opinion Filed:February 6, 2009)


Mark A. Berman, Esq. (Argued)
Hartmann, Doherty, Rosa & Berman
126 State Street
First Floor
Hackensack, NJ 07601-0000
Counsel for Appellant


*
   Honorable Jane A. Restani, Chief Judge, United States Court
of International Trade, sitting by designation.
Steven G. Sanders, Esq. (Argued)
George S. Leone, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000

Counsel for Appellee




                  OPINION OF THE COURT


BARRY, Circuit Judge

        Michael Ray Aquino, a Philippine national, received
classified documents relating to the national defense of the United
States from a source with access to a restricted government
database. He was indicted, and pled guilty to the unauthorized
possession and willful retention of two classified documents
relating to the national defense pursuant to 18 U.S.C. § 793(e).1
His challenge on appeal relates solely to the sentence he received.

      18 U.S.C. § 793(e) is punishable under two sections of the
United States Sentencing Guidelines, § 2M3.2 2 and § 2M3.3.3 The


       1
         By the terms of the Plea Agreement, the parties stipulated
to the application of the November 1, 2004 Guidelines Manual.
       2
        § 2M3.2. Gathering National Defense Information
      (a) Base Offense Level:
             (1) 35, if top secret information was gathered; or
             (2) 30, otherwise.
U.S. Sentencing Guidelines Manual § 2M3.2 (Nov. 2004).
       3
         § 2M3.3. Transmitting National Defense Information;
Disclosure of Classified Cryptographic Information; Unauthorized
Disclosure to a Foreign Government or a Communist Organization
of Classified Information by Government Employee; Unauthorized

                                2
District Court applied § 2M3.2, a more severe offense category
than § 2M3.3, primarily because the Court found that Aquino acted
with a specific state of mind: he had reason to believe that the
documents “could be used to the injury of the United States or to
the advantage of any foreign nation,” as set forth in 18 U.S.C. §
793(e). Aquino contends that the Court erred in applying § 2M3.2
because it disregarded the plain language of the applicable
guideline sections. The government contends that Aquino’s
offense was properly addressed pursuant to § 2M3.2. We will
vacate the judgment of sentence and remand for resentencing.

                                 I.

        Aquino arrived in the United States in 2001 on a non-
immigrant visa that is now expired. He was formerly a high-
ranking officer in the Philippine National Police (PNP) and came
to this country ostensibly to escape the threat of prosecution for
several violent acts he allegedly committed during his PNP tenure.
He has maintained strong ties to several political opposition leaders
in the Philippines. In 2002, he became acquainted with Leandro
Aragoncillo, a Philippine emigree and naturalized United States
citizen, who, as a former Marine, had been assigned to work in the
Office of the Vice President of the United States. Later,
Aragoncillo became an intelligence analyst with the FBI at the Fort
Monmouth Information Technology Center. In late 2004 and
throughout 2005, Aragoncillo forwarded to a number of current
and former Philippine officials, including Aquino, classified and/or
sensitive information pertaining to the current Philippine regime,
United States military strategy and training methods, and ongoing
criminal investigations.

       On September 10, 2005, the government executed search
and arrest warrants at the homes of both Aquino and Aragoncillo,



Receipt of Classified Information
      (a) Base Offense Level:
             (1) 29, if top secret information; or
             (2) 24, otherwise.
U.S.S.G. § 2M3.3.

                                 3
and seized computers and documents. Aquino was initially
indicted on two charges: conspiracy (Count One) in violation of 18
U.S.C. § 371; and acting as a foreign agent (Count Two) in
violation of 18 U.S.C. §§ 951 and 2. The government agreed to
dismiss the Indictment in exchange for Aquino’s plea to a lesser
charge under 18 U.S.C. § 793(e), which prohibits, inter alia, the
willful transmission, communication, or retention of documents
relating to the national defense of the United States by an
unauthorized possessor. The Superseding Information specified
that Aquino was being charged with the possession of two
documents.

        At the plea hearing, Aquino pled guilty to the possession of
the identified documents, documents he knew were classified and
had reason to believe could be used to injure the United States or
aid a foreign government. He further acknowledged that he
willfully and knowingly retained and failed to deliver these
documents to the officer and/or employee of the United States
entitled to receive them.

       The District Court ordered briefing and heard extensive
argument at the sentencing hearing on the applicability of one or
the other of the relevant guideline sections—§ 2M3.2 and § 2M3.3.
Counsel for Aquino argued that, under the plain language of the
guideline sections at issue and their background commentary, his
conduct—the retention of tangible, classified information—was not
punishable under § 2M3.2, the guideline with the higher offense
level. The government argued that, because Aquino admitted that
he knew the documents could be used to injure the United States or
to the advantage of a foreign nation, his conduct was more
appropriately addressed under § 2M3.2. The Court agreed with the
government, holding that § 2M3.2

       applies because of, in my opinion, the requisite
       inclusion in the crime of the reason to believe that
       such information, such tangible information, that is
       to say documents in this matter, could be used to the
       injury of the United States or to the advantage of any
       foreign nation as admitted and pled to by the
       defendant in this case.

                                 4
(App. 104.) The Court applied the base offense level of 30,
granted a three-level reduction for acceptance of responsibility
pursuant to § 3E1.1(a) and (b), and rejected the parties’ other
requests for adjustments. With a total offense level of 27 and a
criminal history category of I, the sentencing range computed to 70
to 87 months. Aquino was sentenced to 76 months imprisonment.4

                                 II.

        When reviewing a sentence, an appellate court must ensure
that the district court “committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range . . . .” Gall v. United States, --- U.S. ----, 128 S.
Ct. 586, 597 (2007). We review the District Court’s interpretation
of the Sentencing Guidelines de novo, United States v. Pojilenko,
416 F.3d 243, 246 (3d Cir. 2005), and scrutinize any findings of
fact for clear error, United States v. Wise, 515 F.3d 207, 217 (3d
Cir. 2008).5

                                 III.

      The sentence imposed by the District Court was predicated
on an understandable, albeit mistaken, misinterpretation of the


       4
         The government asked the District Court to make an
alternate finding that, if § 2M3.2 was not the correct guideline, the
Court would have departed upwards to a base offense level of 30.
The Court declined to do so, acknowledging that, if it was wrong
about the selection of the guideline section, the sentence would
have been different.
       5
          The government correctly states that the appropriate
standard when reviewing a district court’s application of law to fact
is “due deference.” See United States v. Tupone, 442 F.3d 145, 149
(3d Cir. 2006) (“We review the District Court’s application of the
Guidelines to facts for abuse of discretion.”) (citing Buford v.
United States, 532 U.S. 59, 63-66 (2001)). That, however, is not
this case. Where, as here, what we review is a district court’s
interpretation of the guidelines and not an application of law to
fact, our review is plenary.

                                  5
applicable guideline sections caused in large measure by the
imprecise and thus unfortunate drafting of the relevant statute and
those guideline sections. As a result, the issue before us, as it was
before the District Court, is both close and difficult, and we
applaud the care and attention given to it by that Court. If, as we
decide the issue, we err, it will be because we are attempting a
literal, textual application of the law where both the relevant statute
and the relevant guideline sections are anything but clear.6

       The issue presented—whether § 2M3.2, rather than §
2M3.3, is the applicable guideline section for a defendant who has
pleaded guilty to the willful retention of documents containing
national defense information that he has reason to believe could be
used to the injury of the United States or the advantage of a foreign
nation, a violation of 18 U.S.C. § 793(e)—has not been addressed
by any federal court aside from the District Court in this case. That
issue calls for careful consideration of both the specific guideline
sections that address violations of § 793(e), and the general
guideline provisions that steer our determination of the appropriate
sentencing range.

       There is a sequence for constructing an appropriate
guideline sentence, the first two steps of which are relevant to the
present appeal. First, a district court must determine the applicable
offense guideline section in Chapter Two (Offense Conduct) by
reference to the Statutory Index. See U.S.S.G. §§ 1B1.1(a),
1B1.2(a) & App. A. The commentary to § 1B1.2 states that where
the Statutory Index specifies more than one offense guideline for
a particular statute, the court must “determine which of the
referenced guideline sections is most appropriate for the offense
conduct charged in the count of which the defendant was
convicted.” Id. § 1B1.2, cmt. n.1. Next, the court determines the
base offense level and applies appropriate specific offense
characteristics, cross-references, and special adjustments. See id.
§ 1B1.1(b) & 1B1.3. At this stage, the court can factor in relevant



       6
         See United States v. Rosen, 445 F.Supp.2d 602, 613 n.7
(E.D. Va. 2006) (collecting sources criticizing the drafting of 18
U.S.C. § 793).

                                  6
conduct7 , unless the guidelines otherwise specify. Id. § 1B1.3(a);
see Watterson v. United States, 219 F.3d 232, 236 (3d Cir. 2000).

Step One

       At Step One, the District Court was obliged to choose the
appropriate Chapter Two guideline section based on the conduct
underlying Aquino’s conviction. The Statutory Index specifies two
related guideline sections for violations of 18 U.S.C. § 793(e): §
2M3.2 and § 2M3.3. Due to the imprecise drafting referenced
above, neither section expressly covers “retention,” one of several
culpable conduct elements of a § 793(e) offense and the specific
conduct to which Aquino pleaded guilty.

       Section 2M3.2, with its higher base offense level, covers
statutes that “proscribe diverse forms of obtaining and transmitting
national defense information.” U.S.S.G. § 2M3.2 & cmt.
background; see also infra note 10. It also carries a mens rea
requirement: the defendant must commit the offense “with intent
or reason to believe the information would injure the United States
or be used to the advantage of a foreign government.” Id.

       Section 2M3.3, meanwhile, applies to a diverse range of
statutes that proscribe various offenses involving the transmission
or communication of national defense information and the
disclosure or receipt of classified information. The several clauses



       7
        “Relevant conduct” is broadly defined to include:
      all acts and omissions committed, aided, abetted,
      counseled, commanded, induced, procured, or
      willfully caused by the defendant . . . that occurred
      during the commission of the offense of conviction,
      in preparation for that offense, or in the course of
      attempting to avoid detection or responsibility for
      that offense; . . . all harm that resulted from [those]
      acts and omissions . . . , and all harm that was the
      object of such acts and omissions; and any other
      information specified in the applicable guideline.
U.S.S.G. § 1B1.3(a).

                                 7
in the title to § 2M3.3 appear to correspond to these statutes in the
order in which they are enumerated under the “Statutory
Provisions” commentary heading.8 Thus, the first title clause,
“Transmitting National Defense Information,” clearly refers to the
first provision listed in the “Statutory Provisions” subsection: 18
U.S.C. § 793(d), (e), and (g). It is also clear that violations of the
various § 793 subsections are treated in the first paragraph of the
background commentary to § 2M3.3.9 Critically, in the second
sentence of this paragraph, the commentary reiterates the mens rea
distinction contained in § 793(e)—namely, that only offenses
involving intangible information carry the mens rea requirement.
See U.S.S.G. § 2M3.3, cmt. background. It is undisputed that the
offense at issue here involved tangible information only.

       The District Court relied primarily on the mens rea
distinction in concluding that Aquino should be sentenced in
accordance with § 2M3.2. The Court observed that Aquino
admitted that the two documents found in his possession could be
used to injure the United States or to the advantage of a foreign
nation, and reasoned that punishment at the higher level better
reflected “the policy behind the implementation of the statutes with
regard to their offenses.” (App. 105.) Thus, it appears that the
Court believed that the Sentencing Commission sought to punish
offenses which bore a mens rea requirement more severely than
offenses which did not.



       8
           Aquino submits that his conduct is encompassed by the
final title clause of § 2M3.3, the “unauthorized receipt of classified
information.” U.S.S.G. § 2M3.3. We disagree. The title clause is
clearly a reference to another statute punishable under §
2M3.3—50 U.S.C. § 783(b) and (c). As Aquino was not charged
with a violation of this statute, the presence of this clause in the
title to § 2M3.3 has no bearing on his sentencing.
       9
        In drafting this paragraph, the Sentencing Commission
incorporated language directly from 18 U.S.C. § 793(d) and (e),
including the list of tangible formats in which national defense
information might be found. See U.S.S.G. § 2M3.3, cmt.
background.

                                  8
       While the Sentencing Commission certainly could have
distinguished the guidelines applicable to § 793(e) offenses in this
fashion, there is no textual support that it actually did so. The
District Court’s reading elevates one relevant consideration (mens
rea) over another (conduct). Critically, Aquino did not plead to
conduct punishable under § 2M3.2; instead, he pleaded only to
passive conduct—retention—which is addressed in neither section.

       In an attempt to square Aquino’s conduct with § 2M3.2, the
government contends that Aquino “obtained” documents from
Aragoncillo. We disagree for two reasons, with the important
proviso that we may consider only offense of conviction conduct,
not all relevant conduct, at Step One. See U.S.S.G. § 1B1.2(a)
(“Determine the offense guideline section in Chapter Two (Offense
Conduct) applicable to the offense of conviction (i.e., the offense
conduct charged in the count of the indictment or information of
which the defendant was convicted).”); see also United States v.
Pressler, 256 F.3d 144, 157 n.7 (3d Cir. 2001) (concluding that the
phrase “‘offense of conviction’ includes only the substantive crime
for which a particular defendant was convicted”).

       First, Aquino never admitted—at least in so many
words—that he “obtained” the documents found in his possession.
He pleaded to a Superseding Information that charged only that he
“knowingly and willfully retain[ed] and fail[ed] to deliver such
documents.” (App. 24-25.) During the plea colloquy, the District
Court did not ask Aquino whether he had “obtained” the
documents, nor is such a connotation discernable by context.
According to Webster’s, “to obtain” means “to gain or attain
possession or disposal of usu[ally] by some planned action or
method.” Webster’s Third New International Dictionary 1559
(1993). This has an active connotation. At his sentencing hearing,
Aquino answered in the affirmative when asked whether he had
“receiv[ed]” documents (App. 44) that Aragoncillo “was
providing” (App. 45) or “transmit[ting]” (App. 46). At no point
was “planned action or method” on Aquino’s part even suggested.
While Aragoncillo was an active participant in the offense,
Aquino’s role was purely passive.




                                 9
        Second, the word “obtaining” in the commentary to § 2M3.2
likely refers to other subsections of 18 U.S.C. § 793—namely, (a),
(b), and (c). Unlike § 793(d) and (e), these subsections are
addressed only to § 2M3.2. Compare U.S.S.G. § 2M3.2, cmt.
Statutory Provisions (listing, in pertinent part, 18 U.S.C. § 793(a),
(b), (c), (d), (e), and (g)), with id. § 2M3.3, cmt. Statutory
Provisions (listing, in pertinent part, 18 U.S.C. § 793(d), (e), and
(g) only). These subsections specifically proscribe conduct
undertaken “for the purpose of obtaining information respecting
the national defense.” 18 U.S.C. § 793(a) (emphasis added); see 18
U.S.C. § 793(b) & (c) (referring to § 793(a) “for the purpose
aforesaid”). Subsections (d) and (e), by contrast, do not penalize
obtaining, but focus on other conduct—communication, delivery,
transmission, and retention. 18 U.S.C. § 793(d) & (e).10

       In short, there is no sound textual basis for selecting either
§ 2M3.2 or § 2M3.3 to address Aquino’s retention offense at Step
One.11 Fortunately, at Step Two, the Sentencing Commission
provided guidance that makes it functionally irrelevant whether we
begin our analysis at § 2M3.2 or § 2M3.3. Critically, the District
Court did not heed what the Commission had said.




       10
         The government argues that Aquino’s retention offense is
among the “diverse forms of obtaining . . . national defense
information” addressed under § 2M3.2. See U.S.S.G. § 2M3.2, cmt.
background (emphasis added). This is a misreading. The
“diversity” to which the commentary refers is quite clearly a
description of the conduct proscribed in 18 U.S.C. § 793(a): “goes
upon, enters, flies over, or otherwise obtains information
concerning [the national defense].” Again, these verbs carry an
active connotation distinguishable from the purely passive conduct
to which Aquino pleaded guilty, and, moreover, are punishable
under an entirely distinct subsection of § 793.
       11
          Indeed, that portion of the commentary to § 2M3.3 that
refers to violations of § 793(e) refers only to “transmitting or
communicating” national defense information, with no mention of
“retaining.” See U.S.S.G. § 2M3.3, cmt. background.

                                10
Step Two

       Ordinarily, a sentencing court may consider all relevant
conduct when applying cross references contained in guideline
commentaries. U.S.S.G. § 1B1.3(a). This general rule does not
apply, however, where it is “otherwise specified” by the plain
language of the cross references that the conduct the court may
consider is limited to the offense of conviction. Id. Here, the cross
references contained in commentary note 2 to both § 2M3.2 and §
2M3.3 are worded such that they apply only if the conduct of which
“the defendant is convicted” satisfies the terms of the cross
reference. The government did not challenge this point in its briefs
or at oral argument. Accordingly, we consider only offense of
conviction conduct in applying the cross references.

       At this point, the analysis becomes rather perfunctory, and
we reach the same result whether we begin at § 2M3.2 or § 2M3.3.
Application Note 2 to § 2M3.2 states, “If the defendant is
convicted under 18 U.S.C. § 793 . . . (e), § 2M3.3 may apply.”
U.S.S.G. § 2M3.2, cmt. n.2. Therefore, a court punishing any
violation of § 793(e) first must consider the applicability of §
2M3.3.12 Application Note 2 to § 2M3.3 provides a return to §
2M3.2, but only “[i]f the defendant was convicted of 18 U.S.C. §



       12
          A cross reference, like all commentary to the guidelines,
is “binding on federal courts as controlling law unless it either (1)
violates the Constitution or a federal statute or (2) is plainly
erroneous or inconsistent with the guideline.” United States v.
Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994) (citations, quotation
marks, and alteration omitted). Thus, a sentencing court must
abide not only by the text of guideline provisions, but by their
supporting commentary and direction as well. Although Bertoli
was a pre-Booker case, we have subsequently held that “the
sentencing courts in this Circuit should continue to follow the
requirement to ‘consider’ the Guidelines by calculating a
Guidelines sentence as they would have before Booker, . . . taking
into account this Circuit’s pre-Booker caselaw, which continues to
have advisory force.” United States v. King, 454 F.3d 187, 196 (3d
Cir. 2006).

                                11
793 . . . (e) for the willful transmission or communication of
intangible information with reason to believe that it could be used
to the injury of the United States or the advantage of a foreign
nation.” Id. § 2M3.3 cmt. n.2.

        The plain language of the cross reference in § 2M3.3 does
not apply to Aquino. A violation of § 793(e) consists of five
elements: a defendant must (1) lack authority to possess, access,
or control (2) information relating to the national defense (3) in
either tangible or intangible format, and (4) willfully (5) undertake
the active conduct (“willfully communicates, delivers, transmits or
causes to be communicated, delivered, or transmitted”), inchoate
conduct (“attempts” the same), or what might be described as
“passive” conduct (“willfully retains the [information] and fails to
deliver it to the officer or employee of the United States entitled to
receive it”) proscribed by the statute. 18 U.S.C. § 793(e). Two of
these elements—format and conduct—are variable, such that the
underlying offense of conviction may not be consistent from one
§ 793(e) conviction to another. Given the plain language of the
cross reference in § 2M3.3, a defendant is sentenced under § 2M3.2
only if these variable elements are satisfied in a specific fashion.

        That is not the case here. Aquino was convicted of the
willful retention of tangible information with the belief that it
could be used to the injury of the United States or the advantage of
a foreign nation. By the principle of expressio unius est exclusio
alterius, Aquino’s offense is unambiguously excluded from
punishment under § 2M3.2 by virtue of both the format of the
national defense information in his possession (tangible) and the
conduct to which he pleaded (retention). Phrased another way,
Aquino’s mens rea admission is but one of three elements required
to satisfy the cross-reference and is insufficient in isolation to
effect a return to § 2M3.2.13 Accordingly, under the plain language



       13
         The District Court and the government overemphasize this
admission, which, for purposes of Aquino’s conviction, was mere
surplusage. Section 793(e) differentiates between “tangible”
information, i.e., the laundry list of items in the statute, and
“intangible” information, i.e., knowledge. See United States v.

                                 12
of the cross-reference, Aquino’s conviction can only be addressed
under § 2M3.3.

      Accordingly, we will vacate the judgment of sentence and
remand for resentencing.




Rosen, 444 F. Supp. 2d 664, 669 n.6 (E.D. Va. 2006); United States
v. Morison, 622 F. Supp. 1009, 1011 (D. Md. 1985). For intangible
information, the government must also prove mens rea: that “the
possessor has reason to believe [the intangible information] could
be used to the injury of the United States or to the advantage of any
foreign nation.” 18 U.S.C. § 793(e); see Rosen, 445 F. Supp. 2d at
612-13. The House Committee, in its Report on § 793(e) in
connection with the 1950 revision of the Espionage Act, explained
that this qualifying language addressed concerns that the category
of illegally communicated intangible information was potentially
overbroad. H.R. Rep. No. 647, 81st Cong., 1st Sess. (1949), at 4.
The Committee left it to the courts to define this limiting phrase on
a case-by-case basis, but stressed that the “qualification [was] not
intended to qualify the other items enumerated in the subsections.”
Id. (emphasis added). Accordingly, the government must address
the limiting phrase only where the information at issue is
intangible. See United States v. Morison, 604 F. Supp. 655, 658 (D.
Md. 1985) (noting that the mens rea requirement “is not present for
the delivery or retention of photographs or documents”). This
distinction is reiterated in the first paragraph of background
commentary to § 2M3.3. See U.S.S.G. § 2M3.3, cmt. background.
        Aquino admitted mens rea even though his plea was to the
retention only of tangible information. By the terms of the statute,
he could have been convicted of § 793(e) for possessing and
retaining tangible material whether or not he knew or had reason
to know of a specified use for the information contained therein.
Thus, the District Court erred in describing the inclusion of the
mens rea requirement in the Superceding Information and plea
colloquy as “requisite.” (App. 104.)

                                13
