12-3167-cr (L)
United States v. Malki




                        U NITED S TATES C OURT OF A PPEALS
                             F OR THE S ECOND C IRCUIT

                               August Term 2012

      (Argued:     May 14, 2013              Decided:          June 11, 2013)

          Docket Nos. 12-3167-cr (L), 12-3178-cr (CON)

                           _____________________

                           U NITED S TATES   OF   A MERICA ,

                                                      Appellee,

                                        V.


 N OUREDDINE M ALKI ,    AKA A BDULHAKEEM N OUR , AKA A LMALIK N OUR ,    AKA   A BU
                          H AKIM , AKA A LMALIKI N OUR ,

                                            Defendant-Appellant.
                           _____________________

Before:
                 C HIN and L OHIER , Circuit Judges, and
                        K EENAN , District Judge. *

                           _____________________

           Appeal from a judgment of the United States

District Court for the Eastern District of New York (Cogan,

J.) resentencing defendant-appellant for retaining


     *
          The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
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.

             V ACATED   AND   R EMANDED .

                               _____________________

                              D ANIEL S. S ILVER , 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.

                              J AMES I. G LASSER , Wiggin and Dana LLP, New
                                    Haven, Connecticut, for Defendant-
                                    Appellant.

                               _____________________

P ER C URIAM :

             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

                                            -2-
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.

                           BACKGROUND

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

                               -3-
(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] want[s] to be
    heard --

    [THE GOVERNMENT]:     No, your Honor.

    THE COURT:    Okay.

Sentencing Tr. 2:19-23, Apr. 22, 2008.      Hence, without

objection from the government, the district court decided

not to apply the abuse of trust enhancement.

         An additional issue was whether Malki had

deliberately gathered (rather than merely retained) the

documents.   The district court found that Malki had

gathered the four classified documents.      Thus, after

applying section 2M3.2 of the Guidelines, applicable to

gathering national defense information , the district court

calculated a sentencing range of 121-151 months'

imprisonment.    See U.S.S.G. § 2M3.2.   The district court

then sentenced Malki to 121 months' imprisonment, at the

bottom of the Guidelines range.


                              -4-
B.   The First Appeal

         Malki appealed his sentence.    The government did

not cross-appeal or otherwise challenge the district

court's decision not to impose the enhancement for abuse of

a position of trust.

         Upon review, a panel of this Court concluded that ,

notwithstanding the district court's finding that Malki had

gathered classified information, because Malki had not been

charged with "gathering" classified information, his

Guidelines range should have been calculated using section

2M3.3, a provision applicable to retaining classified

information.   United States v. Malki, 609 F.3d 503, 509-10

(2d Cir. 2010).    The Guidelines provision applicable to

retaining classified information would have reduced Malki's

base offense level by six.    Compare U.S.S.G. § 2M3.3 (base

offense level of 24 for retaining classified information

that is not top secret), with id. § 2M3.2 (base offense

level of 30 for gathering classified information that is

not top secret).   Furthermore, as to other issues raised by

Malki, the panel concluded that the district court did not

err by imposing a sentencing enhancement for obstruction of

                              -5-
justice or by denying Malki a reduction for acceptance of

responsibility, id. at 511-12, and that the district court

had faithfully considered the 18 U.S.C. § 3553(a) statutory

factors, id. at 512.    The panel then remanded for

resentencing.   Id.

C.   The Resentencing

         On remand, the case was reassigned.    The district

court (Cogan, J.) conducted sentencing proceedings over

several days.   In relevant part, like Judge Korman, Judge

Cogan concluded that Malki was responsible for "gathering"

the four classified documents.

         Further, at the government's request, Judge Cogan

reopened the issue of whether the two-level enhancement for

abuse of a position of trust should apply.    Malki argued

that Judge Korman had already rejected the enhancement and

the government chose not to appeal tha t decision, and that,

therefore, the court could not reconsider the adjustment in

light of the government's waiver and what Malki contended

was the Second Circuit's remand for limited resentencing.

The government, by contrast, argued that our prior mandate

remanded the case for de novo resentencing, thereby

                              -6-
allowing the district court to revisit Judge Korman's

factual findings and Guidelines calculations.    The district

court acknowledged some ambiguity, but ultimately concluded

that our previous mandate contemplated de novo

resentencing:

    THE COURT: . . . I do think what the Second
    Circuit was saying is, in light of the wrong base
    level having been used, the whole thing should be
    done over. That is the way I interpret that
    decision.
              The matter is not free from doubt. The
    circuit perhaps could have been clearer on it.
    But I do think that they wanted a whole new look
    at the sentence in light of the misapplication of
    the base level.

Resentencing Tr. 21:21-22:3, Aug. 1, 2012.   Judge Cogan

then concluded that a two-level enhancement for abuse of a

position of trust applied.   See U.S.S.G. § 3B1.3.    After

accounting for this enhancement, and a pplying the

Guidelines provision applicable to retaining classified

information, the district court calculated Malki's

Guidelines range to be 78-97 months' imprisonment.     In

light of its finding that Malki had deliberately gathered

the classified documents, however, the district court

imposed an above-Guidelines sentence of 108 months'


                             -7-
imprisonment.     Malki has been imprisoned since

approximately November 2007.

            This appeal followed.

                           DISCUSSION

            On appeal, Malki challenges both the procedural

and substantive reasonableness of his sentence.      For the

reasons described below, we conclude the district court

procedurally erred when sentencing Malki.      In light of our

disposition of this appeal, we do not address Malki's

arguments as to the substantive reasonableness of his

sentence.

A.   Applicable Law

     1.     Procedural Reasonableness

            A district court procedurally errs by "failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequatel y explain

the chosen sentence -- including an explanation for any

deviation from the Guidelines range."      Gall v. United

States, 552 U.S. 38, 51 (2007).      In reviewing a sentence

                               -8-
for such procedural errors, we apply "a particularly

deferential form of abuse-of-discretion review."      United

States v. Cavera, 550 F.3d 180, 187-88 & n.5 (2d Cir. 2008)

(en banc); accord United States v. Broxmeyer, 699 F.3d 265,

278 (2d Cir. 2012).

    2.   Mandate Rule

         When we overturn a sentence without vacating one

or more underlying convictions and remand for resentencing,

the "default rule" is that the remand is for limited, and

not de novo, resentencing.   United States v. Quintieri, 306

F.3d 1217, 1228-29 n.6 (2d Cir. 2002).    When our remand is

limited, the mandate rule generally forecloses re-

litigation of issues previously waived by the parties or

decided by the appellate court.    See id. at 1225.

Similarly, it "also precludes re-litigation of issues

impliedly resolved by the appellate court's mandate. "     Yick

Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).

         Although a mandate may, of course, call for de

novo resentencing, thereby allowing parties to reargue

issues previously waived or abandoned, a mandate should not

be so interpreted unless it clearly says so or our intent

                             -9-
that resentencing be de novo is evident from "the broader

'spirit of the mandate.'"   United States v. Ben Zvi, 242

F.3d 89, 95 (2d Cir. 2001) (citation omitted).     The

presumption of limited resentencing may be overcome if

issues "became relevant only after the initial appellate

review" or if the court is presented with a "cogent or

compelling reason for resentencing de novo."     United States

v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010) (citation and

internal quotation marks omitted).

B.   Application

     1.   Remand for Limited Resentencing

          When Malki's case was last before us, a panel of

this Court "remanded for resentencing so that the

determination of an appropriate sentence, whether a

Guidelines or a non-Guidelines sentence, will begin with

the use of section 2M3.3 as the applicable sentencing

guideline."   Malki, 609 F.3d at 512.   Malki argues that the

district court -- wrongly -- interpreted this mandate as a

remand for de novo sentencing and, therefore, miscalculated

his Guidelines range by adding the two-level enhancement

for abuse of a position of trust.    We agree.

                             -10-
           The text of the mandate did not unequivocally

identify whether we contemplated limited or de novo

resentencing.   Nor was it evident from the "'spirit of the

mandate'" that we intended de novo resentencing.     To the

contrary, the mandate identified only a specific error to

be corrected -- the use of the incorrect guideline when

calculating Malki's Guidelines range.     Malki, 609 F.3d at

510-11.   We did not vacate Malki's conviction, but remanded

for correction of a sentencing error; this suggests that

the prior panel intended a limited resentencing.     See

Quintieri, 306 F.3d at 1226, 1228 & n.6.     Furthermore, we

addressed -- and disposed of -- three additional arguments

raised by Malki, see Malki, 609 F.3d at 511-12, which would

have been unnecessary had we contemplated de novo

resentencing proceedings.

          The district court acknowledged the lack of

clarity in our remand order.     See Resentencing Tr. 21:25-

22:1 ("The matter is not free from doubt.    The circuit

perhaps could have been clearer on it.").     Although our

prior mandate could have -- and should have -- been more

explicit, to the extent the mandate was unclear, the

                               -11-
ambiguity should have been resolved in Malki's favor.        Cf.,

e.g., United States v. Saccoccia, 433 F.3d 19, 28 (1st Cir.

2005) ("[W]e must read any ambiguities or omissions in a

court order as redounding to the benefit of the person

charged with contempt." (quotation and omission omitted));

United States v. Raftis, 427 F.2d 1145, 1146 (8th Cir.

1970) (per curiam) ("[T]he law construes ambiguous language

in a sentence pronouncement favorably to a prisoner.") .

          Although, on rare occasions, parties may re-

litigate issues foreclosed by a limited mandate, this is

not such a case.   Before Judge Korman, the government did

not object to omitting the enhancement for abuse of a

position of trust even though it had "both an opportunity

and an incentive to raise it."      Quintieri, 306 F.3d at

1229.   Likewise, it did not appeal Judge Korman's decision

not to impose this enhancement.      Furthermore, neither

"intervening circumstances" nor "cogent or compelling

reasons" justified reconsidering Judge Korman's finding

during the resentencing phase.      See, e.g., United States v.

Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per curiam);

United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)

                             -12-
(citing, as examples of compelling reasons, a change in

law, new evidence, correction of a clear error, and

preventing manifest injustice).

         A change in the base offense level, rather than

"undo[ing] the entire 'knot of calculation,'" merely

requires transposing adjustments to a new baseline range.

See Quintieri, F.3d at 1228 ("[R]esentencing to correct

specific sentencing errors does not ordinarily undo the

entire 'knot of calculation.'").   Hence, the district court

procedurally erred by adding a two-point offense-level

enhancement for abuse of a position of trust.   See Cavera,

550 F.3d at 190 (district court errs when it "makes a

mistake in its Guidelines calculation").

    2.   Other Alleged Procedural Errors

         Malki raises three additional arguments

challenging the procedural reasonableness of the district

court's sentence, none of which has merit.   First, he

contends that the district court made clearly erroneous

findings that he had deliberately gathered four classified




                            -13-
documents. 1   The record amply supported the district court's

finding of deliberate gathering and its conclusion that

Malki was "an acknowledged liar" who had been untruthful in

his testimony before the court.      See United States v.

Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (we accord

"particularly strong deference" to district court findings

based on credibility determinations).      Thus, we are not

"left with the definite and firm conviction that a mistake

has been committed," United States v. Murphy, 703 F.3d 182,

188 (2d Cir. 2012) (citation and internal quotation marks

omitted), and conclude that Malki has identified no clear

procedural error.

          Second, Malki argues that the district court did

not adequately explain its sentence.      The district court,

however, made "an individualized assessment based on the

facts presented," which addressed Malki's motives for

committing the offense, and his deliberate removal of the


     1
          Although Judge Korman made a finding on this point,
which Malki did not appeal, we do not consider this issue
foreclosed by the limited mandate. New evidence that allegedly
undercut Malki's motive to engage in deliberate gathering of
classified information had been produced by the government
during the intervening sentencing dates. See United States v.
Tenzer, 213 F.3d 34, 39 (2d Cir. 2000).
                              -14-
classified documents -- an aggravating factor at

sentencing.   Gall, 552 U.S. at 50.    Furthermore, the court

repeatedly emphasized that this was a wartime offense and

that allegedly comparable cases offered by the defense had

not occurred "in a war zone, with soldiers' lives at

stake."   Resentencing Tr. 92:13-14.   The district court

then reiterated these points in its statement of reasons

justifying the above-Guidelines sentence.     We conclude that

these explanations sufficiently explained the district

court's sentence in a manner that would "allow for

meaningful appellate review."   Gall, 552 U.S. at 50.

          Third, to the extent that Malki argues that the

district court did not explain its deviation from Judge

Korman's sentence, we conclude that no particular

explanation was necessary.   In the past, we have required

that a second judge resentencing a defendant on largely

identical facts explain any variation from a prior,

vacated, sentence imposed by a different judge.     See United

States v. Johnson, 273 F. App'x 95, 101 (2d Cir. 2008)

(summary order).   There, however, the district court

imposed a significantly longer sentence on remand with

                             -15-
hardly any justification at all.        Id.   By contrast, in

absolute terms, the 108-month sentence imposed by the

district court here was less than the 121-month sentence

imposed by Judge Korman.       Thus, notwithstanding the new

evidence introduced by Malki, after "giving due deference

to the sentencing judge's exercise of discretion, and

bearing in mind the institutional advantages of district

courts," Cavera, 550 F.3d at 190, we conclude that the

district court's explanation was sufficient.

                           *      *     *

         In light of our decision to remand for the limited

purpose of correcting the procedural error noted above, we

do not address Malki's challenge to the substantive

reasonableness of his sentence.

                           CONCLUSION

         For the foregoing reasons, we VACATE the sentence

of the district court and REMAND for resentencing.         To be

clear, this is a remand for a limited, and not a de novo,

resentencing, and the district court shall resentence Malki

by recalculating the Guidelines range without the two-level

enhancement for abuse of a position of trust, and without

                                 -16-
re-litigating issues previously waived or abandoned by the

parties, or decided by this or the prior panel.   The

mandate shall issue forthwith.




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