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.
The opinion of the court was delivered by: Barry, Circuit Judge
Argued: November 21, 2008
Before: BARRY, CHAGARES, Circuit Judges, and RESTANI,*fn1 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).*fn2 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*fn3 and § 2M3.3.*fn4 The 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.
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, 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.
(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 ...