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Heard: April 30, 2010

Before: NEWMAN, RAGGI, and HALL, Circuit Judges.

This appeal primarily concerns the rarely litigated issue of the appropriate sentencing guideline, under the United States Sentencing Guidelines (“the Guidelines”) for violations of 18 U.S.C. § 793(e), which punishes, among other things, unauthorized possession and willful retention of various documents relating to national defense. The issue arises on an appeal by Noureddine Malki from the May 23, 2008, judgment of conviction of the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) after pleading guilty to seven offenses charged in two separate indictments. The District Court imposed an aggregate sentence of 121 months. On appeal, Malki principally challenges the determination of the applicable guideline for the section 793(e) offenses, contending that section 2M3.3 of the Guidelines, rather than section 2M3.2, should have been used for the initial calculation. We agree, and therefore remand for resentencing.

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