U.S. v. Kulick

Decision Date29 December 2010
Docket NumberNo. 09-3833,09-3833
Citation629 F.3d 165
PartiesUNITED STATES of America v. Robert John KULICK, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Theodore B. Smith, III [Argued], Gordon A.D. Zubrod, Office of United States Attorney, Harrisburg, PA, Counsels for Appellee.

Peter Goldberger [Argued], Ardmore, PA, Jeffrey M. Miller, Nasuti & Miller, Philadelphia, PA, Lawrence J. Moran, Lenahan & Dempsey, Scranton, PA, Elizabeth J. Reilly-Hodes, Sara B. Richman, Michael Schwartz, Pepper Hamilton, Philadelphia, PA, Counsels for Appellant.

Before: AMBRO, FISHER and GREENBERG, Circuit Judges.


FISHER, Circuit Judge.

Robert John Kulick pled guilty to one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office assigned Kulick a base offense level of 23 under the United States Sentencing Guidelines ("Guidelines"), by cross-referencing a dismissed charge for extortion. Kulick raises two arguments on appeal. First, he contends that the District Court's application of the cross-reference in § 2K2.1(c)(1) of the Guidelines, resulting in an increased base offense level and sentence, was improper. Second, he argues that the District Court did not adequately explain its reasons for denying a downward departure or variance. For the reasons stated herein, we will vacate Kulick's sentence and remand for resentencing. Specifically, we hold that the extortion count was not relevant conduct to the unlawful possession of a firearm count, and therefore the cross-reference was improperly applied.


On April 23, 2008, a grand jury returned a four-count indictment against Kulick. Count One involved conduct occurring on March 6, 2008. It charged Kulick with being a felon in possession of six firearms, including a Beretta semi-automatic pistol, in violation of 18 U.S.C. §§ 922(g), 924(a)(2). Counts Two through Four all charged Kulick for conduct occurring in December 2005. Specifically, Count Two charged him with being a felon in possession of a Beretta semi-automatic pistol, in violation of 18 U.S.C. §§ 922(g), 924(a)(2).1 Count Three charged him with using, carrying, and brandishing a firearm, during, in relation to, and in furtherance of a crime of extortion, in violation of 18 U.S.C. § 924(c)(1). Count Four charged him with obstructing interstate commerce through extortion, in violation of 18 U.S.C. § 1951, by threatening an employee with a Beretta semi-automatic pistol.

On November 14, 2008, Kulick pled guilty to Count One, unlawful possession of a firearm. As part of his plea agreement, the government agreed to move for dismissal of the remaining counts, including the extortion count. Kulick was sentencedon September 15, 2009 under the 2008 edition of the Guidelines.

The United States Probation Office prepared a Presentence Investigation Report ("PSR"). The PSR calculated Kulick's base offense level at 23 and his criminal history category at I, yielding a recommended imprisonment range of 46-57 months. The PSR applied the cross-reference provision and used the guideline for extortion, rather than unlawful possession of a firearm, to determine the base offense level. It applied the cross-reference on the basis that the extortion was relevant conduct to the unlawful possession of a firearm offense.2 Importantly, extortion had a base offense level of 23 (46-57 months), whereas unlawful possession of a firearm had a base offense level of 19 (30-37 months).

Kulick made two main arguments at the sentencing hearing, both of which were rejected by the District Court. First, Kulick objected to the PSR guideline calculation. He argued that the PSR incorrectly applied the cross-reference at § 2K2.1(c)(1), thereby increasing the base offense level to 23. Specifically, Kulick argued that the cross-reference was inapplicable because of the temporal disconnect between the two crimes. The extortion offense occurred in 2005, while the unlawful possession of a firearm offense occurred in 2008. The government conceded the merit of Kulick's argument, and stated:

I would have to say when you look at the two cases cited by [Kulick], he has a very strong argument because the gun was not being used to extort the employee at the time the gun was seized. Over a year had passed since that incident.
If the Court finds that the cross reference should not be applied, I think the defense would agree that the Court may still consider the incident as in the sense that it is relevant conduct. It shows the overall conduct of [Kulick].
It is the same weapon as the one seized. The seizures occurred in the same office where the extortion took place, and therefore, the Court may consider it, but not as a cross reference.

(App. at 79-80.) Despite the government's concession, the District Court adopted the PSR's approach and applied the cross-reference to enhance the base offense level to 23.

Second, Kulick argued that his record of charitable contributions and post-arrest alcohol treatment were mitigating factors counseling in favor of a downward departure or variance. Specifically, Kulick argued that he had undertaken alcohol abuse treatment immediately following his arrest and that he had donated approximately $125,000 to six local charitable organizations in the past five years. The District Court stated that it had taken into consideration all of Kulick's arguments and specifically referenced Kulick's alcohol treatment. Nevertheless, it refused to grant a downward variance or departure.

The District Court adopted the PSR in full. It concluded that the total offense level was 23, the criminal history category was I, and the recommended imprisonment range was 46-57 months. The governmentrequested that the District Court depart downward two levels, to level 21,3 and the court followed this recommendation. The imprisonment range was reduced to 37-46 months, and the District Court sentenced Kulick to 37 months' imprisonment.

Kulick timely appealed.


The United States District Court for the Middle District of Pennsylvania had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Our review of the District Court's interpretation and construction of the Guidelines is plenary. United States v. Pena, 268 F.3d 215, 219 (3d Cir.2001); United States v. Cohen, 171 F.3d 796, 802 (3d Cir.1999). We review the District Court's "factual findings in determining whether the offenses charged were part of one overall scheme or a continuing course of criminal conduct ... for clear error." United States v. Rudolph, 137 F.3d 173, 178 (3d Cir.1998); see also United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). "A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Wise, 515 F.3d at 218 (internal citations omitted).

Appellate review of a sentence is for abuse of discretion. United States v. Jackson, 523 F.3d 234, 243 (3d Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). First, we review the District Court's order to assure that there was no significant procedural error, such as failing to consider the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. 586. Second, we consider the substantive reasonableness of the sentence under an abuse-of-discretion standard. Id.


Kulick raises two arguments on appeal. First, he argues that the extortion offense was not relevant conduct to the unlawful possession of a firearm offense and that, therefore, the cross-reference was improperly applied. Second, he argues that the District Court did not adequately explain its decision not to depart or vary downward. We will address each contention in turn.

A. Chapter Two Cross-References.

Section 2K2.1 set the base offense level for Kulick's unlawful possession of a firearm offense at 19. Its cross-reference provision, however, authorized the District Court to set the base offense level higher by cross-referencing another offense:

[i]f the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply ... § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above ...

U.S.S.G. § 2K2.1(c)(1). Before determining whether extortion may be cross-referenced under § 2K2.1(c)(1), we must first address two issues. First, is cross-referencedconduct limited to relevant conduct? Second, if yes, is extortion relevant conduct to unlawful possession of a firearm?

1. Whether § 2K2.1(c)(1) is limited by § 1B1.3.

A split has developed among our sister courts of appeals regarding whether a cross-referenced offense in § 2K2.1(c)(1) must be within the relevant conduct of the charged offense. In other words: is § 2K2.1(c)(1) limited to relevant conduct as defined in § 1B1.3 of the Guidelines? We have not yet weighed in, but we do so now and hold that cross-referenced conduct under § 2K2.1(c)(1) must be relevant conduct.

Section 1B1.3 defines relevant conduct and provides a general rule of construction for Chapter Two cross-references. It explicitly states that "[u]nless otherwise specified, ... (iii) cross references in Chapter Two ... shall be determined on the basis of the following [definitions of relevant conduct]." U.S.S.G. § lB1.3(a). Thus, § lB1.3(a) is "a general application principle that governs both cross-references in Chapter Two offense guidelines and offense level adjustments in Chapter Three, provided those sections do not specify to the contrary." United States v. Ritsema, 31 F.3d 559, 564 (7th Cir.1994). Because it is a...

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