PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 09-3833
__________
UNITED STATES OF AMERICA
v.
ROBERT JOHN KULICK,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 08-cr-00168)
District Judge: Honorable James M. Munley
____________
Argued November 17, 2010
Before: AMBRO, FISHER and
GREENBERG, Circuit Judges.
(Filed: December 29, 2010 )
Theodore B. Smith, III [Argued]
Gordon A.D. Zubrod
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000
Counsel for Appellee
Peter Goldberger [Argued]
50 Rittenhouse Place
Ardmore, PA 19003-2276
Jeffrey M. Miller
Nasuti & Miller
150 South Independence Mall West
Suite 1064
Philadelphia, PA 19106-0000
Lawrence J. Moran
Lenahan & Dempsey
116 North Washington Avenue
Suite 400, P.O. Box 234
Scranton, PA 18503-0000
Elizabeth J. Reilly-Hodes
Sara B. Richman
Michael Schwartz
Pepper Hamilton
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-0000
Counsel for Appellant
2
_______________
OPINION OF THE COURT
_______________
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.
I.
On April 23, 2008, a grand jury returned a four-count
indictment against Kulick. Count One involved conduct
3
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 sentenced on September 15, 2009 under the 2008 edition
of the Guidelines.
The United States Probation Office prepared a
Presentence Investigation Report (“PSR”). The PSR
1
Counts One and Two were based on Kulick‟s 1988
conviction for attempting to evade or defeat personal income
tax, a felony in violation of 26 U.S.C. § 7201. As a result of
this conviction, federal law barred him from possessing a
firearm. See 18 U.S.C. § 922(g).
4
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
2
The fact that the extortion offense was dismissed
pursuant to the plea agreement did not preclude it from being
offered as relevant conduct at sentencing. United States v.
Baird, 109 F.3d 856, 863 (3d Cir. 1997); see also United
States v. Hill, 79 F.3d 1477, 1481 (6th Cir. 1996) (“[I]t is well
settled . . . that conduct forming the basis for counts
dismissed pursuant to a plea agreement may be considered in
determining a defendant‟s base offense level under the
Sentencing Guidelines.”). Moreover, it was not necessary to
prove extortion beyond a reasonable doubt in order for it to be
considered for enhancement at sentencing. United States v.
Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc).
5
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.
6
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 government requested 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.
II.
3
U.S.S.G. § 5K1 provides that the government may
move for the court to depart from the Guidelines when a
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense.
7
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. Randolph, 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
(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.
Second, we consider the substantive reasonableness of the
sentence under an abuse-of-discretion standard. Id.
III.
8
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-referenced
conduct limited to relevant conduct? Second, if yes, is
9
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. § 1B1.3(a). Thus, § 1B1.3(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 general
principle, the commentary to § 1B1.3 clarifies that cross-
references are always limited to relevant conduct unless there
are “more explicit instructions.” § 1B1.3, cmt. backg‟d. The
general language of § 2K2.1(c)(1) does not constitute an
explicit instruction to take a different approach. Accordingly,
courts of appeals to reach this issue, with the exception of the
10
United States Court of Appeals for the Fifth Circuit, have
held that § 2K2.1(c)(1) is limited by § 1B1.3 to relevant
conduct. See, e.g., United States v. Settle, 414 F.3d 629, 633-
34 (6th Cir. 2005); United States v. Williams, 431 F.3d 767,
771-72 (11th Cir. 2005); United States v. Jardine, 364 F.3d
1200, 1209 (10th Cir. 2004); United States v. Mann, 315 F.3d
1054, 1056 (8th Cir. 2003); United States v. Jones, 313 F.3d
1019, 1022 (7th Cir. 2002).
The Fifth Circuit is the only court of appeals to have
held that § 1B1.3 does not restrict the application of
§ 2K2.1(c)(1). In United States v. Gonzales, the Fifth Circuit
reasoned that § 2K2.1(c)(1)‟s “unlimited references to
„another offense,‟ indicate[] that it [the offense] is not
restricted to offenses which would be relevant conduct but
embraces all illegal conduct performed or intended by [the]
defendant concerning a firearm involved in the charged
offense.” 996 F.2d 88, 92 (5th Cir. 1993). Therefore, the
court held that, as long as the same firearm was used, any
offense committed with that firearm may be cross-referenced
regardless of whether it was relevant conduct.
We join the majority of our sister courts of appeals and
hold that § 2K2.1(c)(1) cross-referenced conduct must be
relevant conduct under § 1B1.3. Section 2K2.1(c)(1) does
not explicitly specify an alternative approach to the general
rule of construction provided in § 1B1.3. The “mere
reference to „another offense‟ does not resolve the question of
whether the other offense must be within the relevant conduct
of the charged offense.” Williams, 431 F.3d at 772.
11
Therefore, § 1B1.3 limits cross-references in § 2K2.1(c)(1) to
relevant conduct.
2. Whether extortion was relevant
conduct under 1B1.3(a)(2).
The District Court concluded that extortion was
relevant conduct to the unlawful possession of a firearm
offense, but it did not clarify whether it was relevant conduct
under §§ 1B1.3(a)(1) or (a)(2). Both parties suggest that
§ 1B1.3(a)(2) applies here. Relevant conduct is defined in
§ 1B1.3(a) as:
(1)(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant;
and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in
concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity, 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.
12
(2) solely with respect to offenses of a character
for which § 3D1.2(d) would require grouping of
multiple counts, all acts and omissions
described in subdivisions (1)(A) and (1)(B)
above that were part of the same course of
conduct or common scheme or plan as the
offense of conviction.
(3) all harm that resulted from the acts and
omissions specified in subsections (a)(1) and
(a)(2) above, and all harm that was the object of
such acts and omissions.
§ 1B1.3(a).
In Jansen v. United States, 369 F.3d 237, 248 (3d Cir.
2004), we established a general rule for determining whether
§§ 1B1.3(a)(1) or (a)(2) applies to certain conduct. We held
that if both sections could apply to the facts of a case, we
must apply Section (a)(2). Id. at 247-48. Moreover, we held
that Section (a)(2) applies “when the offense of conviction is
a groupable offense, regardless of the nature of the alleged
relevant conduct.” 4 Id. at 248. Kulick‟s offense of
4
We note that not every court of appeals agrees with
our interpretation of § 1B1.3(a)(2). We apply Section (a)(2)
when only the offense of conviction is a groupable offense,
rather than requiring both the offense of conviction as well as
the relevant offense to be groupable offenses. Jansen v.
United States, 369 F.3d 237, 248 (3d Cir. 2004). Several
courts of appeals disagree with our rationale and require both
13
conviction, unlawful possession of a firearm, is a groupable
offense.5 See U.S.S.G. § 3D1.2(d). Accordingly, we apply
Section (a)(2) to determine whether extortion was relevant
conduct to Kulick‟s unlawful possession of a firearm.
For an act to qualify as relevant conduct under
§ 1B1.3(a)(2), three conditions must be met: “(1) it must be
the convicted offense and the relevant conduct offense to be
capable of grouping under § 3D1.2(d) in order for Section
(a)(2) to apply. See, e.g., United States v. Williams, 431 F.3d
767, 772 n.9 (11th Cir. 2005); United States v. Gill, 348 F.3d
147, 153 (6th Cir. 2003); United States v. Wyss, 147 F.3d 631,
632 (7th Cir. 1998).
If we were not bound by Jansen, an argument might be
made that we should not apply Section (a)(2) on these facts,
which pertain to firearm offenses rather than drug offenses.
Nonetheless, we are bound by our precedent and will
therefore apply Section (a)(2). In any event, we leave for
another day whether to recommend en banc consideration of
whether Jansen‟s effect should be limited to drug offenses or
to those cases in which the offense of conviction has a higher
offense level than the alleged relevant conduct.
5
Section 3D1.2(d) of the Guidelines defines groupable
offenses. Felon-in-possession offenses are among those
specifically listed as groupable. Although extortion is
explicitly listed as an offense that may not be grouped under §
3D1.2(d), we only look to the offense of conviction under
Jansen.
14
the type of conduct described in § 1B1.3(a)(1)(A) and (B)
(„all acts and omissions committed . . . by the defendant‟);
(2) grouping would be appropriate under § 3D1.2(d); and
(3) it must have been „part of the same course of conduct or
common scheme or plan‟ under § 1B1.3(a)(2).” United States
v. Blackmon, 557 F.3d 113, 123 (3d Cir. 2009).
The first two conditions are easily satisfied. In
accordance with the District Court‟s findings and the text of
§ 1B1.3(a)(1)(A), Kulick committed both offenses.
Moreover, grouping is appropriate because unlawful
possession of a firearm is a groupable offense under
§ 3D1.2(d). See Jansen, 369 F.3d at 248.
The third condition, whether the two offenses were
part of the “same course of conduct” or “common scheme,”
requires a more fact-intensive analysis and is the main issue
here. The Guidelines‟ commentary defines the “same course
of conduct” as those offenses that “are sufficiently connected
or related to each other as to warrant the conclusion that they
are part of a single episode, spree, or ongoing series of
offenses.” § 1B1.3 cmt. n.9(B). The commentary also
defines a “common scheme or plan” as being at least two
offenses that are “substantially connected to each other by at
least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.”
Id. at cmt. n.9(A).
In order to determine whether offenses are part of the
same course of conduct, and thus relevant conduct, the
Guidelines‟ commentary provides a three-prong test. The
15
sentencing court must look to: (1) the temporal proximity
between the two offenses; (2) the similarity of the offenses;
and (3) the regularity of the offenses. United States v.
Wilson, 106 F.3d 1140, 1143 (3d Cir. 1997) (quoting § 1B1.3,
cmt. n.9(B)). Importantly, the test is a sliding scale, so
“[e]ven if one factor is absent,” relevant conduct may be
found where at least one other factor is strong. Id. Therefore,
“[a]lthough there is no bright-line rule defining what
constitutes „the same course of conduct,‟” the relative
strengths of the three prongs must be individually assessed.
United States v. Hill, 79 F.3d 1477, 1484 (6th Cir. 1996).
This factual determination is for the District Court to
determine in the first instance, and we review for clear error.
United States v. Harrison, 357 F.3d 314, 317 (3d Cir. 2004),
vacated on other grounds. Therefore, we turn to the three-
prong test to determine whether the District Court properly
concluded that extortion was relevant conduct, bearing in
mind that “[t]his test is especially important in cases where
the extraneous conduct exists in „discrete, identifiable units‟
apart from the conduct for which the defendant is convicted.”
United States v. Hahn, 960 F.2d 903, 911 (9th Cir. 1992).
a. Temporal Proximity
The time interval between Kulick‟s extortion offense
and the unlawful possession of a firearm offense, twenty-
seven months, is substantial.6 We are wary to stretch the
6
The temporal proximity prong measures the time that
elapsed between the date of the two charged offenses. Thus,
although the government argues at other points that
16
limits of the temporal inquiry because § 1B1.3 “could not
reasonably have been intended to cause a court to convert a
single possession conviction into a sweeping tool to gather in
all of the otherwise unrelated criminality of a defendant
which occurred contemporaneously with the charge-offense.”
Ritsema, 31 F.3d at 567. Therefore, although the relevant
conduct provision permits a sentencing court to consider
events occurring before, during, and after the offense conduct,
it is limited by temporal proximity to prevent “absurd results .
. . especially in the context of possession crimes.” Id.
Our sister courts of appeals have issued several
opinions that are instructive to this inquiry. As a general
principle, “[v]arious courts have found that a period of
separation of over one year negated or weighed against [a
finding of] temporal proximity.” United States v. Wall, 180
F.3d 641, 646 (5th Cir. 1999); see also Hill, 79 F.3d at 1484.
For example, in Hahn, the Ninth Circuit held that a five-
month gap between two offenses was “relatively remote” and
would require a strong showing of similarity and regularity to
constitute relevant conduct. 960 F.2d at 910-11. Hahn was
convicted of four counts related to the unlawful possession of
a firearm and slightly less than one gram of
methamphetamine. The sentencing court adopted the PSR
and considered evidence of Hahn‟s prior methamphetamine
dealing and carrying of firearms spanning over a year prior to
the offenses of conviction. This year-old evidence was used
possession of a gun is considered a “continuing offenses,” it
concedes that twenty-seven months passed between the
offenses. (Red Br. at 24.)
17
as relevant conduct to greatly increase Hahn‟s sentence. The
Ninth Circuit held that there must be a “strong showing of
substantial similarity” if the uncharged conduct is both
solitary and temporally remote. Hahn, 960 F.2d at 911. It
remanded the issue to the district court for consideration.
Over two years passed between Kulick‟s offense of
conviction and the extortion offense. The offenses were
temporally remote, and as a general rule, “where the conduct
alleged to be relevant is relatively remote to the offense of
conviction, a stronger showing of similarity or regularity is
necessary to compensate for the absence of temporal
proximity.” § 1B1.3 cmt. n.9(B). With this in mind, we turn
to the next two prongs.
b. Similarity
The similarity between the two offenses is also very
weak, as there are significant differences between the
offenses of extortion and unlawful possession of a firearm. In
evaluating this prong, a court primarily should consider the
degree of similarity between the offenses, but can also look to
the commonality of victims, the commonality of offenders,
the commonality of purpose, and the similarity of modus
operandi. § 1B1.3 cmt. n.9(A), (B); see also Wilson, 106
F.3d at 1144. When “evaluating offenses under the similarity
prong, a court must not do so at such „a level of generality
that would render worthless the relevant conduct analysis.‟”
Wilson, 106 F.3d at 1144 (quoting Hill, 79 F.3d at 1483).
Therefore,
18
the acts in question must exhibit commonalities
of factors sufficient to allow for a reasonable
grouping of the separate, individual acts into a
larger, descriptive whole. It is not enough,
however, that the acts stand in close temporal
relation to one another. Rather, the similarities
of the acts must arise from the character or type
of the acts.
United States v. Baird, 109 F.3d 856, 865 (3d Cir. 1997).
To find relevant conduct, we require a strong showing
of similarity, even where the temporal proximity was strong.
For example, we held that possession of drugs for personal
use is too dissimilar, and therefore not relevant conduct, to
possession of drugs with intent to distribute, even when the
drugs were found contemporaneously. Jansen, 369 F.3d at
247. Here, Kulick‟s offense of conviction was unlawful
possession of a firearm by a convicted felon, while the
allegedly-relevant conduct was extortion. The two offenses
are dissimilar, as the only commonality is the fact that
possession of a gun is a required element of both charges.
The government mischaracterizes the similarity
inquiry by arguing that the similarity prong is satisfied simply
because Kulick used the same Beretta pistol in both offenses.
In support of this proposition, the government relies on
decisions issued by several courts of appeals, which found
sufficient similarity where a defendant was charged with
multiple counts of unlawful possession of a firearm. See, e.g.,
United States v. Phillips, 516 F.3d 479 (6th Cir. 2008);
19
United States v. Brummett, 355 F.3d 343 (5th Cir. 2003);
United States v. Santoro, 159 F.3d 318 (7th Cir. 1998).
However, these cases merely stand for the proposition that
one count of unlawful possession of a firearm is similar to a
second count of unlawful possession of a firearm, and is
therefore relevant conduct. For example, in Phillips, the
Sixth Circuit upheld the district court‟s enhancement of the
defendant‟s offense level for a 2004 unlawful possession of a
firearm offense. It found that the defendant‟s unlawful
possession of firearms in 2002 and 2006 was relevant conduct
to the offense of conviction. 516 F.3d at 483-85. The court
reasoned that “the contemporaneous, or nearly
contemporaneous, possession of uncharged firearms is . . .
relevant conduct in the context of a felon-in-possession
prosecution.” Id. at 483 (quoting United States v. Powell, 50
F.3d 94, 104 (1st Cir. 1995)). In so ruling, however, the court
relied heavily on the fact that the offenses in 2002, 2004, and
2006 were identical: unlawful possession of a firearm by a
convicted felon. Id. at 485. Moreover, the court reasoned
that Phillips‟s repeated possession of firearms was for a
common purpose: self-defense. Id.; see also § 1B1.3, cmt.
n.9(A) (encouraging sentencing courts to consider whether
there is a common purpose for two or more offenses).
Similarly, in Brummett, 355 F.3d 343, the Fifth Circuit
found relevant conduct where the defendant possessed four
firearms on three separate occasions within a nine-month
period. In Santoro, 159 F.3d 318, the Seventh Circuit also
held that the defendant‟s possession of an assault rifle, within
six to nine months prior to his arrest for unlawful possession
of a firearm, was part of a common course of conduct. Both
20
Brummett and Santoro drew on a third case, United States v.
Windle, for the proposition that a pattern of unlawfully
possessing firearms over a relatively short period of time met
the “same course of conduct requirement.” 74 F.3d 997,
1000-01 (10th Cir. 1996). None of these cases is applicable
to the facts here, but instead merely establishes that unlawful
possession of a firearm in one year may be relevant conduct
to unlawful possession of a firearm in another year. Kulick‟s
case is readily distinguishable because the two counts are for
different offenses, and there is no allegation or finding of a
common purpose.
c. Regularity
The regularity inquiry, which considers the number of
repetitions of the offenses, is not satisfied on these facts.
§ 1B1.3(a)(2) cmt. n.9(B). The government contends that
even though extortion was an isolated occurrence, regularity
is strong because possession of a firearm is a continuing
offense. See United States v. Hull, 456 F.3d 133, 146 (3d Cir.
2006) (Ackerman, J., dissenting); see also United States v.
Jackson, 479 F.3d 485, 491 (7th Cir. 2007); United States v.
Blizzard, 27 F.3d 100, 102 (4th Cir. 1994). In support of its
argument, the government relies on a First Circuit decision,
Powell, for the proposition that “the contemporaneous, or
nearly contemporaneous, possession of uncharged firearms is,
in this circuit, relevant conduct in the context of a felon-in-
possession prosecution.” Powell, 50 F.3d at 104. The
sweeping language in Powell permitted the defendant‟s prior
unlawful possession of a firearm to be relevant conduct for
his underlying unlawful possession of a firearm conviction
21
offense. It did not, however, permit an unrelated count to be
relevant conduct solely because of the continuous possession
of a firearm.
The District Court never explicitly found that Kulick
possessed a Beretta pistol throughout the twenty-seven month
period between the extortion and unlawful possession of a
firearm offenses. It suggested as much, however, by stating
that Kulick “maintained control of the firearms, including a
Beretta handgun, which according to witnesses he carried and
at least on one occasion used to threaten an employee.” (App.
at 100.) Kulick even conceded this point. (Blue Br. at 16-17
n.12, 25 n.21.) Regardless of whether Kulick‟s possession
was continuous for the entire twenty-seven months, we have
never held that continuous possession of a firearm is
sufficient to automatically render two offenses relevant
conduct, and we decline to do so now.
***
Kulick‟s extortion offense was not relevant conduct to
his unlawful possession of a firearm because the time interval
was considerable, there was very little similarity between the
offenses, and there was no regularity. Moreover, it would
eviscerate the effect and import of the Guidelines to permit an
enhancement on these facts. When “illegal conduct does
exist in „discrete, identifiable units‟ apart from the offense of
conviction, the Guidelines anticipate a separate charge for
such conduct.” Hill, 79 F.3d at 1482 (quoting Hahn, 960
F.2d at 909). As the extortion offense is not relevant conduct
under § 1B1.3(a)(2), the District Court committed clear error
22
by increasing Kulick‟s sentence through the § 2K2.1(c)(1)
cross-reference.7
7
The District Court was entitled to consider the
extortion offense as related conduct warranting a variance
from the guidelines under a § 3553(a) analysis. Indeed,
conduct that is in some way “related” to the offense conduct
need not be “technically covered by the definition of relevant
conduct” in order to be considered in a § 3553(a) analysis.
Baird, 109 F.3d at 864.
The government unpersuasively argues that the
District Court was entitled to grant an enhancement if it found
that extortion was merely related conduct, rather than relevant
conduct. It relies on our dicta in United States v. Harrison,
357 F.3d 314, 320 (3d Cir. 2004), for this proposition. This
argument fails for three reasons. First, the District Court did
not use the extortion offense as related conduct, but instead
“adopt[ed] the reasoning of the probation officer that if the
threat was made, 2B3.2 based on relevant conduct should
apply.” (App. at 80) (emphasis added). Second, as discussed
above, we hold that § 2K2.1(c)(1) cross-references are limited
to relevant conduct under § 1B1.3. Third, the government‟s
broad reading of Harrison is inaccurate. In Harrison, the
defendant pled guilty to transporting child pornography in
violation of 18 U.S.C. § 2252(a)(1). The district court applied
a two-level enhancement because “a computer was used for
the transmission of the material.” U.S.S.G. § 2G2.2(b)(5).
Based on the specific facts of that case, we held that the
enhancement was properly applied because the conduct fell
23
B. Variance and Departure
Although we have already determined that the District
Court committed clear error by increasing Kulick‟s offense
level through the § 2K2.1(c)(1) cross-reference, we consider
nonetheless Kulick‟s second contention to provide guidance
to the District Court on remand. Kulick argued at sentencing
that the District Court should grant either a downward
departure or a variance from the Guidelines‟ range on the
basis of his post-arrest alcohol treatment and long-term
charitable contributions. The District Court refused to grant
the downward departure or variance and instead sentenced
Kulick to a term of years at the low end of the imprisonment
range. Before this Court, Kulick argues that the District
Court did not formally rule on the departure request or, in the
alternative, did not adequately explain its decision not to vary
downward under § 3553(a). These arguments have little
squarely within § 2G2.2(b)(5). Id. at 319. In dicta, we
referenced Baird for the proposition that if a defendant pleads
guilty to one offense, a lesser offense that is a necessary
element of the larger offense may be related conduct, even if
it does not fit the Guidelines definition in § 1B1.3. Id. at 320.
Accordingly, we noted that Harrison‟s downloads of
pornography were related conduct because “[i]f Harrison had
not downloaded the images, he could not have trafficked in
them, and the two actions are therefore closely tied.” Id. The
dicta in Harrison cannot properly be read to suggest that
related conduct can always sustain an enhancement, and it
does not do so here.
24
merit. The record reveals that the District Court adequately
explained its decision to stay within the Guidelines.
Kulick first argues that the District Court did not
“formally rul[e] on the motions of both parties and stat[e] on
the record whether [it was] granting a departure and how that
departure affect[ed] the Guidelines calculation.” United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (quoting
United States v. King, 454 F.3d 187, 196 (3d Cir. 2006)). A
close examination of the record reveals that Kulick‟s counsel
actually requested a variance, rather than a departure:
I would like to move to -- I have touched
on one, and this is probably more of a variance
issue than a departure from the guidelines
issue, and I think when the Court is looking at
what is an appropriate sentence and when to
apply the guidelines here, look at the real, true
acceptance of responsibility that Mr. Kulick has
undertaken here.
Part of the problems, past problems in
Mr. Kulick‟s life are due to alcohol abuse and
dependency. This case, Your Honor, was a life-
changing event for Mr. Kulick.
Immediately after being arrested in this
matter and released, Mr. Kulick undertook
inpatient alcohol abuse treatment and therapy.
He maintains on it. I think you saw the letter
that we have attached from Dr. Colangelo that
25
talked about how he has maintained his sobriety
ever since this case started, and not only has he
maintained that sobriety, but he has made it a
point, as just mentioned to help out in any way
possible. That includes law enforcement. That
includes charitable involvement. That includes
a renewed commitment to his wife and two
young children. I think the Court should
consider that in deciding whether this is a
typical case.
Another ground for a variance, Your
Honor, in addition to his alcohol rehabilitation
and charitable works and the cooperation is this,
is a very unusual felon in possession case.
(App. at 84-85) (emphasis added). Accordingly, the District
Court properly treated the argument as a request for a
variance rather than a departure.8
Kulick next argues that the District Court did not give
sufficient justification for its decision not to vary downward
under § 3553(a). This argument also fails. The District Court
8
Even if Kulick had requested a departure, “[w]e do
not have jurisdiction to review discretionary decisions by
district courts to not depart downward . . . [unless] the district
court‟s refusal to depart downward is based on the mistaken
belief that it lacks discretion to do otherwise.” Untied States
v. Jones, 566 F.3d 353, 366 (3d Cir. 2009) (quoting United
States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007)).
26
fully articulated the justification for Kulick‟s sentence. It
twice acknowledged Kulick‟s alcohol abuse treatment. First,
the court noted: “[t]he report that I have read is certainly
detailed, together with the statements by Mr. Moran and Mr.
Schwartz and yourself concerning with regard to [sic]
rehabilitating yourself from the problem and the struggles you
have with alcoholism.” (App. at 99-100.) Second, the court
stated, “[Kulick] has a history of great struggle with alcohol,
and he has done work at Clearbrook Manor and Father
Martin‟s Ashley in Maryland, and he‟s under the care and
counseling of Dr. Colangelo.” (Id. at 101.) Both of these
statements reveal that the District Court actively considered
Kulick‟s arguments for a downward variance based on his
post-arrest alcohol treatment.
In contrast to Kulick‟s alcohol abuse treatment, it is
unclear whether the District Court explicitly acknowledged
Kulick‟s charitable contributions at sentencing. The court
ambiguously remarked that, “[Kulick] has a history of great
struggle with alcohol, and he has done work at Clearbrook
Manor and Father Martin‟s Ashley in Maryland, and he‟s
under the care of Dr. Colangelo.” (Id.) (emphasis added).
Kulick argues that this statement was exclusively about his
alcohol abuse treatment at Clearbrook Manor. The
government contends that this statement was also a passing
reference to his charitable contributions to Clearbrook Manor.
(See PSR Objection Letter, Feb. 24, 2009, p. 5.) The fact that
this is ambiguous, however, is not dispositive.
A “court need not discuss every argument made by a
litigant if an argument is clearly without merit. . . . Nor must a
27
court discuss and make findings as to each of the § 3553(a)
factors if the record makes clear the court took the factors into
account in sentencing.” United States v. Cooper, 437 F.3d
324, 329 (3d Cir. 2006). Even though the District Court did
not explicitly and unambiguously reference the charitable
contributions, we believe it did not ignore any of Kulick‟s
arguments in favor of a downward variance.
Moreover, the Guidelines actually discourage a district
court from considering a defendant‟s charitable contributions.
According to § 5H1.11 of the Guidelines, charitable and
“similar prior good works are not ordinarily relevant in
determining whether a departure is warranted.” U.S.S.G.
§ 5H1.11. Therefore, while a district court is not forbidden
from considering the charitable contributions of a defendant,
it must find “that this factor existed to an exceptional degree
or, in some way, that makes the case different from the
ordinary case in which the factor is present.” United States v.
Serafini, 233 F.3d 758, 772 (3d Cir. 2000) (internal citations
omitted) (upholding departure based on extraordinary
charitable activity evidenced by numerous letters from
personal beneficiaries). Thus, the District Court had
substantial discretion to decide the appropriate weight, if any,
to give to evidence of Kulick‟s charitable donations. Id. The
District Court reasonably concluded that the charitable
contributions should be given little to no weight.
The remainder of the District Court‟s sentence
explained the reasons that the court did not believe a
downward variance was warranted. The court noted that
Kulick had “been in contact with the law on numerous
28
occasions,” came “from a better background, and should have
known better.” (App. at 102.) The court concluded that it
had taken into account “everything [Kulick] did with respect
to the charges that were placed in this matter.” (Id.) We find
that the District Court adequately considered all factors under
Section 3553(a) at the sentencing hearing.
IV.
For the foregoing reasons, we will vacate judgment of
sentence of the District Court and remand for further
proceedings. We find that the extortion offense was not
relevant conduct to Kulick‟s unlawful possession of a firearm
offense. Accordingly, Kulick should be resentenced using a
base offense level of 19, which corresponds to the unlawful
possession of a firearm offense.
29