On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable James M. Munley (D.C. No. 08-cr-00168)
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: AMBRO, FISHER and GREENBERG, Circuit Judges.
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).*fn1 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 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.*fn2 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 government requested that the District Court depart downward two levels, to level 21,*fn3 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.
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 ...