United States v. Kulick

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.

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(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