Circuit Requires Relevant Conduct to Cross-Reference

Kulick pled guilty to unlawful possession of a firearm. In exchange, the government dismissed other charges, including an extortion charge, dating from more than a year earlier. Nonetheless, the district court cross-referenced to the extortion guideline at sentencing, resulting in application of a guideline four levels higher than would have applied for the unlawful possession of a firearm. The Third Circuit reversed. See United States v. Kulick, No. 09-3833, http://www.ca3.uscourts.gov/opinarch/093833p.pdf.

In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would "eviscerate the effect and import of the Guidelines to permit an enhancement on these facts."

Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court "actively considered" the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines' discouragement of departures on this ground and Cooper's holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.