United States v. Kulick
2010 U.S. App. LEXIS 26296
| 3rd Cir. | 2010Background
- Kulick pled guilty to unlawful possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)).
- PSR cross-referenced extortion to determine base offense level; extortion had a higher base level than firearm possession.
- Extortion occurred in 2005; unlawful firearm possession occurred in 2008.
- Plea agreement contemplated dismissal of Counts 2–4, including extortion.
- District Court adopted PSR and applied cross-reference to 23 despite government concession.
- On appeal, Court vacates sentence and remands for resentencing with base level 19 absent cross-reference
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2K2.1(c)(1) cross-reference was proper | Kulick contends cross-reference used extortion as relevant conduct | Kulick argues extortion not relevant conduct; cross-reference improper | Cross-reference improper; extortion not relevant conduct |
| Whether the denial of a downward departure/variance was adequately explained | Kulick argues court failed to formally rule or justify variance/departure | District Court adequately considered factors and treated request as variance | District Court adequately explained its consideration; remand for resentencing |
Key Cases Cited
- United States v. Hill, 106 F.3d 1025 (3d Cir. 1997) (three-prong test for same course of conduct; emphasis on substantial factors)
- United States v. Baird, 109 F.3d 856 (3d Cir. 1997) (conduct forming basis of dismissed counts may be considered for relevant conduct)
- Jansen v. United States, 369 F.3d 237 (3d Cir. 2004) (groupable offenses; use of § 1B1.3(a)(2) when both (a)(1) and (a)(2) apply)
- United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994) (limits cross-references to relevant conduct under § 1B1.3)