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United States v. Sulik

United States Court of Appeals, Sixth Circuit

July 3, 2019

United States of America, Plaintiff-Appellee,
Scott W. Sulik, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:18-cr-00019-1-Danny C. Reeves, District Judge.

         ON BRIEF:

          Kevin M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

          Charles P. Wisdom, Jr., Andrew T. Boone, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

          Before: BOGGS, MOORE, and STRANCH, Circuit Judges.



         Scott Sulik pleaded guilty to cyberstalking after he sent threatening emails to a member of the United States Congress. The only question his appeal presents is whether his crime was motivated by the victim's status as a government officer, thereby triggering a six-level enhancement under United States Sentencing Guideline (USSG) § 3A1.2. Because the district court did not clearly err in concluding that it was, we AFFIRM.

         In September 2017, a member of the House of Representatives made a public statement calling General John Kelly, then serving as White House Chief of Staff, a "disgrace to the uniform he used to wear." The statement was made in the context of an ongoing debate about federal immigration policy. In national news coverage of the interaction, the Representative highlighted what he considered General Kelly's unprincipled stance regarding the "dreamers," immigrants brought to this country as children. Media commentators pointed out that the Representative had never served in the military, while General Kelly had both served and lost a son in Afghanistan.

         When Sulik learned about the comment, he sent the Representative a series of threatening emails. He wrote, for example, "You put your family at risk," "Marines are loyal to their Generals, not low life parasite politicians like you," and "What are you going to do before I erase you?" He later admitted that he intended to harass and intimidate the Representative and pleaded guilty to one count of cyberstalking, in violation of 18 U.S.C. § 2261A(2).

         In the plea agreement, Sulik reserved the right to object to a proposed six-level enhancement for a crime "motivated by" the victim's status as a government officer. See USSG § 3A1.2(a)-(b). At sentencing, he did so, arguing that he was "a former Marine . . . outraged about a statement about a former Marine who had lost a son," and that it did not matter "who had made the statement." During his allocution, Sulik explained that he "would die for [his] country and for any fellow Marine." He added:

I'm regretful of the whole situation that-you know, Kelly lost his son, and I always say a prayer for any fallen soldiers, and I take it to heart. And I'm disappointed that there are people in government who don't feel the same way I do when they're laying their lives on the line, or they lose a son or daughter. And I don't mean that in a political way. I'd be willing to take a polygraph test, and it wasn't political.

(R. 38, Sentencing Tr., PageID 159) The district court deemed the Government's proof with regard to the enhancement "barely sufficient" but ultimately overruled Sulik's objection. With a resulting base offense level of 23 and the lowest criminal history category, Sulik's advisory Guidelines range was 46 to 57 months of imprisonment. The district court imposed a sentence of 48 months. Without the six-level enhancement, Sulik's range would have been 24 to 30 months.

         The only issue on appeal is whether imposition of the enhancement was warranted. The so-called "official victim" enhancement applies if (1) the victim is a current or former "government officer or employee," or an immediate family member, and (2) "the offense of conviction was motivated by such status." USSG § 3A1.2(a). There is no dispute that the recipient of Sulik's emails, a member of the House of Representatives, qualifies as a government officer; the question is why Sulik sent his emails. Motivation is ultimately a question of fact. See Hoard v. Sizemore, 198 F.3d 205, 218 (6th Cir. 1999) (rejecting, in the context of a § 1983 suit, "an attempt to transform the factual issue of motivation into the legal question of objective reasonableness"); see also United States v. Hoff, 767 Fed.Appx. 614, 624 (6th Cir. 2019). We therefore review the district court's factual determination that Sulik was motivated by the Representative's official status for clear error and any legal conclusions regarding the Guidelines de novo. See United States v. Susany, 893 F.3d 364, 366-67 (6th Cir. 2018).

         We have previously explained that the victim's official status need not be the sole motivation for the offense. See United States v. Hopper, 436 Fed.Appx. 414, 429 (6th Cir. 2011) (citing United States v. Abbott, 221 Fed.Appx. 186, 189 (4th Cir. 2007)). As the Fourth Circuit put it, "[a] person who kidnaps and ransoms an official cannot avoid the enhancement by claiming that he only did it for the money." Abbott, 221 Fed.Appx. at 189. Thus, we rejected a defendant's argument that he solicited a friend to kill an FBI agent who was to testify against the defendant because he sought "to eliminate witnesses in general." United States v. Talley, 164 F.3d 989, 1003 (6th Cir. 1999). Although we credit Sulik's ...

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