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.
M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
Charles P. Wisdom, Jr., Andrew T. Boone, UNITED STATES
ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: BOGGS, MOORE, and STRANCH, Circuit Judges.
B. STRANCH, CIRCUIT JUDGE.
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.
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.
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. §
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
(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.
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.
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