United States v. Calloway
Criminal No. 2017-0089
D.D.C.Jul 28, 2021Background
- Defendant Clark Calloway had a history of violent, pro-ISIS, and racially/anti‑police posts and communicated threats to confidential informants; FBI began investigating in June 2016.
- Between March and April 2017 Calloway agreed to buy an AK‑47 (making installments and paying extra for full‑auto capability); on May 4, 2017 FBI delivered a disabled fully‑automatic AK‑47 and ammunition and arrested him.
- Calloway pleaded guilty (without a plea agreement) to three counts including possession of a firearm with intent to commit a felony; he admitted threatening to use the soon‑to‑be‑acquired AK‑47 to kill people.
- The Government sought (1) a four‑level enhancement under U.S.S.G. §2K2.1(b)(6)(B) and (2) three upward departures under §§5K2.9, 5K2.14, and 5K2.6, which would have raised the range from 37–46 months to 97–121 months.
- The Court granted the §2K2.1(b)(6)(B) enhancement and a two‑level upward departure under §5K2.14 (public endangerment), denied departures under §§5K2.9 and 5K2.6, and adopted a total offense level of 25 (Guidelines range 70–87 months, Criminal History III).
Issues
| Issue | Plaintiff's Argument (Gov.) | Defendant's Argument (Calloway) | Held |
|---|---|---|---|
| Applicability of U.S.S.G. §2K2.1(b)(6)(B) (intent to use firearm in connection with another felony) | Plea admissions plus social‑media posts and informant recordings show intent to commit assault with a dangerous weapon; apply 4‑level enhancement | No "substantial step" toward assault; AK‑47 was disabled/brief possession; First Amendment protects speech | Granted: Court finds plea admissions + contemporaneous threatening posts satisfy "knowledge, intent, or reason to believe" standard; no substantial‑step requirement under the Guideline |
| Upward departure under U.S.S.G. §5K2.9 (facilitate/ conceal another offense) | Depart because Calloway intended mass murder; §2K2.1 doesn’t distinguish seriousness of the contemplated felony | §2K2.1(b)(6)(B) already accounts for intent to commit another felony; departure would duplicate | Denied: §2K2.1(b)(6)(B) already addresses the defendant’s intent; §5K2.9 inappropriate here |
| Upward departure under U.S.S.G. §5K2.14 (national security/public safety endangered) | Depart two levels: intended ambush of law‑enforcement, chosen particularly dangerous weaponry and machete endangered public safety | Departure should apply only for danger present at the time of the act; brief possession undermines danger | Granted (2 levels): Court finds defendant was dangerous at time of offense (armed, intent to assault), placing the case outside the Guidelines’ heartland |
| Upward departure under U.S.S.G. §5K2.6 (weapon/dangerous instrumentality) | One‑level departure because possession of a machinegun + intent to commit mass murder created substantial risk of death | Guideline already accounts for machinegun possession; no evidence the weapon was "used" in commission of offense | Denied: §2K2.1’s base/offense level already accounts for machinegun possession and there was no use during the offense to justify §5K2.6 |
Key Cases Cited
- United States v. Bell, 795 F.3d 88 (D.C. Cir. 2015) (sentencing enhancements based on uncharged conduct evaluated under a preponderance standard)
- United States v. Flores, 995 F.3d 214 (D.C. Cir. 2021) (admissions in a plea colloquy can support sentencing enhancements)
- Blackledge v. Allison, 431 U.S. 63 (1977) (admissions in guilty pleas carry a strong presumption of verity)
- United States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999) (possession plus intent to use a weapon to facilitate assault supports enhancement)
- United States v. Hart, 324 F.3d 740 (D.C. Cir. 2003) (enhancement applied where firearm possession was factually and temporally related to another violent offense)
- United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) (use of speech as evidence of intent or motive is permissible)
- Wisconsin v. Mitchell, 508 U.S. 476 (1993) (speech may be considered in sentencing when used to establish motive or intent)
- Koon v. United States, 518 U.S. 81 (1996) (standards for upward departures and "heartland" analysis)
- United States v. Ogbeide, 911 F.2d 793 (D.C. Cir. 1990) (§5K2.9 departure inappropriate where guideline already accounts for the defendant’s intent)
- United States v. Singer, 825 F.3d 1151 (10th Cir. 2016) (departure where guideline did not account for factors that endangered the public)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (Guideline text controls over conflicting application notes)
- United States v. Riley, 376 F.3d 1160 (D.C. Cir. 2004) (sections such as 5K2.9 and 5K2.6 can "encourage" upward departures when they apply)
- United States v. Cole, 357 F.3d 780 (8th Cir. 2004) (same on encouraged departures)
- United States v. Hardy, 99 F.3d 1242 (1st Cir. 1996) (examples of departures where multiple weapons or dangerous use placed case outside the heartland)