United States v. Calloway ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Defendant.
UNITED STATES OF AMERICA )
)
V. ) Criminal Case No. 17-089 (RJL)
)
CLARK CALLOWAY, JR., )
)
)
MEMORANDUM OPINION
July ZZ 2021 [Dkt. # 39]
This is yet another example of a case where the United States (“the Government”)
seeks to use uncharged conduct to dramatically increase a defendant’s base offense level
and sentencing range (i.e., offense level 19 for a range of 37-46 months) through the use
of an enhancement and upward departures under the United States Sentencing Guidelines
(“the Guidelines”) (i.e. offense level 28 for a range of 97-121 months). See Government’s
Sentencing Memorandum and Motion to Depart Upward from Guideline Range (“Gov.
Mot.’) [Dkt. ## 38, 39]. For the following reasons, I will GRANT in part and DENY in
part the Government’s request.
STATEMENT OF FACTS
Defendant Clark Calloway (“Calloway”) has had a lengthy history of making highly
inflammatory statements on social media.' See Presentence Investigation Report (“PSR”)
' T adopt without change the factual findings of the Probation Office’s Presentence
Investigation Report (“PSR”) [Dkt. # 36] contained in paragraphs 6-20 and 23-29.
Calloway objected to paragraphs 6 through 20 of the report, arguing that it was
[Dkt. # 36] at {§ 7-9. For example, on public accounts, Calloway “pledged his support to”
the terrorist group ISIS* and “‘friended’ several hundred . . . ISIS fighters and
sympathizers[.|” Jd. §§ 7-8. He has also expressed support for violent action—support
which ranged from sharing “pictures associated with jihad and terrorism” to more sinister
statements, such as urging others to engage in mass violence against racial groups and
police officers. Jd. J§] 7,9. Not surprisingly, as a result of these postings, the Government
opened an investigation of Calloway in June 2016. Jd. § 7.
During the Government’s investigation, several Government informants contacted
Calloway. See id. J§ 10-19, 23-28. One of these Government informants—Confidential
Source 2 or “CS2”—offered to sell Calloway an M-16 rifle. /d. § 12. Calloway initially
declined, noting that he was interested but did not have enough money to purchase the
weapon. See id. Thereafter, a different informant—Confidential Source 3 or “CS3”—
offered to sell Calloway an AK-47 on March 31, 2017. Jd. §§[ 14-15. This time, Calloway
took the informant up on the offer, agreeing to pay for the AK-47 in two installments. See
id. Subsequently, Calloway even agreed to pay an extra $50 to receive a fully automatic
inappropriate to include facts other than those contained in the defendant’s Statement in
Support of His Guilty Plea. See PSR at 29. However, Calloway lodged no objections to
the factual accuracy of these paragraphs, and they recount Calloway’s online activity and
conversations with confidential informants—facts which Calloway has expressly
represented that he does not dispute. See Defendant’s Response to the Government’s
Submission [Dkt. # 53] at J 3 (noting that the defendant does not dispute “the accuracy of
Mr. Calloway’s Facebook posts” or “statements attributed to Mr. Calloway when he was
being secretly recorded by the confidential informants”).
* “ISIS” refers to the Islamic State of Iraq and al Sham and is a foreign terrorist
organization. PSR { 7.
AK-47. Id. § 16. Calloway met up with CS3 two more times to make payments on the
weapon and discuss the purchase. Jd. 4] 17-18. Calloway made his final payment on April
28, 2017. Id. ¥ 18.
While Calloway was awaiting delivery of the AK-47, he continued to make
menacing statements—online and in conversations with CS3. For example, he told CS3
that he wanted to use the AK-47 on “crackers.” Jd. § 17. On social media, his messages
were equally alarming. For example, on April 30, Calloway wrote “Ak-47! Remember
this post.” Government’s Third Supplemental Sentencing Memorandum (“Gov. Third
Mem.”) [Dkt. # 51] at 7 23.w.2 He warned to “[nJever underestimate a Marine corps
veteran” and stated that he was “ready to slaughter these cave dwellers.” See id. [J 23.1,
23.u; see also id. § 23.aa (“Death to the European, fake, Jewish, imposters.”). On May 4,
2017, FBI agents delivered to Calloway a disabled fully automatic AK-47 and ammunition.
PSR 4 19, 28. Calloway was arrested and confessed shortly thereafter. Jd. JJ 19-20, 28.
Calloway continued his pattern of menacing statements following his arrest. For
example, he told Government agents that he needed the gun for a “race war” after initially
stating that he wanted it for “protection.” Jd. § 20. In prison, Calloway even told other
prisoners that he was planning to kill the FBI agents responsible for his arrest and continued
to express support for violent terrorist attacks. See Transcript of Evidentiary Hearing
(“Evidentiary Hearing Trans.”) [Dkt. # 69] at 18:9-19, 16:14-20.4
3 The defendant does not dispute the accuracy of these posts. See supra note 1.
4 T issued a bench ruling on June 16, 2021 finding credible the witness who offered
testimony regarding statements made by Calloway while he was incarcerated.
3
PROCEDURAL HISTORY
Calloway was indicted on May 9, 2017 and has been held in pretrial detention since
his arrest. On October 10, 2018, Calloway pled guilty, in front of my colleague Judge
Emmet Sullivan, to all three charges in the indictment: (1) Interstate Transportation of a
Firearm and Ammunition, 18 U.S.C. § 924(b), and Causing an Act to be Done, 18 U.S.C.
§ 2; (2) Unlawful Possession of a Firearm and Ammunition, 18 U.S.C. § 922(g)(1) & (9);
and (3) Illegal Possession of a Machine Gun, 18 U.S.C. §§ 922(0) & 924(a)(2). See
Indictment [Dkt. # 4]; see also Transcript of Change of Plea Proceedings Before the
Honorable Emmet G. Sullivan (“Plea Trans.”) [Dkt. #35] at 9:1-5, 24:2-13. Calloway did
so without the benefit of a plea agreement. See Plea Trans. at 3:15—19.
On January 10, 2019, the Government filed its sentencing memorandum and a
motion for an upward departure. See Gov. Mot. The Government sought one enhancement
and three upward departures that would cumulatively add nine points to Calloway’s total
offense level under the Guidelines. See id. Following this request, the parties have
submitted a slew of briefs disputing the proper Guidelines calculation. See Defendant’s
Sentencing Memorandum [Dkt. # 41] (Def. First Memo”); Government’s Supplemental
Memorandum in Aid of Sentencing [Dkt. # 44]; Defendant’s Supplemental Briefing on
Enhancements and Upward Departures (“Def. Second Memo”) [Dkt. # 45]; Government’s
Response to September 16, 2019 Order [Dkt. # 46]; Defendant’s Position on September
16, 2019 Order (“Def. Third Memo”) [Dkt. # 48]; Government’s Response to Defendant’s
Position September 16, 2019 Order [Dkt. # 50]; Gov. Third Mem. [Dkt. #51]; Defendant’s
Response to the Government’s Submission [Dkt. # 53]; Government’s Fourth
A
Supplemental Sentencing Memorandum [Dkt. # 57]; Government’s Fifth Supplemental
Sentencing Memorandum (“Gov. Fifth Memo”) [Dkt. # 70]; Defendant’s Supplemental
Sentencing Memorandum [Dkt. # 71-2].
Due to a judicial recusal, however, this case was transferred on May 18, 2020 from
Judge Sullivan to this Court prior to the sentencing taking place. On May 17, 2021, I held
an evidentiary hearing to take testimony from one of the Government’s witnesses about
the defendant’s threatening statements in front of his fellow inmates. On June 16, 2021, I
held another hearing to give the parties an opportunity to present their arguments as to the
enhancement and departures sought by the Government.
ANALYSIS
The Government in this case seeks to significantly increase Calloway’s Guidelines
sentence pursuant to the following Guidelines provisions: (1) a four-point enhancement
under section 2K2.1(b)(6)(B) for Calloway’s intent to use a firearm in connection with
another felony offense; (2) a two-point enhancement under section 5K2.9 for Calloway’s
intent to commit another offense; (3) a two-point enhancement under section 5K2.14 for
Calloway’s danger to public safety; and (4) a one-point enhancement under section 5K2.6
for Calloway’s use of a dangerous weapon in the commission of his offense. All told, the
Government’s requests would nearly triple the Guidelines range from 37-46 months to 97—
121 months.
Whenever the Government uses uncharged conduct to seek substantial sentencing
enhancements after a defendant has pled guilty, there is a significant risk to fundamental
fairness and, ultimately, to a defendant’s constitutional rights. See United States v. James,
5
2019 WL 2516413, at *2—*3 (D.D.C. June 18, 2019) (Leon, J.). Accordingly, this Court
must carefully assess whether the Government has fully satisfied each enhancement and
departure by a preponderance of the evidence. See United States v. Bell, 795 F.3d 88, 103—
04 (D.C. Cir. 2015).
A. Section 2K2.1(b)(6)(B) Enhancement — Intent for Use in Connection
With Another Felony Offense
Section 2K2.1(b)(6)(B) of the Sentencing Guidelines provide for a four-point
enhancement “[i|f the defendant . . . possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6)(B).
Here, Calloway pled guilty to an indictment that specifically alleged that he had
knowledge, intent, and reason to believe that the AK-47 would be used and possessed in
connection with another felony offense. In particular, the indictment alleges that Calloway
had both “an intent to commit an offense [with the firearm] punishable by imprisonment
for a term exceeding one year” and “knowledge and reasonable cause to believe that an
offense punishable by a term of imprisonment exceeding one year was to be committed
[with the firearm].” Indictment at 1-2. Indeed, the indictment specifies that the offense
punishable by a term of imprisonment exceeding one year is “Assault with a Dangerous
Weapon, in violation of 22 D.C. Code, Section 402.” Jd. at 2.
The plea colloquy in this case before Judge Sullivan likewise confirms that
Calloway admitted to having the very intent alleged in the indictment. Calloway confirmed
that he “receive[d] a copy of the indictment” and pled guilty to the “three counts” in the
indictment, including possession of a firearm with intent to commit a felony. Plea Trans.
at 9:1-5, 13:7—-9. When asked ifhe was “pleading guilty because you are guilty,” Calloway
answered “Yes.” Jd. at 10:20—22.
His guilty plea is of course strong evidence itself in support of the enhancement.
Indeed, concessions in a defendant’s guilty plea colloquy may alone establish a factual
basis to support a sentencing enhancement. See, e.g., United States v. Flores, 995 F.3d
214, 220, 223 (D.C. Cir. 2021) (upholding Guidelines calculation based on the defendant’s
admissions in his guilty plea); accord Blackledge v. Allison, 431 U.S. 63, 74 (1977)
(explaining that admissions in a guilty plea “carry a strong presumption of verity”); United
States v. Sidell, 553 F. App’x 619, 624 (7th Cir. 2014) (“A defendant’s admission in a plea
agreement, during the plea colloquy, or even at sentencing can remove a fact from dispute
since an admission is even better than a jury’s finding beyond a reasonable doubt.”
(citations and quotations omitted)). As such, I find Calloway’s admission here enough to
sufficiently support the enhancement the Government seeks.
The Government’s additional evidence—Calloway’s menacing statements—further
supports this admission. Particularly probative among these are Calloway’s statements
between March 31, 2017 and May 4, 2017—the time between his decision to purchase the
AK-47 and his acquisition of the gun. For example, he posted on social media: “Ak in
route! Machete on deck! I’m slaughtering anybody that ain’t Muslim in these last days.”
Gov. Third Mem. { 23.f. He warned “all military and combat veterans” to “[p]repare for
death.” Jd. § 23.1. He posted: “Soon the great killing will commence.” /d.§ 23.m. On
May 3—the day before he received the gun—he posted: “These cops still killing us, so,
by all means shoot back.” Jd. § 23.1.
Based on his plea colloquy admissions and his various internet postings, I find that
Calloway had the intent to commit assault with a dangerous weapon using the unlawfully
possessed AK-47. Indeed, Calloway himself made explicit the connection between the
indictment and these threatening statements in his plea colloquy, acknowledging that he
threatened to kill people with his soon-to-be-acquired AK-47 before admitting to having
the intent to commit assault with a dangerous weapon.” See Plea Trans. at 6:15-9:5. As
such, Calloway’s intent to commit assault with a dangerous weapon using the AK-47
constitutes the required “knowledge, intent, or reason to believe that [the firearm] would
be used or possessed in connection with another felony offense,” U.S.S.G. §
2K2.1(b)(6)(B), and I thus find the enhancement applicable
Calloway offers several counterarguments, but none are sufficient to overcome this
evidence. Principal among these is his contention that he never took a “substantial step”
toward committing assault with a dangerous weapon. See Def. Third Memo at 2. Not
surprisingly, this argument echoes the PSR, which notes that Probation disagreed with the
application of this enhancement because “the defendant did not take any substantial steps
toward committing ‘another felony offense[.]’”’® PSR at 28. This argument, however,
> While Calloway disputed one of the several threatening statements the government raised
during his plea, see Plea Trans. at 8:20—22, I do not find this dispute material in light of
Calloway’s other concessions.
° The PSR also contended that the “other offense” referenced in section 2K2.1(b)(6)(B)
could not be a “potential offense,” PSR at 28. But the text of the Guideline provides for
an enhancement if a defendant “possessed or transferred any firearm or ammunition with
8
misses the mark. Section 2K2.1(b)(6) does not require a “substantial step” by its plain
terms or in the accompanying application notes. Rather, the enhancement applies if there
is “knowledge, intent, or reason to believe” that a firearm will “be used or possessed in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Here, Calloway
clearly had the intent to use a firearm to commit another felony offense—a conclusion that
does not turn on the occurrence of a “substantial step.” Neither Calloway, nor the PSR,
cite a single case or otherwise advance an argument to support departing from the plain
text of the Guideline.’ See United States v. Hart, 324 F.3d 740, 745 (D.C. Cir. 2003)
(explaining enhancement should be applied in accordance with the plain language of the
Guideline). Defendant’s remaining arguments are even less persuasive.®
knowledge, intent, or reason to believe that it would be used or possessed in connection
with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). This clause
plainly encompasses offenses that have not yet taken place but that the defendant intended
to commit. See United States v. Bowie, 198 F.3d 905, 913 (D.C. Cir. 1999) (applying
enhancement for “possession of the weapon” combined with an “intent to use it to facilitate
his felony assault on [police] officers”).
7 The PSR likewise stresses the need for “a nexus between the firearm possessed by the
defendant and the other offense.” PSR at 28. Here, any nexus requirement is easily met
because Calloway procured the unlawful firearm with the intent to use it for the other
offense. In other words, the unlawful transportation and possession of the firearm was
“part of the same course of conduct or common scheme or plan” as the assault Calloway
planned to carry out with that firearm. See U.S.S.G. § 2K2.1 cmt. n.14(E); accord Bowie,
198 F.3d at 913 (intent to commit assault with unlawfully possessed firearm satisfied
enhancement); United States v. Hart, 324 F.3d 740, 744-46 (D.C. Cir. 2003) (homicide
committed with firearm months apart from arrest for unlawful possession was sufficiently
“factually and temporally related” for purposes of the enhancement).
® Calloway additionally contends that applying the enhancement would violate the First
Amendment. In Calloway’s view, considering as evidence his statements on social media
and in conversations with confidential informants amounts to “proscribing speech or
expressive conduct[.]” See Def. First Memo at 6-9. But Calloway’s speech is merely
being used as evidence of his intent, and the First Amendment “does not prohibit the
9
B. Upward Departures
In addition to the section 2K2.1(b)(6)(B) enhancement, the Government also seeks
three upward departures. In assessing whether to depart upward, this Court must first
determine whether this case falls outside “the Guidelines’ heartland” and is thus a “special,
or unusual, case[.]” Koon v. United States, 518 U.S. 81, 95 (1996) (citations and
quotations omitted). If so, “the court is authorized to depart if the applicable Guideline
does not already take [these special or unusual factors] into account.” Id. at 96. However,
evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”
United States v. Ring, 706 F.3d 460, 471 (D.C. Cir. 2013) (citing Wisconsin v. Mitchell,
508 U.S. 476, 489 (1993)) (quotations omitted).
Finally, Calloway argues that the AK-47 could not have facilitated assault with a dangerous
weapon because it was disabled and only briefly in his possession. See Def. First Memo
at 4. Please! This argument is too clever by half. The “facilitated, or had the potential of
facilitating” language in application note 4 was adopted in 2006 to clarify the phrase “in
connection with.” See U.S.S.G. Amend. 691 (explaining that “the amendment addresses a
circuit conflict pertaining to... the use of a firearm ‘in connection with’ burglary and drug
offenses.”). The inquiry is whether the defendant had knowledge, intent, or reason to
believe that the firearm would be used or possessed to facilitate or potentially facilitate
another felony offense. As explained above, Calloway intended to use the firearm to
facilitate assault with a dangerous weapon and is thus eligible for this enhancement. Even
to the extent there was a substantive difference between the Guideline and the application
note, the Guideline—which unambiguously incorporates a mens rea-based test and makes
no mention of the facilitation language—would control. See United States v. Winstead,
890 F.3d 1082, 1090-92 (D.C. Cir. 2018).
’ This standard specifically governs when departure factors are “encouraged.” Koon, 518
U.S. at 95-96. In this case, all three departures sought by the Government are enumerated
in the Guidelines and thus “encouraged” if the factor applies. See U.S.S.G. §
5K2.0(a)(2)(A); United States v. Rhodes, 145 F.3d 1375, 1382 (D.C. Cir. 1998) (citing
Koon, 518 U.S. at 94-95) (departures encouraged where Guidelines “give fairly clear
departure instructions” and provide that courts “may” depart); accord United States v.
Riley, 376 F.3d 1160, 1169 (D.C. Cir. 2004) (finding that sections 5K2.9 and 5K2.6
“encourage[] upward departure” when they apply); United States v. Cole, 357 F.3d 780,
784 (8th Cir. 2004) (same for section 5K2.14).
10
even where “the basis for [a] departure is taken into consideration in determining the
guideline range,” a departure may still be warranted “in an exceptional case” that involves
aggravating or mitigating factors far beyond those “ordinarily involved” in the offense
contemplated by the Guidelines. U.S.S.G. § 5K2.0(a)(3).
1. Section 5K2.9 — Intent to Commit Another Offense
Section 5K2.9 authorizes the Court to “increase the sentence above the guideline
range to reflect the actual seriousness of the defendant’s conduct” “[i]f the defendant
committed the offense in order to facilitate or conceal the commission of another
offense[.]” U.S.S.G. § 5K2.9. This departure “may be applied only in situations where the
guidelines for a particular offense do not adequately take into consideration the facilitation
or concealment of another offense.” United States v. Ogbeide, 911 F.2d 793, 796 (D.C.
Cir. 1990). The Government seeks a two-level upward departure under section SK2.9 on
the theory that Calloway was “intent on committing mass murder based on a twisted
ideology that sought to destroy our society” and thus the Guideline “does not sufficiently
take into account the serious risk and danger posed by the defendant.” Gov. Mot. at 22—
23.
This departure does not apply, however, in this case because the relevant
Guideline—section 2K2.1—already takes into account Calloway’s intent to commit
another offense. Specifically, the section 2K2.1(b)(6)(B) enhancement adds an additional
four points to account for Calloway’s intent to commit “another felony offense.” See
supra. Under similar circumstances, our Circuit held that a departure under section 5K2.9
for the commission of fraud was inappropriate where the defendant was charged with
1]
“intent to defraud” and thus “the sentence prescribed by the guidelines for that offense had
necessarily taken into consideration the fact that the offense would facilitate the crime of
fraud itself].]” Ogbeide, 911 F.2d at 796. The same reasoning applies in this case. The
sentence prescribed by the Guidelines has expressly taken into consideration Calloway’s
intent to commit another felony offense—the precise basis upon which the Government
seeks to invoke section 5K2.9.
The Government’s argument to the contrary does not pass muster. It contends that
section 2K2.1(b)(6)(B) treats all felonies similarly—i.e., grand larceny and attempted
murder each get four points—and thus section 5K2.9 allows the Court to depart upward
for intended offenses that carry “serious risk and danger[.]” Gov. Mot. at 22. But section
5K2.9 is specifically concerned with the defendant’s intent to commit another offense, not
the nature of that contemplated offense. Indeed, the glut of departures that do contemplate
the nature of the intended offense prove the point. For example, a departure may be
warranted if a defendant used a firearm to commit another felony offense and “death
resulted,” See U.S.S.G. § 5K2.1, or a defendant used a firearm to commit a felony that
involved taking someone hostage, see id. § 5K2.4, or—most pertinent here—the felony
offense would have caused significant danger to the public or involved a particularly
dangerous weapon, see id. §§ 5K2.14, 5K2.6. In each of these cases, it is possible that the
“[Jother felony offense” contemplated by section 2K2.1(b)(6)(B) does not account for these
factors related to risk and danger. See, e.g., United States v. Thomas, 723 F. App’x 60, 62
(2d Cir. 2018) (applying dangerous weapon departure because it targeted conduct “separate
from the general conduct targeted by § 2K2.1(b)(6)(B)’”). These departures stand in stark
12
contrast to section 5K2.9, which—in this case—contemplates a departure for the precise
conduct already accounted for in section 2K2.1(b)(6)(B): intending to commit another
felony offense.
Finally, I decline to depart upward under this provision using section 5K2.0(a)(3).
Section 5K2.0(a)(3) authorizes departure “even though the circumstance that forms the
basis for the departure is taken into consideration in determining the guideline range[] if
the court determines that such circumstance is present in the offense to a degree
substantially in excess of, or substantially below, that which ordinarily is involved in that
kind of offense.” U.S.S.G. § 5K2.0(a)(3). Calloway’s criminal intent is not present “to a
degree substantially in excess of” that normally present when the section 2K2.1(b)(6)(B)
enhancement applies. Rather, by the Government’s own telling, the Guideline “does not
sufficiently take into account the serious risk and danger posed by the defendant.” Gov.
Mot. at 22 (emphasis added). These factors are thus more appropriately addressed by
Guidelines that relate to risk and danger. See infra.
2. Section 5K2.14 — Endangering the Public
Section 5K2.14 authorizes the Court to “depart upward to reflect the nature and
29 66
circumstances of the offense” “[i]f national security, public health, or safety was
significantly endangered[.]” U.S.S.G. § 5K2.14. The Government seeks a two-level
upward departure under section 5K2.14 because “the defendant was trying to kill law
99 66.
enforcement officers,” “the defendant’s crime and intent was harm to society and
intimidate [sic] specific communities,” and because the defendant chose a particularly
13
dangerous weapon: “a fully automatic AK-47 assault weapon with an extended
ammunition clip.” Gov. Mot. at 23—25 (emphasis omitted).
I find that this two-level upward departure is appropriate in this case. As I concluded
above, Calloway intended to use a fully automatic AK-47 with a high-capacity magazine
to commit assault with a dangerous weapon. He also possessed a machete that he indicated
could play a role in this attack. See Gov. Third Mem. { 23.f (‘Ak in route! Machete on
deck!”), The dangerous nature of the defendant at the time of the offense—being armed
with multiple weapons that he intended to use in carrying out an attack—created a serious
risk that multiple individuals could have been killed or injured. I find that this situation
presented a serious threat to public safety that takes this case outside of the Guidelines’
heartland. See U.S.S.G. § 2K2.1 cmt. n.11(D) (noting that “[a]n upward departure may be
warranted” where “the offense posed a substantial risk of death or bodily injury to multiple
individuals”).
The Guidelines do not adequately account for this risk. While the 2K2.1(b)(6)
enhancement accounts for Calloway’s intent to commit a felony, it does not consider the
serious risk stemming from the particular felony Calloway intended to commit in this case.
See United States v. Singer, 825 F.3d 1151, 1158 (10th Cir. 2016) (applying departure
where Guideline did not take into account factors that endangered the public). Thus, I find
that two additional points are warranted to reflect the serious danger to public safety posed
by Calloway.
Calloway argues that this departure may apply only where the “conduct endangered
public welfare at the time of the act|.|” Def. Second Memo at 9 (emphasis in original).
14
True enough: the Guideline is written in the past tense—ie., “was significantly
endangered”—suggesting that the Court should not consider the “future dangerousness of
the defendant.” United States v. Moses, 106 F.3d 1273, 1278 (6th Cir. 1997) (citations
omitted). But I find that Calloway was dangerous at the time of the offense, when he was
armed and had the intent to commit assault with a dangerous weapon.!°
3. Section 5K2.6 — Dangerous Weapon
Section 5K2.6 authorizes the Court to “increase the sentence above the authorized
99 66
guideline range” “[i]f a weapon or dangerous instrumentality was used or possessed in the
commission of the offense[.]” U.S.S.G. § 5K2.6. “The extent of the increase ordinarily
should depend on the dangerousness of the weapon, the manner in which it was used, and
the extent to which its use endangered others.” Jd. The Government seeks a one-level
departure under section 5K2.6 because “possessing a machine gun with a large capacity
magazine (as well as a machete) with the intent to commit mass murder of law enforcement
officers by ambush, demonstrates possession of the weapon carried with it a substantial
risk of death[.]” Gov. Mot. at 21—22.
I decline to depart upward under this provision. To be sure, Calloway possessed a
dangerous weapon—a fully-automatic AK-47—during the commission of the offense.
However, the Guidelines already account for Calloway’s possession of a machinegun. See
'0 Calloway also argues that he did not present a danger because he only momentarily
possessed the weapon before law enforcement—which was on scene—arrested him. See
Def. Second Memo at 10. But that contention gets the facts backwards. Calloway was
arrested after only briefly possessing an unlawful weapon because he presented a danger
to public safety.
15
U.S.S.G. § 2K2.1(a)(3)(A)Gi) (applying base offense level based on involvement of a
“firearm that is described in 26 U.S.C. § 5845(a)”); 26 U.S.C. § 5845(a)(6) (including “a
machinegun” in definition of “firearm’’). Application of 5K2.6 is thus inappropriate for
mere possession of the firearm, without more. See United States v. Elliot, 797 F. App’x
750, 754 (4th Cir. 2019) (declining to apply section 5K2.6 for defendant’s use of Molotov
cocktails where the statute of conviction and corresponding Guideline “comprehend[ed]
the use of Molotov cocktails”). In addition, the Government has not proffered any evidence
that Calloway “used” the weapon “in the commission of the offense” in a way that would
bring his conduct outside the heartland of the Guidelines, because he didn’t!
The Government’s argument for applying this departure fails to overcome this
deficiency. The only factor cited by the Government beyond possessing a proscribed
firearm is Calloway’s “intent to commit” heinous crimes in the future using dangerous
weapons.'! See Gov. Mot. at 21. But this conduct—(1) intent to commit an attack (2) that
would endanger the public—is already accounted for by the section 2K2.1(b)(6)
enhancement and the section 5K2.14 departure respectively. Moreover, the Government
fails to explain how the intent to commit a future crime constitutes use or possession “in
the commission of the offense.”!? U.S.S.G. § 5K2.6 (emphasis added). I thus find this
While the Government also mentions a “large capacity magazine” and “machete,” Gov.
Mot. at 21, I likewise do not find that mere possession of these items during the commission
of the offense is so extraordinary as to justify a departure. Moreover, I find it sufficient
that the dangerous nature of these items—along with the firearm—was accounted for in
the 5K2.14 departure. See supra.
'2 Indeed, both cases cited by the Government in support of this departure cited factors at
the time of the offense that were not fully accounted for in the Guidelines and brought the
case beyond mere possession. See United States v. Serrano, 392 F. App’x 358, 359 (Sth
16
departure inapplicable and aimed at conduct that has already been accounted for through
other Guidelines provisions.
Cc, Final Guidelines Calculation
For all of the above reasons, I conclude that the total offense level in this case is 25.
I start by adopting the PSR’s uncontested conclusion that the base offense level is 19 after
subtracting three points for acceptance of responsibility. See PSR §§ 35-44; accord
U.S.S.G. §§ 2K2.1(a)(3); 3E1.1(a), (b). As this opinion indicates, I then add an additional
four points under the section 2K2.1(b)(6)(B) enhancement and an additional two points
under the section 5K2.14 upward departure, bringing the total offense level to 25. Thus,
with a criminal history category of III, see PSR 54, the Guidelines range is 70-87 months
imprisonment. I will give the parties an opportunity at sentencing to present arguments on
whether the 18 U.S.C. § 3553(a) factors support a variance in this case.
Cir. 2010) (“[T]he substantial distinction between mere possession of any weapon and the
possession of numerous semi-automatic weapons, some of them loaded with large amounts
of ammunition in close proximity to small children, took this case out of the heartland[.}”);
United States v. Hardy, 99 F.3d 1242, 1249 (1st Cir. 1996) (“The use and/or indiscriminate
disposal of multiple weapons which took place in this case surely elevated their
dangerousness well above the level associated with the simple possession of a single
firearm.”).
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CONCLUSION
For the foregoing reasons, the Government’s Motion for Upward Departure [Dkt. #
39] is GRANTED as to the section 2K2.1(b)(6)(B) enhancement and the section 5K2.14
upward departure and DENIED as to the section 5K2.9 and section 5K2.6 upward
departures.
SO ORDERED. \
Pata dPheng
RICHARD J. FEON
United States District Judge
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