United States v. Calloway

UNITED STATES OF AMERICA v. CLARK CALLOWAY, JR., Defendant.

Criminal Case No. 17-089 (RJL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Filed: July 28, 2021

July 27, 2021

MEMORANDUM OPINION

[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.¹ See Presentence Investigation Report ("PSR")[Dkt. # 36] at ¶¶ 7-9. For example, on public accounts, Calloway "pledged his support to" the terrorist group ISIS² and "'friended' several hundred . . . ISIS fighters and sympathizers[.]" Id. ¶¶ 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. Id. ¶¶ 7, 9. Not surprisingly, as a result of these postings, the Government opened an investigation of Calloway in June 2016. Id. ¶ 7.

During the Government's investigation, several Government informants contacted Calloway. See id. ¶¶ 10-19, 23-28. One of these Government informants—Confidential Source 2 or "CS2"—offered to sell Calloway an M-16 rifle. Id. ¶ 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. Id. ¶¶ 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 automaticAK-47. Id. ¶ 16. Calloway met up with CS3 two more times to make payments on the weapon and discuss the purchase. Id. ¶¶ 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." Id. ¶ 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 ¶ 23.w.³ He warned to "[n]ever underestimate a Marine corps veteran" and stated that he Was "ready to slaughter these cave dwellers." See id. ¶¶ 23.t, 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 ¶¶ 19, 28. Calloway was arrested and confessed shortly thereafter. Id. ¶¶ 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." Id. ¶ 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

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(o) & 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 FourthSupplemental 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,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." Id. 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 "reçeive[d] a copy of the indictment" and pled guilty to the "three counts" in theindictment, including possession of a firearm with intent to commit a felony. Plea Trans. at 9:1-5, 13:7-9. When asked if he was "pleading guilty because you are guilty," Calloway answered "Yes." Id. 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." (...