United States of America v. Clark Calloway , J R .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2023 Decided March 5, 2024
No. 21-3057
UNITED S TATES OF A MERICA,
APPELLEE
v.
C LARK C ALLOWAY , J R .,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cr-00089-1)
Rosanna M. Taormina, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Chrisellen R.
Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: M ILLETT and WALKER , Circuit Judges, and
GINSBURG, Senior Circuit Judge.

-- 1 of 9 --

2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge:
I. Introduction
Clark Calloway pleaded guilty to several firearms offenses
in connection with his acquisition of a fully automatic AK-47
from an FBI confidential source. At sentencing, the district
court departed upward after calculating his total offense level
under the U.S. Sentencing Guidelines, finding Calloway had
seriously risked death or injury to others.
The appellant challenges the district court’s departure, ar-
guing that the inoperability of the gun he received made signif-
icant endangerment of the public impossible and that the depar-
ture was duplicative of a separate sentencing enhancement the
court applied. We disagree on both points and affirm the judg-
ment of the district court.
II. Background
Appellant Clark Calloway is a former U.S. Marine who,
following his discharge, was convicted of felony aggravated
assault and of misdemeanor assault involving domestic vio-
lence. In about 2014, Calloway began posting anti-white and
anti-police messages on Facebook. Calloway’s posts tended to
be violent and extreme; some of them expressed strong support
for the Islamic State (ISIS) terror group.
The Federal Bureau of Investigation began investigating
Calloway in 2016. It discovered he had “friended” several hun-
dred suspected ISIS fighters and sympathizers and had joined
many Facebook groups associated with ISIS. In some posts
Calloway advocated jihad and the establishment of an Islamic

-- 2 of 9 --

3
caliphate, as declared by ISIS. Calloway’s posts pledged sup-
port to ISIS and its leader, urged others to engage in mass vio-
lence, advocated violence against police officers, and spoke of
revolution against whites.
In early 2017, an FBI confidential source contacted
Calloway and said he could procure guns for him. Calloway
expressed interest in obtaining an AK-47. After some discus-
sion, Calloway agreed to buy a fully automatic AK-47 from the
confidential source for $250. Calloway then made further vio-
lent Facebook posts, such as:
• “Warning: war is imminent! I have prepared all my
life for this! Most of you could never even fathom the
preparation entailed for this precaution.”
• “When this war comes, I’m going on a killing/cannibal
spree!”
• “150 push-ups! 50 pull-ups! Ak in [sic] route! Ma-
chete on deck! I’m slaughtering anybody that ain’t
Muslim in these last days.”
• “I’m ready to slaughter these cave dwellers.”
• “Ak-47! Remember this post.”
• “Somebody should shoot that cracker cop that killed the
young Black boy in Texas. These crackers kill a
Melanininated [sic] man every week. It’s time that we
start killing them.”
Calloway paid the confidential source for the gun in late
April 2017. The FBI gave the source a fully automatic AK-47
that it had made inoperable. On May 4, the source told
Calloway to come pick up the weapon at the source’s apartment

-- 3 of 9 --

4
in the District. After Calloway arrived and took possession of
the gun, FBI agents entered the apartment and arrested him. In
its subsequent search of Calloway’s apartment, the FBI found
a machete.
After unsuccessfully moving to dismiss his charges,
Calloway agreed to plead guilty to: (1) one count of unlawful
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1); (2) one count of illegal possession of a machine
gun, in violation of § 922(o); and (3) one count of interstate
transportation of a firearm with intent to commit a felony, in
violation of § 924(b). As part of the last charge, Calloway ad-
mitted he had acquired the AK-47 with the intent to commit
assault with a dangerous weapon, in violation of D.C. Code
§ 22-402.
At sentencing, the Government asked the district court to
apply the following adjustments when calculating Calloway’s
total offense level under the U.S. Sentencing Guidelines:
1.) A four-level increase in the base offense level under
U.S.S.G. § 2K2.1(b)(6)(B) for having “used or possessed
any firearm or ammunition in connection with another fel-
ony offense; or possessed or transferred any firearm or am-
munition with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another
felony offense”;
2.) A two-level upward departure in the total offense level un-
der § 5K2.9 for having “committed the offense in order to
facilitate or conceal the commission of another offense”;
3.) A two-level upward departure under § 5K2.14 because
“national security, public health, or safety was signifi-
cantly endangered”; and

-- 4 of 9 --

5
4.) A one-level upward departure under § 5K2.6 because
“a weapon or dangerous instrumentality was used or pos-
sessed in the commission of the offense.”
The district court granted in part and denied in part the
Government’s requests. It agreed to apply the
§ 2K2.1(b)(6)(B) “connection with another felony” enhance-
ment. Of the three requested upward departures, however, the
court agreed to apply only the § 5K2.14 departure for “signifi-
cantly endanger[ing]” public safety. The district court found
that Calloway had been “dangerous at the time of [his] offense”
and therefore warranted the departure:
I find that this two-level upward departure is ap-
propriate in this case. . . . 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 ma-
chete that he indicated could play a role in this
attack. The dangerous nature of the defendant
at the time of the offense — being armed with
multiple weapons that he intended to use in car-
rying out an attack — created a serious risk that
multiple individuals could have been killed or
injured. I find that this situation presented a se-
rious threat to public safety that takes this case
outside of the Guidelines’ heartland.
The Guidelines do not adequately account for
this risk. While the 2K2.1(b)(6) enhancement
accounts for Calloway’s intent to commit a fel-
ony, it does not consider the serious risk stem-
ming from the particular felony Calloway in-
tended to commit in this case. Thus, I find that
two additional points are warranted to reflect

-- 5 of 9 --

6
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.” True enough:
the Guideline is written in the past tense — i.e.,
“was significantly endangered” — suggesting
that the Court should not consider the “future
dangerousness of the defendant.” But I find that
Calloway was dangerous at the time of the of-
fense, when he was armed and had the intent to
commit assault with a dangerous weapon.
(Citations and footnote omitted).
After applying the four-level enhancement under
§ 2K2.1(b)(6)(B) and the two-level upward departure under
§ 5K2.14, the district court set Calloway’s Guidelines sentenc-
ing range at from 70 to 87 months.* It sentenced him to 84
months in prison, to be followed by three years of supervised
release.
Calloway challenges only the district court’s decision to
depart upward under § 5K2.14. Calloway’s Guidelines sen-
tencing range prior to any departure was from 57 to 71 months.
* U.S.S.G. § 5K2.14 identifies endangering public safety as an
“aggravating circumstance” “the Commission may have not
adequately taken into consideration in determining the applicable
guideline range[.]” U.S.S.G. § 5K2.0(a)(1)-(2). Accordingly,
contrary to the district court’s characterization, the resulting sentence
was no longer a “Guidelines” sentence.

-- 6 of 9 --

7
III. Standard of Review
When reviewing a sentence imposed by the district court,
“we review purely legal questions de novo, review factual find-
ings for clear error, and give due deference to the district
court’s application of the Guidelines to the facts.” United
States v. Flores, 912 F.3d 613, 618 (D.C. Cir. 2019) (cleaned
up).
IV. Discussion
We affirm the district court’s decision to depart upward
under U.S.S.G. § 5K2.14. When a court of appeals reviews a
sentence, it must “accept the findings of fact of the district court
unless they are clearly erroneous.” 18 U.S.C. § 3742(e). That
standard requires us to affirm the district court’s findings “un-
less we are ‘left with the definite and firm conviction that a
mistake has been made.’” United States v. Brockenborrugh,
575 F.3d 726, 738 (D.C. Cir. 2009) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
In this case, the district court departed upward under
U.S.S.G. § 5K2.14 based upon its finding of fact that
“Calloway was dangerous at the time of the offense, when he
was armed and had the intent to commit assault with a danger-
ous weapon.” The court also found that “the dangerous nature
of the defendant at the time of the offense . . . created a serious
risk that multiple individuals could have been killed or in-
jured.”
There is no clear error in these findings. The record
demonstrates that in the weeks leading up to his purchase of the
AK-47, Calloway put many posts on Facebook speaking of pre-
paring for and imminently carrying out violent attacks. The
messages Calloway exchanged with the FBI’s confidential
source also spoke of carrying out violent acts once he had the

-- 7 of 9 --

8
gun. Some of his posts, including several made the day before
he received the AK-47, spoke of killing police officers and
others. Calloway also had a machete, which he mentioned in
connection with the AK-47 and his intention of “slaughtering”
non-Muslims, and he had a demonstrated history of violent as-
saults. Viewing these facts together with the other evidence in
the record, we are not left with the “definite and firm conviction
that a mistake has been committed” needed to conclude the dis-
trict court’s findings of fact were clearly erroneous.
Brockenborrugh, 575 F.3d at 738 (quoting U.S. Gypsum Co.,
333 U.S. at 395).
Calloway argues the inoperable nature of the AK-47 made
it factually impossible for him significantly to have endangered
the public, therefore rendering U.S.S.G. § 5K2.14 inapplicable
to him. This argument, however, rests upon the flawed premise
that the district court based its factual findings solely upon
Calloway’s possession of the AK-47. The district court’s de-
cision directly refutes this premise. In explaining its findings,
the court stated that Calloway “also possessed a machete that
he indicated could play a role in [his] attack.” It also mentioned
the threatening statements Calloway repeatedly made, as well
as his admitted intent to use the AK-47 to commit a murderous
attack. Each of these justifications finds ample support in the
record. In light of the district court’s factual findings regarding
significant endangerment of the public and the supporting evi-
dence in the record, we reject Calloway’s argument that the
court erred in departing upward under U.S.S.G. § 5K2.14.
We also reject Calloway’s assertion that the district court’s
upward departure under § 5K2.14 was duplicative of its en-
hancement under § 2K2.1(b)(6)(B). As the district court ex-
plained, it applied the § 2K2.1(b)(6)(B) enhancement solely
because Calloway intended to use the AK-47 in connection
with another felony. Meanwhile, the § 5K2.14 departure was

-- 8 of 9 --

9
based solely upon the significant danger he posed to the public
at the time of the offenses. Therefore, there was no duplication
in the court’s decisions raising Calloway’s Guidelines range.
V. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.

-- 9 of 9 --