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Tharpe v. United States

United States District Court, W.D. Tennessee, Eastern Division

August 13, 2019

EDWARD THARPE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE

         Petitioner, Edward Tharpe, has filed, through counsel, a motion to vacate, set aside, or correct his sentence (the “Petition”), pursuant to 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 1.) For the reasons that follow, the Petition is DENIED.[1]

         In September 2008, Tharpe pleaded guilty in the United States District Court for the Western District of Tennessee to aiding and abetting bank robbery, in violation of 18 U.S.C. § 2113, and to the use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). (United States v. Tharpe, No. 1:08-cr-10038-JDB-1 (“No. 1:08-cr-10038-JDB-1”), D.E. 64.) He was determined to be subject to an increase in his offense level under the career offender provision, § 4B1.1, of the United States Sentencing Commission Guidelines Manual (“Guidelines” or “U.S.S.G.”).[2] (See Presentence Report (the “PSR”) at ¶ 23.) His career offender status was based on three Tennessee escape convictions. (PSR at ¶ 23.)

         In July 2009, the Court imposed a sentence of 243 months on the bank robbery count, and eighty-four months on the firearm count, to be served consecutively to the bank robbery sentence. (No. 1:08-cr-10038-JDB-1, D.E. 95.) Tharpe's direct appeal was dismissed. (Id., D.E. 119.)

         On June 16, 2016, the inmate filed his Petition, through counsel, challenging the use of his Tennessee escape convictions to qualify him a career offender after Johnson v. United States, 135 S.Ct. 2551 (2015). He filed, pro se, a supplement to the Petition (the “Supplement”) on March 4, 2019, arguing that his “sentence is unlawful due to Johnson being made retroactive to case[s] upon collateral review as stated in ‘Welch.'”[3] (D.E. 10 at PageID 42.)

         “[A] defendant is a career offender if (1) [he] was at least eighteen years old at the time of the instant offense, (2) the instant offense is either a crime of violence or a controlled-substance offense, and (3) ‘the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.'” United States v. Alexander, 686 Fed.Appx. 326, 327 (6th Cir. 2017) (quoting U.S.S.G. § 4B1.1(a)).

         At the time of Tharpe's sentencing, the Guidelines defined a “crime of violence” as any crime punishable by over one-year imprisonment that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

         The provision set forth in subsection (1) is known as the “elements clause, ” and the first part of subsection (2) is referred to as the “enumerated offenses clause.” United States v. Morris, 885 F.3d 405, 409 (6th Cir. 2018). The language “or otherwise involves conduct that presents a serious risk of physical injury to another” is the “residual clause.” Id.

         The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), contains similarly worded clauses. See 18 U.S.C. § 924(e)(2)(B). In Johnson, the United States Supreme Court held that the ACCA's residual clause was unconstitutionally void for vagueness. Johnson, 135 S.Ct. at 2557. Therefore, an enhanced sentence under that clause violated due process as guaranteed by the Fifth Amendment. Id. at 2556-57. In Welch v. United States, the Supreme Court held that Johnson applied retroactively to ACCA cases on collateral review. 136 S.Ct. 1257, 1265 (2016).

         Petitioner, here, argues that Johnson's ruling invalidated the residual clause of the Guidelines' career offender provision, such that his Tennessee escape offenses no longer qualified as predicate offenses. The argument is without merit. On March 6, 2017, the Supreme Court refused to extend Johnson's reasoning to the Guidelines' career offender provisions. See Beckles v. United States, 137 S.Ct. 886, 892 (2017). The Court explained that, “[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of ...


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