United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE
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.
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.”). (See Presentence Report (the
“PSR”) at ¶ 23.) His career offender status
was based on three Tennessee escape convictions. (PSR at
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.)
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.'” (D.E. 10 at PageID 42.)
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)).
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
U.S.S.G. § 4B1.2(a).
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
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).
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 ...