United States v. Marcus Tharpe

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-30007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30007

Plaintiff-Appellee, D.C. No. 4:17-cr-00158-DCN

v. MEMORANDUM* MARCUS VAUGHAN THARPE,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Marcus Vaughan Tharpe appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

possession of a firearm by a prohibited person, in violation of 18 U.S.C.

§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Tharpe contends that the district court erred by applying a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use or possession of a firearm in

connection with another felony offense. We review a district court’s application of

the Sentencing Guidelines to the facts for abuse of discretion and its factual

findings for clear error. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th

Cir. 2017) (en banc). The district court did not abuse its discretion by applying the

section 2K2.1(b)(6)(B) enhancement. See U.S.S.G. § 2K2.1 cmt. n.14(A) (section

2K2.1(b)(6)(B) applies “if the firearm or ammunition facilitated, or had the

potential of facilitating, another felony offense . . . .”); U.S.S.G. § 2K2.1 cmt.

n.14(C) (“‘Another felony offense’ . . . means any federal, state, or local offense

. . . punishable by imprisonment for a term exceeding one year, regardless of

whether a criminal charge was brought, or a conviction obtained.”). Furthermore,

the record reveals no clear error in the court’s finding that Tharpe used a firearm to

commit another felony offense under section 18-905(a) of the Idaho Code. See

United States v. Marin-Cuevas, 147 F.3d 889, 894-95 (9th Cir. 1998) (any

information may be considered at sentencing “so long as it has ‘sufficient indicia

of reliability to support its probable accuracy’”) (quoting U.S.S.G.

§ 6A1.3(a)).

//

2 18-30007 We reject as meritless Tharpe’s contention that the district court violated his

due process rights.

AFFIRMED.

3 18-30007