United States v. Marcus Tharpe ( 2018 )

NOT FOR PUBLICATION FILED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)).
//
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2 18-30007
We reject as meritless Tharpe’s contention that the district court violated his
due process rights.
AFFIRMED.
3 18-30007