United States v. Mark Blankenship ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 05 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10056
Plaintiff-Appellee, D.C. No.
1:12-cr-00641-JMS-1
v.
MARK A. BLANKENSHIP, ORDER*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Submitted February 15, 2019**
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
In 2012, Mark Blankenship entered a guilty plea for violating the Hobbs
Act, 18 U.S.C. § 1951. He appeals the district court’s grant of a Rule 35(b) motion
to reduce his sentence.
*
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).
1. “Although neither party raised the issue of our jurisdiction to entertain this
appeal, we have a duty to consider it sua sponte.” Symantec Corp. v. Glob. Impact,
Inc., 559 F.3d 922, 923 (9th Cir. 2009). Appealing a decision on a Rule 35(b)
motion must proceed under 18 U.S.C. § 3742. United States v. Tadio, 663 F.3d
1042, 1045 (9th Cir. 2011). Under 18 U.S.C. § 3742(a)(1), we have jurisdiction to
correct a sentence “imposed in violation of law.” Unless the defendant appeals a
question of law, we have no jurisdiction over the appeal. “If the district court has
stated the correct legal standard when reducing a sentence under Rule 35(b), we
have no appellate jurisdiction to review its decision.” Tadio, 663 F.3d at 1053.
The district court here stated the correct legal standard. See id. at 1045,
1052. Accordingly, “we lack jurisdiction to review the court’s exercise of its
discretion in choosing the amount of the sentence reduction awarded.” See id. at
1045.
This appeal is DISMISSED.1
1
The pending motion is denied. (Docket No. 52).
2