United States v. Mark Blankenship

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2019
• Docket: 18-10056
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 05 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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