Opinion
No. 18-10056
03-05-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK A. BLANKENSHIP, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 1:12-cr-00641-JMS-1 ORDER 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.
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).
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. 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.
The pending motion is denied. (Docket No. 52). --------