United States District Court, D. Hawaii
ORDER DENYING DEFENDANT MARK ALLEN
BLANKENSHIP’S MOTION FOR RELEASE ON BAIL (ECF NO.
Gillmor United States District Judge
Mark Allen Blankenship has filed a Motion for Release on Bail
(ECF No. 64) pending the resolution of his claim under 28
U.S.C. § 2255 that his sentence is unconstitutional
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) and Descamps v. United States, 133 S.Ct. 2276
Motion for Release on Bail (ECF No. 64) is DENIED.
13, 2012, a grand jury returned an Indictment charging
Defendant Mark Allen Blankenship with one count of commission
of a Hobbs Act robbery, in violation of 18 U.S.C. §
1951. The Indictment stated:
[T]he defendant did obtain property belonging to Walgreens
Pharmacy consisting of four bottles of sealed Oxycodine 30mg
which contained 100 pills each, from the person and in the
presence of J.M., who is a Walgreens pharmacist, which was
engaged in interstate commerce, against J.M.’s will by
means of actual and threatened force, violence, and fear of
injury, immediate and future, on J.M.
(Superseding Indictment on p. 2, ECF No. 9).
On August 10, 2012, Defendant Blankenship pled guilty
pursuant to a Plea Agreement before a Magistrate Judge to the
one count of the Indictment. (ECF No. 25).
of Plea Agreement
Memorandum of Plea Agreement included a recitation of the
facts. The Plea Agreement stated that Defendant approached
the pharmacy area of the Walgreens and demanded the
pharmacist place all Oxycodone medication into his basket.
(Memorandum of Plea Agreement at ¶ 8(a), ECF No. 26).
The Plea Agreement provided that the Defendant told the
pharmacist that he had a gun and would “jump the
counter” if she did not comply, placing her in fear of
injury. (Id. at ¶ 8(a)-(b)).
Memorandum of Plea Agreement contained a stipulation that the
Court must impose a sentence of 151 months if it accepted the
Parties’ plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C). (Id. at ¶ 4).
Plea Agreement stated that the Defendant “acknowledges
that he qualifies as a ‘career offender’ in
accordance with Section 4B1.1” of the United States
Sentencing Guidelines. (Id. at ¶ 10(b)(ii)).
terms of the Memorandum of Plea Agreement contained a waiver
of Defendant’s right to challenge his sentence. The
Plea Agreement stated the Defendant “knowingly waives
the right to appeal, and also waives his right to challenge
his sentence or the manner in which it was determined in any
collateral attack, including, but not limited to, a motion
brought under Title 28, United States Code, Section 2255,
except that Defendant may make such a challenge based on a
claim of ineffective assistance of counsel.”
(Id. at ¶ 13).
September 24, 2012, the Court accepted Defendant’s
guilty plea. (ECF No. 30).
September 9, 2013, the Government filed a Motion for Downward
Departure pursuant to Section 5K1.1 of the United States
Sentencing Guidelines. (ECF No. 43). The Government sought a
downward departure from the Parties’ stipulation of 151
months imprisonment based on the Defendant’s
substantial assistance to authorities. (Id.)
Presentence Report determined that Defendant was a career
offender and calculated his sentencing guidelines pursuant to
the career offender guideline stated in Section 4B1.1 of the
United States Sentencing Guidelines. (Presentence Report at
¶ 28, ECF No. 51).
States Sentencing Guideline 4B1.1(a) (2012) provided:
(a) A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence of a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
(U.S.S.G. § 4B1.1(a) (2012)).
to Section 4B1.1 stated that “crime of violence”
has the meaning given that term in §4B1.2(a).
States Sentencing Guideline 4B1.2(a) (2012) defined
“crime of violence” as follows:
Definitions of Terms Used in 4B1.1
term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that –
(1) has an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk or physical injury to
(U.S.S.G. § 4B1.2(a) (2012)).
Presentence Report determined that Defendant was subject to
the career offender guideline found in Section 4B1.1(a)
because Defendant’s Hobbs Act robbery was a crime of
violence that he committed when he was over the age of
eighteen and Defendant had been convicted of two prior crimes
of violence as defined in §4B1.2(a). (Presentence Report
at ¶ 28, ECF No. 51).The Presentence Report stated:
As shown in Part B (Criminal History) below, the defendant
was convicted of Burglary in the First Degree in Case No.:
89-1801; 2 counts of Burglary in the First Degree in Case
No.: 89-0985; Robbery in the Second Degree in Case No.:
90-2370; Robbery in the First Degree, Burglary in the First
Degree, and Kidnapping in Case No.: 90-2371; Robbery in the
Second Degree and Kidnapping in Case No.: 90-2372; Robbery in
the Second Degree and Kidnapping in Case No.: 90-2373;
Robbery in the Second Degree in Case No.: 90-2374; 2 counts
of Bank Robbery in Case No.: 91-00920DAE; and Escape in the
Second Degree in Case No.: 94-1455. Since the instant offense
involves a felony crime of violence, the defendant was 18
years or older at the time of the commission of the instant
offense, and the defendant has at least 2 prior felony
convictions for crimes of violence, he is a career offender
within the meaning of USSG §4B1.1. The offense level
determined under USSG §4B1.1 is 32 rather than the lower
level of 22 as calculated above.
September 26, 2013, the Court held a sentencing hearing. (ECF
No. 49). The Court adopted the findings in the Presentence
Report. (Transcript of Sentencing Hearing at p. 8, ECF No.
69). The Court agreed that Defendant had a base offense level
of 32 pursuant to the career offender guideline in United
States Sentencing Guideline § 4B1.1. (Presentence Report
at ¶ 28, ECF No. 51). Defendant’s guidelines were
lowered by three points as a result of his acceptance of
responsibility. (Id. at ¶¶ 29-30).
final advisory sentencing guidelines were calculated with a
total offense level of 29 and a criminal history category of
VI for a sentencing guidelines range of 151 to 188 months
imprisonment. (Id. at ¶¶ 31, 92;
Transcript of Sentencing Hearing at p. 8, ECF No. 69).
Court granted the Government’s Motion for Downward
Departure. (Transcript of Sentencing Hearing at p. 12, ECF
was sentenced to 113 months imprisonment. (Judgment, ECF No.
did not appeal his conviction or his sentence.
March 28, 2016, Defendant, proceeding pro se, filed a request
for relief pursuant to the United States Supreme Court
decision in Johnson v. ...