Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Blankenship

United States District Court, D. Hawaii

June 28, 2016

UNITED STATES OF AMERICA, Plaintiff
v.
MARK ALLEN BLANKENSHIP, Defendant. Civ. No.16-cv-00229 HG-KSC

          ORDER DENYING DEFENDANT MARK ALLEN BLANKENSHIP’S MOTION FOR RELEASE ON BAIL (ECF NO. 64)

          Helen Gillmor United States District Judge

         Defendant 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 (2013).

         Defendant’s Motion for Release on Bail (ECF No. 64) is DENIED.

         BACKGROUND

         On June 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).

         Memorandum of Plea Agreement

         The 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)).

         The 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).

         The 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)).

         The 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).

         On September 24, 2012, the Court accepted Defendant’s guilty plea. (ECF No. 30).

         On 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.)

         Defendant’s Sentencing Guidelines

         The 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).

         United States Sentencing Guideline 4B1.1(a) (2012) provided:

         §4B1.1. Career Offender

(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)).

         Commentary to Section 4B1.1 stated that “crime of violence” has the meaning given that term in §4B1.2(a).

         United States Sentencing Guideline 4B1.2(a) (2012) defined “crime of violence” as follows:

         §4B1.2. Definitions of Terms Used in 4B1.1

         (a) The 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 another.

(U.S.S.G. § 4B1.2(a) (2012)).

         The 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.

(Id.)

         Sentencing Hearing

         On 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).

         Defendant’s 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).

         The Court granted the Government’s Motion for Downward Departure. (Transcript of Sentencing Hearing at p. 12, ECF No. 69).

         Defendant was sentenced to 113 months imprisonment. (Judgment, ECF No. 50).

         Defendant did not appeal his conviction or his sentence.

         On March 28, 2016, Defendant, proceeding pro se, filed a request for relief pursuant to the United States Supreme Court decision in Johnson v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.