United States v. Hernandez , 445 F. App'x 409 ( 2011 )

10-2978-cr
United States v. Hernandez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT A. KATZMANN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-2978-cr
17
18 JAMES HERNANDEZ, a/k/a JAMEZ HERNANDEZ
19 Defendant-Appellant.
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21
22 FOR APPELLANT: Gene V. Primomo (Lisa Peebles &
23 Molly Corbett, on brief),
24 Albany, NY.
25
26 FOR APPELLEE: Julie Pfluger (Robert A. Sharpe,
27 on brief), for Richard S.
28 Hartunian, United States
29 Attorney for the Northern
30 District of New York, Albany,
31 NY.
1
1 Appeal from a judgment of the United States District
2 Court for the Northern District of New York (McAvoy, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 James Hernandez appeals from a judgment of conviction
9 entered on July 22, 2010 by the United States District Court
10 for the Northern District of New York (McAvoy, J.) for being
11 a felon in possession of a firearm in violation of 18 U.S.C.
12 §§ 922(g)(1) and 924(a)(2). We assume the parties’
13 familiarity with the underlying facts, procedural history,
14 and issues presented for review.
15
16 Hernandez contends on appeal that the district court
17 improperly drew an “adverse inference” at sentencing from
18 his refusal to tell the probation office why he possessed
19 firearms and how one of the guns later turned up at a New
20 York City crime scene. We disagree. The district court
21 observed that the guns that Hernandez possessed “certainly
22 aren’t sporting weapons” but rather were “weapons used to
23 kill human beings.” The court was undoubtedly justified in
24 inferring that Hernandez did not have the weapons “for any
25 legitimate purpose.” There is nothing improper about
26 drawing such an inference in considering (as the district
27 court was statutorily obligated to do) the “nature and
28 circumstances of [Hernandez’s] offense,” 18 U.S.C. §
29 3553(a). See United States v. Espinosa, 771 F.2d 1382, 1404
30 (10th Cir. 1985) (“The judge’s remarks concerning the
31 defendants’ silence were not made in an attempt to deny them
32 that privilege; in fact, he expressly recognized the
33 defendants’ right to remain silent. Instead, the comments
34 were made to explain why he decided to sentence defendants
35 to the same term of imprisonment.”); United States v.
36 Washington, 586 F.2d 1147, 1156 (7th Cir. 1978) (“It clearly
37 appears from the record that the district court did not
38 penalize the defendants for remaining silent throughout the
39 proceedings against them, but rather that the district court
40 set forth the framework in which it viewed the defendant’s
41 involvement in the crimes for which they stood convicted.”).
42
43 Hernandez relies on the district court’s use of the
44 phrase “adverse inference” during sentencing. While that
45 term is sometimes associated with an inference based on a
46 party’s silence or refusal to produce evidence, see Black’s
47 Law Dictionary 847 (9th ed. 2009), the context of the
2
1 court’s statement satisfies us that the district court had
2 no such intention. It recognized that Hernandez’s counsel
3 had “quite properly advised his client to exercise his Fifth
4 Amendment rights” during his presentencing interview. After
5 reviewing the sentencing transcript, we are persuaded that
6 the district court was drawing a constitutionally-
7 permissible inference about Hernandez’s future dangerousness
8 based on the facts and circumstances of his crime rather
9 than on his silence.
10
11 Even if some ambiguity remained about the source of the
12 inference the district court drew, we would affirm. In the
13 absence of a contemporaneous objection, we review a district
14 court’s decision for plain error. See United States v.
15 Marcus, 130 S. Ct. 2159, 2164 (2010). If Hernandez had
16 objected to the inference drawn by the district court during
17 sentencing, any ambiguity about the court’s words could have
18 been resolved. Accordingly, we can find no error “so
19 serious and flagrant” as to impugn “the very integrity of
20 the trial.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47,
21 51 (2d Cir. 1998) (quoting Pescatore v. Pan Am. World
22 Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996)).
23
24 The district court stated at sentencing that
25 Hernandez’s former girlfriend’s statements were "not going
26 to form the basis of any sentence I'm going to impose. . . .
27 The sentence I'm going to impose . . . has to do with the
28 two counts to which [Hernandez] pled guilty involving the
29 weapons that have sufficiently been described in the
30 presentence report." Therefore, we need not consider any
31 of Hernandez’s challenges relating to those statements; any
32 error would be harmless. See United States v. Rivera, 201
33 F.3d 99, 100-01 (2d Cir. 1999).
34
35 Finding no merit in Hernandez’s remaining arguments, we
36 hereby AFFIRM the judgment of the district court.
37
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
3