United States v. Hernandez ( 2016 )

16-544-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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of September, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.
JOSÉ A. CABRANES,
Circuit Judges,
RICHARD M. BERMAN,
District Judge.*
UNITED STATES OF AMERICA,
Appellee, 16-544-cr
v.
DANIEL HERNANDEZ,
Defendant-Appellant,
JONATHAN WAGNER, EDWIN DELEON, MELVIN
MAISONAVE, RAUL SANCHEZ, ALSO KNOWN AS PEPE,
RICHARD MORENO, JOSE PASTRANA, ALSO KNOWN AS
CHOLO,
Defendants.
*
The Honorable Richard M. Berman, of the United States District Court for the Southern
District of New York, sitting by designation.
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FOR APPELLEE: David C. James, David C. Pitluck,
Assistant United States Attorneys, for
Robert L. Capers, United States Attorney
for the Eastern District of New York,
Brooklyn, NY.
FOR DEFENDANT-APPELLANT: Daniel Hernandez, pro se, Waymart, PA.
Appeal from an order of the United States District Court for the Eastern District of New
York (Nicholas G. Garaufis, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the defendant’s appeal is DISMISSED.
Defendant Daniel Hernandez, proceeding pro se, appeals from an October 23, 2015 order
denying his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782
to the United States Sentencing Guidelines. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
A notice of appeal in a criminal case must be filed within 14 days of the entry of the
judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A). A district court may extend this
deadline by 30 days if it finds excusable neglect or good cause. Fed. R. App. P. 4(b)(4). Although
Rule 4(b) is not jurisdictional, when “the government properly objects to the untimeliness of a
defendant’s criminal appeal, [it] is mandatory and inflexible.” United States v. Frias, 521 F.3d 229, 234
(2d Cir. 2008).
Here, Hernandez’s notice of appeal, dated February 8, 2016, is untimely because it was not
filed within 14 days of the October 23, 2015 order denying his § 3582 motion. And because his
extension motion was also dated February 8, 2016, more than 30 days after the time in which to file
a notice of appeal expired, it was also untimely. Consequently, because the Government objects to
the untimeliness of Hernandez’s appeal, we must dismiss the appeal.
CONCLUSION
We have reviewed all of the arguments raised by Hernandez on appeal and find them to be
without merit. For the foregoing reasons, the defendant’s appeal is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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