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21-142-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 15th day of November, two thousand twenty-one.

PRESENT: PIERRE N. LEVAL,

JOSÉ A. CABRANES,

DENNY CHIN,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee, 21-142-cr

v.

RAYMOND HERNANDEZ,

Defendant-Appellant.

FOR APPELLEE: Steven D. Clymer, Assistant United States 

Attorney, for Antoinette T. Bacon, Acting 

United States Attorney, Northern District 

of New York, Syracuse, NY.

FOR DEFENDANT-APPELLANT: Jeremy Gordon, Jeremy Gordon, PLLC, 

Mansfield, TX. 

Appeal from an order of the United States District Court for the Northern District of New 

York (Thomas J. McAvoy, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

AFFIRMED.

Raymond Hernandez in 2014 pleaded guilty to attempting to possess with intent to 

distribute more than five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and possessing 

a firearm after being convicted of a crime punishable by imprisonment for more than one year, 18 

U.S.C. §§ 922(g)(1), 924(a)(2). Hernandez was sentenced to 188 months on the drug charge and 120 

months on the gun charge, to run concurrently. On December 3, 2020, Hernandez moved for 

compassionate release under 18 U.S.C. § 3582(c)(1)(A), arguing that the COVID-19 pandemic 

created “extraordinary and compelling” reasons to reduce his sentence. App’x 17. The District 

Court agreed, but denied Hernandez’s motion because the factors set forth in 18 U.S.C. § 3553(a) 

“d[id] not weigh in favor of reducing [his] sentence.” Id. at 43. Hernandez argues that this decision 

was an abuse of discretion. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal. 

The District Court did not abuse its discretion. See United States v. Holloway, 956 F.3d 660, 

664 (2d Cir. 2020) (outlining this standard of review for “motion[s] for a discretionary sentence 

reduction”). It considered the 3553(a) factors, concluding that Hernandez’s crimes “were serious”;

he had a “long history of criminal activity”; his release “would undermine respect for the law and the 

deterrent effect of sentencing”; “[c]ontinued jail time is . . . necessary to protect the public” because 

of his “frequent[ ] involve[ment]” in “behavior dangerous to the public”; and release would “create 

unwarranted sentencing disparities between [Hernandez] and others convicted of similar crimes with 

similar criminal histories.” App’x 43–44; see 18 U.S.C. § 3553(a)(1), (2)(A), (2)(B), (2)(C), (3), (6). 

This explanation makes clear that denying Hernandez’s motion was “within the range of possible 

decisions.” United States v. Borden, 564 F.3d 100, 103–04 (2d Cir. 2009).

We reject Hernandez’s arguments. The District Court considered his post-sentence 

rehabilitation efforts, but decided that they were not dispositive because “his life outside prison has 

very frequently involved behavior dangerous to the public.” App’x 44; see also Pepper v. United States, 

562 U.S. 476, 490 (2011) (noting that a re-sentenced defendant’s rehabilitation “may, in appropriate 

cases, support a downward variance” (emphasis added)). Given the seriousness of Hernandez’s 

offense, his criminal history, and the roughly four years that remained until his release, the District 

Court reasonably decided that granting his motion risked unwarranted sentencing disparities.1

 

1 We reject the tables provided for the first time in Hernandez’s Reply, and apparently not 

presented to the District Court. See Def.’s Reply 4–5. The tables include all sentences for which the 

bottom of the guidelines range was 15 months or greater, see U.S.S.G. § 5A (describing Zone D),

however, the guideline range for many of these sentences was substantially lower than Hernandez’s 

guidelines range.
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Finally, Hernandez’s danger to the public is a relevant factor under § 3553(a)(2)(C), and the District 

Court did not treat U.S.S.G. § 1B1.13 as binding in any case. See United States v. Brooker, 976 F.3d 

228, 237 (2d Cir. 2020) (noting that, rather than limit a district court’s discretion, the First Step Act 

removed “a significant rein on the courts’ discretion”); cf. United States v. Sherwood, 986 F.3d 951, 953–

54 (6th Cir. 2021) (vacating denial of a compassionate release motion where the district court “relied 

exclusively on § 1B1.13(2) in denying relief”).2

CONCLUSION

We have reviewed all of the arguments raised by Hernandez on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the January 7, 2021, order of the District 

Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

2 We reject Hernandez’s U.S.S.G. § 1B1.13 argument for the independent reason that his reply 

brief does not contest the Government’s claim that Hernandez waived this argument in the district 

court. See Carlisle Ventures, Inc. v. Banco Espanol de Credito, S.A., 176 F.3d 601, 609 (2d Cir. 1999)

(declining to consider an argument where the appellant “d[id] not respond to [the appellee’s] waiver 

argument in its [r]eply [b]rief,” or “point to any evidence in the record to prove that it did raise this 

argument below”).