1 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. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 Cour t 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 29 th day of September, tw o thousand sixteen.
PRESENT: J OHN M. W ALKER , J R

. J OSÉ A. C ABRANES , Circuit Judges
, R ICHARD M. B ERMAN , District Judge. *

U NITED S TATES OF A MERICA , Appellee
, 16-544-cr

v.

D ANIEL H ERNANDEZ , Defendant-Appellant
, J ONATHAN W AGNER , E DWIN D ELEON , M ELVIN M AISONAVE , R AUL S ANCHEZ , ALSO KNOWN AS P EPE , R ICHARD M ORENO , J OSE P ASTRANA , ALSO KNOWN AS C HOLO , Defendants

.

* The Honorable Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation.2 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 WHEREO F, 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 go vernment 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 Februa ry 8, 2016, is untimely because it was not filed within 14 days of the October 23, 2015 or der 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 untime ly. 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