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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