United States v. Hernandez

Second Circuit

United States v. Hernandez

669 F. App'x 39

CourtCourt of Appeals for the Second Circuit

DecidedSeptember 29, 2016

Docket16-544-cr

StatusUnpublished

Cited by1 cases

This text of 669 F. App'x 39 (United States v. Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Hernandez, 669 F. App'x 39 (2d Cir. 2016).

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Opinion

SUMMARY ORDER

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.

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SUMMARY ORDER

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.

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669 F. App'x 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hernandez-ca2-2016.

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