United States v. Hernandez

10-2978-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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 4th day of November, two thousand eleven. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROBERT A. KATZMANN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 10-2978-cr 17 18 JAMES HERNANDEZ, a/k/a JAMEZ HERNANDEZ 19 Defendant-Appellant. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANT: Gene V. Primomo (Lisa Peebles & 23 Molly Corbett, on brief), 24 Albany, NY. 25 26 FOR APPELLEE: Julie Pfluger (Robert A. Sharpe, 27 on brief), for Richard S. 28 Hartunian, United States 29 Attorney for the Northern 30 District of New York, Albany, 31 NY. 1 1 Appeal from a judgment of the United States District 2 Court for the Northern District of New York (McAvoy, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the district court be 6 AFFIRMED. 7 8 James Hernandez appeals from a judgment of conviction 9 entered on July 22, 2010 by the United States District Court 10 for the Northern District of New York (McAvoy, J.) for being 11 a felon in possession of a firearm in violation of 18 U.S.C. 12 §§ 922(g)(1) and 924(a)(2). We assume the parties’ 13 familiarity with the underlying facts, procedural history, 14 and issues presented for review. 15 16 Hernandez contends on appeal that the district court 17 improperly drew an “adverse inference” at sentencing from 18 his refusal to tell the probation office why he possessed 19 firearms and how one of the guns later turned up at a New 20 York City crime scene. We disagree. The district court 21 observed that the guns that Hernandez possessed “certainly 22 aren’t sporting weapons” but rather were “weapons used to 23 kill human beings.” The court was undoubtedly justified in 24 inferring that Hernandez did not have the weapons “for any 25 legitimate purpose.” There is nothing improper about 26 drawing such an inference in considering (as the district 27 court was statutorily obligated to do) the “nature and 28 circumstances of [Hernandez’s] offense,” 18 U.S.C. § 29 3553(a). See United States v. Espinosa, 771 F.2d 1382, 1404 30 (10th Cir. 1985) (“The judge’s remarks concerning the 31 defendants’ silence were not made in an attempt to deny them 32 that privilege; in fact, he expressly recognized the 33 defendants’ right to remain silent. Instead, the comments 34 were made to explain why he decided to sentence defendants 35 to the same term of imprisonment.”); United States v. 36 Washington, 586 F.2d 1147, 1156 (7th Cir. 1978) (“It clearly 37 appears from the record that the district court did not 38 penalize the defendants for remaining silent throughout the 39 proceedings against them, but rather that the district court 40 set forth the framework in which it viewed the defendant’s 41 involvement in the crimes for which they stood convicted.”). 42 43 Hernandez relies on the district court’s use of the 44 phrase “adverse inference” during sentencing. While that 45 term is sometimes associated with an inference based on a 46 party’s silence or refusal to produce evidence, see Black’s 47 Law Dictionary 847 (9th ed. 2009), the context of the 2 1 court’s statement satisfies us that the district court had 2 no such intention. It recognized that Hernandez’s counsel 3 had “quite properly advised his client to exercise his Fifth 4 Amendment rights” during his presentencing interview. After 5 reviewing the sentencing transcript, we are persuaded that 6 the district court was drawing a constitutionally- 7 permissible inference about Hernandez’s future dangerousness 8 based on the facts and circumstances of his crime rather 9 than on his silence. 10 11 Even if some ambiguity remained about the source of the 12 inference the district court drew, we would affirm. In the 13 absence of a contemporaneous objection, we review a district 14 court’s decision for plain error. See United States v. 15 Marcus, 130 S. Ct. 2159, 2164 (2010). If Hernandez had 16 objected to the inference drawn by the district court during 17 sentencing, any ambiguity about the court’s words could have 18 been resolved. Accordingly, we can find no error “so 19 serious and flagrant” as to impugn “the very integrity of 20 the trial.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 21 51 (2d Cir. 1998) (quoting Pescatore v. Pan Am. World 22 Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996)). 23 24 The district court stated at sentencing that 25 Hernandez’s former girlfriend’s statements were "not going 26 to form the basis of any sentence I'm going to impose. . . . 27 The sentence I'm going to impose . . . has to do with the 28 two counts to which [Hernandez] pled guilty involving the 29 weapons that have sufficiently been described in the 30 presentence report." Therefore, we need not consider any 31 of Hernandez’s challenges relating to those statements; any 32 error would be harmless. See United States v. Rivera, 201 33 F.3d 99, 100-01 (2d Cir. 1999). 34 35 Finding no merit in Hernandez’s remaining arguments, we 36 hereby AFFIRM the judgment of the district court. 37 38 39 FOR THE COURT: 40 CATHERINE O’HAGAN WOLFE, CLERK 41 3