     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




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