         12-0606-cr
         United States v. Toribio

                                 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of March, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9
10                                     Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                12-0606-cr
19
20       MARCELINO FERNANDEZ, AKA CHULIN,
21       CHRISTIAN CASTILLO, CARLOS MARTINEZ,
22       SUSANA RIVERA, ARTHUR CLARK, LUIS
23       BRITO-REINOSO, JAVIER CASTILLO,
24       ALEX FERNANDEZ, LARRY SCISSON,
25       DARNELL COFFMAN, ONDRAY DONALDSON,
26       FRANCISCO SANTIAGO, CHRISTOPHER HOFFMAN,
27       GAMALIEL LINARES, JUSTIN JOHNS,
28
29                                     Defendants,
30
31       GENESIS TORIBIO,
32
33                                     Defendant-Appellant.
34
 1
 2   FOR APPELLANT:    Angelo Musitano, Niagara Falls, NY.
 3
 4   FOR APPELLEE:     Stephan J. Baczynski, Assistant United
 5                     States Attorney, for William J. Hochul,
 6                     Jr., United States Attorney for the
 7                     Western District of New York, Buffalo,
 8                     NY.
 9
10        Appeal from the United States District Court for the
11   Western District of New York (Skretny, C.J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the appeal be DISMISSED.   Defendant-

15   Appellant Genesis Toribio (“Toribio”) entered into a plea

16   agreement whereby he promised not to appeal a sentence

17   within a 87-108 month range.   The district court sentenced

18   him to 63 months imprisonment and, despite his promise, he

19   now appeals. We assume the parties’ familiarity with the

20   underlying facts, the procedural history, and the issues

21   presented for review.

22        Toribio asserts that we should remand for re-

23   sentencing because the government breached the material

24   terms of the plea agreement.   In relevant part, the plea

25   agreement provides:

26            Upon condition that the defendant has fully
27            complied with all terms and conditions of
28            this agreement, should the government
29            determine that the defendant has provided
30            substantial assistance in the investigation
31            or prosecution of other persons who have

                              2
 1            committed offenses, the government will
 2            move the Court at sentencing to depart
 3            downward from the Guidelines as provided
 4            for in Guidelines § 5K1.1 and/or the
 5            imposition of a sentence below a mandatory
 6            minimum term of imprisonment pursuant to
 7            Title 18, United States Code, Section
 8            3553(e). The defendant understands that
 9            the decision to make such a motion is
10            within the sole discretion of the
11            government and that the decision to grant
12            such a motion, and the extent of any
13            downward departure, are matters solely
14            within the discretion of the Court.
15
16   Joint App’x 54-55.

17       Consistent with that provision, on November 4, 2011,

18   the government moved the court to reduce Toribio’s sentence

19   pursuant to U.S.S.G. § 5K1.1 and requested a two-level

20   reduction in Toribio’s offense level.   As he was entitled,

21   Toribio responded that the two-point reduction was

22   insufficient, and the government submitted a response urging

23   the court accept its recommendation of a two-level

24   reduction.   At sentencing, the district court decided to

25   give Toribio a three-level reduction, one level more than

26   the government had recommended.

27       Here, Toribio maintains that the government did not

28   reserve the right to make a recommendation regarding the




                                   3
1    magnitude of the appropriate downward departure.1          By

2    recommending the two-level reduction and subsequently

3    submitting a response to his motion requesting more than a

4    two level reduction, he thinks the government breached the

5    plea agreement by somehow taking the matter out of the sole

6    discretion of the district court.

7         “To determine whether a plea agreement has been

8    breached, we look[] to the reasonable understanding of the

9    parties as to the terms of the agreement” and “any

10   ambiguities in the agreement must be resolved in favor of

11   the defendant.” United States v. Riera, 298 F.3d 128, 133

12   (2d Cir. 2002) (internal quotation marks and citations

13   omitted).    Toribio’s arguments lack merit.        The government

14   recommended a two-level reduction, and the district court

15   gave him a three-level reduction.        Ipso facto, the “extent

16   of any downward departure, [was a] matter[] solely within

17   the discretion of the Court” pursuant to the terms of the

18   agreement.    Moreover, the commentary to § 5K1.1 provides

19   that “[s]ubstantial weight should be given to the

          1
            Toribio maintains in his brief that any “government
     recommendation should be the starting point of the Court’s analysis.”
     Br. at 18. We note the logical inconsistency within Toribio’s own
     brief: he maintains that the government breached the agreement by
     recommending the two-level downward departure while at the same time
     acknowledging that the district court should have used the
     government’s recommendation as a “starting point.”

                                       4
1    government’s evaluation of the extent of the defendant’s

2    assistance . . . .” U.S.S.G. § 5K1.1 n.3.   Finally, nothing

3    in the plea agreement suggests that the government agreed to

4    tie its hands in the manner Toribio suggests.

5        Because the government did not breach the plea

6    agreement and because Toribio does not assert another reason

7    to set aside his appellate waiver, we will not consider his

8    arguments regarding the procedural or substantive

9    reasonableness of his sentence and dismiss his appeal.      See

10   United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010).

11       We take this opportunity to advise Mr. Musitano,

12   Toribio’s counsel, to refrain from liberally using ellipses

13   to change this Court’s previous holdings.   Toribio argued

14   that the government was obligated to present evidence of his

15   cooperation in the light most favorable to him.     In brief,

16   he represents that we have “held that ‘the government in

17   making a §5K1.1 motion . . . [is] expected to describe that

18   assistance in the light most favorable to the defendant.’”

19   Toribio Br. at 17 (quoting United States v. Gangi, 45 F.3d

20   28 (2d Cir. 1995)).   Turning to that case, we only noted

21   that “[w]hile the government in making a § 5K1.1 motion is

22   effectively rewarding the defendant for his assistance and


                                   5
1    might be expected to describe that assistance in the light

2    most favorable to the defendant, the defendant may well view

3    the government’s description as not fully conveying the

4    compelling nature of his cooperation.”         Gangi, 24 F.3d at

5    31.   Mr. Musitano used his editorial license to misrepresent

6    our previous holding; he should refrain from doing so in the

7    future.2

8              We have considered all of Toribio’s arguments on

9    appeal and find them to be without merit.           For the foregoing

10   reasons, the appeal is DISMISSED.

11
12                                   FOR THE COURT:
13                                   Catherine O’Hagan Wolfe, Clerk
14
15




           2
            The New York Rules of Professional Conduct   prohibit lawyers
     from knowingly “mak[ing] a false statement of . .   . law to a tribunal”
     and impose the affirmative obligation to “correct   false statement[s]”
     previously made. N.Y. Rules of Prof’l Conduct R.    3.3(a)(1); see also
     Model Rules of Prof’l Conduct R. 3.3(a)(1),(2).

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