United States v. Fernandez

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).
6