UNITED STATES of America, Appellee, v. Marcelino FERNANDEZ, aka Chulin, Christian Castillo, Carlos Martinez, Susana Rivera, Arthur Clark, Luis Brito-Reinoso, Javier Castillo, Alex Fernandez, Larry Scisson, Darnell Coffman, Ondray Donaldson, Francisco Santiago, Christopher Hoffman, Gamaliel Linares, Justin Johns, Defendants, Genesis Toribio, Defendant-Appellant, 516 F. App'x 34

SUMMARY ORDER Toribio asserts that we should remand for resentencing because the government breached the material terms of the plea agreement.

In relevant part, the plea agreement provides: Upon condition that the defendant has fully complied with all terms and conditions of this agreement, should the government determine that the defendant has provided substantial assistance in the investigation or prosecution of other persons who have committed offenses, the government will move the Court at sentencing to depart downward from the Guidelines as provided for in Guidelines § 5K1.1 and/or the imposition of a sentence below a mandatory minimum term of imprisonment pursuant to Title 18, United States Code,

Section 8558(e). The defendant understands that the decision to make such a motion is within the sole discretion of the government and that the decision to grant such a motion, and the extent of any downward departure, are matters solely within the discretion of the Court. Joint App’x 54-55. Consistent with that provision, on November 4, 2011, the government moved the court to reduce Toribio’s sentence pursuant to U.S.S.G. § 5K1.1 and requested a two-level reduction in Toribio’s offense level.

As he was entitled, Toribio responded that the two-point reduction was insufficient, and the government submitted a response urging the court accept its recommendation of a two-level reduction. At sentencing, the district court decided to give Toribio a three-level reduction, one level more than the government had recommended. Here, Toribio maintains that the government did not reserve the right to make a recommendation regarding the magnitude of the appropriate downward departure.

By recommending the two-level reduction and subsequently submitting a response to his motion requesting more than a two level reduction, he thinks the government breached the plea agreement by somehow taking the matter out of the sole discretion of the district court. “To determine whether a plea agreement has been breached, we look[ ] to the reasonable understanding of the parties as to the terms of the agreement” and “any ambiguities in the agreement must be resolved in favor of the defendant.” United States v. Riera, 298 F.3d 128, 133 (2d Cir.2002) (internal quotation marks and citations omitted).

Toribio’s arguments lack merit. The government recommended a two-level reduction, and the district court gave him a three-level reduction. Ipso facto, the “extent of any downward departure, [was a] matter[] solely within the discretion of the Court” pursuant to the terms of the agreement. Moreover, the commentary to § 5K1.1 provides that “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance....” U.S.S.G. § 5K1.1 n. 3. Finally, nothing in the plea agreement suggests that the government agreed to tie its hands in the manner Toribio suggests.

Because the government did not breach the plea agreement and because Toribio does not assert another reason to set aside his appellate waiver, we will not consider his arguments regarding the procedural or substantive reasonableness of his sentence and dismiss his appeal. See United States v. Arevalo, 628 F.3d 93, 98 (2d Cir.2010). We take this opportunity to advise Mr. Musitano, Toribio’s counsel, to refrain from liberally using ellipses to change this Court’s previous holdings. Toribio argued that the government was obligated to present evidence of his cooperation in the light most favorable to him.

In brief, he represents that we have “held that ‘the government in making a § 5K1.1 motion ... [is] expected to describe that assistance in the light most favorable to the defendant.’ ” Toribio Br. at 17(quoting United States v. Gangi, 45 F.3d 28 (2d Cir.1995)).

Turning to that case, we only noted that “[w]hile the government in making a § 5K1.1 motion is effectively rewarding the defendant for his assistance and might be expected to describe that assistance in the light most favorable to the defendant, the defendant may well view the government’s description as not fully conveying the compelling nature of his cooperation.” Gangi, 45 F.3d at 31. Mr. Musitano used his editorial license to misrepresent our previous holding; he should refrain from doing so in the future. We have considered all of Toribio’s arguments on appeal and find them to be without merit.

For the foregoing reasons, the appeal is DISMISSED. . 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 Tori-bio’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.” .

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 statements] ” previously made. N.Y. Rules of Prof’I Conduct R. 3.3(a)(1); see also Model Rules of Prof! Conduct R. 3.3(a)(1),(2).