14-4654
United States v. Greenwood

                                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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of January, two thousand sixteen.

PRESENT:           JOSÉ A. CABRANES,
                   ROSEMARY S. POOLER,
                   GERARD E. LYNCH,
                                Circuit Judges.



UNITED STATES OF AMERICA,

                           Appellee,                                  No. 14-4654

                           v.

PAUL GREENWOOD,

                           Defendant-Appellant.*



FOR PAUL GREENWOOD:                                               FREDERICK PHILLIP HAFETZ,
                                                                  Hafetz & Necheles, New York, NY.

FOR UNITED STATES OF AMERICA:                                     JESSICA A. MASELLA, Assistant United
                                                                  States Attorney (Michael A. Levy,


    *   The Clerk of Court is directed to amend the caption of the order as set forth above.


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                                                                  Assistant United States Attorney, on the
                                                                  brief), for Preet Bharara, United States
                                                                  Attorney for the Southern District of New
                                                                  York, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Miriam Goldman Cedarbaum, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is REMANDED for
resentencing.

            Defendant-appellant Paul Greenwood (“Greenwood”) appeals from a judgment entered
by the United States District Court for the Southern District of New York on December 11, 2014,
sentencing him principally to 120 months’ imprisonment following his guilty plea to one count of
conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371; one count of
securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. §
2; one count of commodities fraud, in violation of 7 U.S.C. §§ 6o(1) and 13(a)(2) and (5), and 18
U.S.C. § 2; two counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; and one count of
money laundering, in violation of 18 U.S.C. §§ 1957 and 2.

        On appeal, Greenwood argues that his sentence should be vacated because it is procedurally
unreasonable. He argues that the District Court erred “procedurally” when it: (1) failed to consider
sentencing factors set forth in 18 U.S.C. § 3553(a), (2) failed to state the reasons for its sentence in
open court as required by 18 U.S.C. § 3553(c), and (3) based its sentence on factual findings
regarding the victims’ losses that were unsupported by the record. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.

        We conclude in the instant case that Greenwood’s third argument has merit and satisfies the
applicable plain-error standard.1 As Greenwood points out, just before announcing the 120-month
sentence, the District Court explained that “[t]here are a number of people today who lost many
thousands of dollars as a result of [Greenwood’s] fraud . . . . And the loss of that money was very
devastating for many of them.” A-418. As the government concedes, however, although the
Presentence Investigation Report stated that Greenwood’s investors included pension and


        1  Because Greenwood failed to object to his sentence at the District Court, we review his challenges
for plain error. To establish plain error, the appellant must demonstrate that “(1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Wagner-Dano, 679 F.3d 83, 94 (2d Cir. 2012) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).


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retirement plans, “nothing in the record expressly supports the conclusion that the . . . actual losses
that remained outstanding at the time of Greenwood’s sentence had ‘devastat[ed]’ any specific
victim.” Gov’t Br. 33–34 n.11. Indeed, the PSR makes no mention whatever of an individual victim,
let alone a number of individual victims who lost thousands of dollars as a result of the fraud.
Greenwood has therefore established procedural error insofar as the sentence rested on a clearly
erroneous finding of fact, see United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc), and
we conclude that, under the circumstances presented here, this error satisfies each of the plain-error
requirements, see Wagner-Dano, 679 F.3d at 94. We therefore remand the case for resentencing on
this basis, and we need not address Greenwood’s remaining arguments.

        We do not foreclose the possibility that on remand the District Judge—an experienced and
distinguished jurist who, as the government argues, may have “draw[n] a reasonable inference” that
many individuals lost thousands of dollars because the fraud’s victims included pension and
retirement plans, Gov’t Br. 33 n.11—may impose the same sentence. But we nonetheless remand
for resentencing to ensure that the sentence imposed is not based on erroneous findings of fact, and
to give the District Court an opportunity to clearly state the reasons for the particular sentence.

                                          CONCLUSION

       Accordingly, we respectfully REMAND the December 11, 2014, judgment of the District
Court for resentencing.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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