19-436(L)

United States v. Huberfeld

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

____________________

August Term, 2019

(Argued: February 4, 2020 Decided: August 4, 2020)

Docket No. 19-436 (L)

____________________

UNITED STATES OF AMERICA,

Appellee,

v.

NORMAN SEABROOK, MURRAY 

HUBERFELD,

Defendants-Appellants.

____________________

Before: POOLER, LYNCH, and MENASHI, Circuit Judges.

Appeal from United States District Court for the Southern District of New 

York (Alvin K. Hellerstein, J.), convicting Murray Huberfeld, after a guilty plea, 

of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. We hold that 
2

the district court erred at sentencing by applying the commercial bribery 

sentencing guideline based on an uncharged bribery scheme that the government 

dropped in exchange for Huberfeld pleading guilty to the wire fraud. Vacatur is 

warranted because we cannot be confident, despite the district court’s statement 

to the contrary, that it would have imposed the same sentence had it instead 

used the correct guideline.

We also hold that the district court erred by ordering $19 million in 

restitution to be paid to the Corrections Officers Benevolent Association

(“COBA”), an entity that was not a victim of the convicted conduct under the 

Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. 

Accordingly, we vacate and remand for Huberfeld’s resentencing and 

reverse the restitution order. We decide Norman Seabrook’s appeal through 

summary order, which we issue simultaneously with this opinion. 

Vacated and remanded in part; and reversed in part.

____________________

KANNON K. SHANMUGAM, Paul, Weiss, Rifkind, 

Wharton & Garrison LLP (Masha G. Hansford, 

Katherine S. Stewart, Amanda C. Weingarten, on the 

brief), Washington DC, for Defendant-Appellant Huberfeld.
3

RICHARD W. LEVITT, Levitt & Kaizer, New York, NY, 

for Defendant-Appellant Norman Seabrook

MARTIN S. BELL, Assistant United States Attorney 

(Russell Capone, Lara Pomerantz, Won S. Shin, 

Assistant United States Attorneys, on the brief), for

Audrey Strauss, Acting United States Attorney for the 

Southern District of New York, New York, NY, for 

Appellee.

POOLER, Circuit Judge:

Appeal from United States District Court for the Southern District of New 

York (Alvin K. Hellerstein, J.), convicting Murray Huberfeld, after a guilty plea, 

of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. We hold that 

the district court erred at sentencing by applying the commercial bribery 

sentencing guideline based on an uncharged bribery scheme that the government 

dropped in exchange for Huberfeld pleading guilty to the wire fraud. Vacatur is 

warranted because we cannot be confident, despite the district court’s statement 

to the contrary, that it would have imposed the same sentence had it instead 

used the correct guideline.

We also hold that the district court erred by ordering $19 million in 

restitution to be paid to the Corrections Officers Benevolent Association
4

(“COBA”), an entity that was not a victim of the convicted conduct under the 

Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. 

Accordingly, we vacate and remand for Huberfeld’s resentencing and 

reverse the restitution order. We decide Norman Seabrook’s appeal through 

summary order, which we issue simultaneously with this opinion. 

BACKGROUND

I. Factual Background

In the early 2000s, Huberfeld co-founded the Manhattan-based hedge 

fund, Platinum Partners. By 2011, Huberfeld had stepped down from a 

management role at Platinum and assumed a legacy role as limited partner. His 

primary responsibility in that role was to solicit investors and refer potential 

clients to the then-current management team. 

Defendant Norman Seabrook was the long-time president of COBA, New 

York City’s largest union for corrections officers. He wielded immense influence

over the union’s operations. His control of COBA extended to its finances, 

including the administration of its Annuity Fund, a retirement benefits program

for corrections officers with holdings of more than $70 million.
5

In late 2013, Platinum experienced significant levels of redemptions from

its investors. Huberfeld understood that this meant Platinum needed to find new 

clients. Around this time, he told Jona Rechnitz, a real-estate businessman and 

mutual acquaintance of Seabrook and Huberfeld, that Platinum was looking to 

attract institutional investors such as unions. Rechnitz, who had spent time 

cultivating relationships in law enforcement leadership circles, suggested that he 

might be able to recruit COBA as a client by courting Seabrook.

Rechnitz invited Seabrook on a vacation to the Dominican Republic where 

Rechnitz proposed investing COBA’s money into Platinum. Seabrook agreed, but 

he wanted to get paid for it. When Rechnitz relayed this to Huberfeld, he was 

amenable to the arrangement. Huberfeld devised a formula whereby Platinum

would pay Seabrook a portion of the profits from COBA’s investment, estimating 

an annual payment between $100,000 and $150,000.

Seabrook immediately took steps to ensure COBA would invest in

Platinum. At first, he went through the motions of having Platinum make a pitch 

to COBA’s Annuity Fund board. The board directed its financial advisors and 

attorneys to conduct due diligence, and authorized Seabrook to invest up to $10 

million if the advisors concluded that the investment was prudent. When some 
6

of the attorneys expressed concern, however, Seabrook concealed those warnings

from the board. In March 2014, COBA invested $10 million from its Annuity 

Fund in a Platinum fund. After the initial investment, COBA made two 

additional $5 million investments.

At the end of 2014, when it came time to make the first payment to 

Seabrook, Huberfeld told Rechnitz that the fund had underperformed, and 

Seabrook would only get $60,000. Rechnitz agreed to personally pay out the cash

to Seabrook, and Huberfeld agreed that Platinum would reimburse him for it.

Before meeting Seabrook, Rechnitz stopped at Salvatore Ferragamo on Fifth 

Avenue in Manhattan and bought an expensive handbag. He stuffed the $60,000 

of cash inside and handed it to Seabrook, who was parked in his car a few blocks 

away. In order to paper over the reimbursement, Rechnitz, through his company, 

invoiced Platinum for courtside tickets to eight New York Knicks games.

Rechnitz forwarded the invoice by email to Huberfeld. Three days later, 

Platinum sent a check to Rechnitz for $60,000, ostensibly to cover the cost of the 

Knicks tickets.

In 2015, Huberfeld, through another mutual associate, continued to lobby 

Seabrook for investments. But, after a former COBA board member filed a
7

lawsuit against the union that mentioned the Platinum investments, and after the 

government’s investigation of Seabrook became known, COBA made no

additional investments.

In June 2016, the FBI arrested Rechnitz, Seabrook, and Huberfeld. Federal 

agents also executed a search warrant at Seabrook’s home. They recovered, 

among other things, over $20,000 in cash and the Salvatore Ferragamo bag. Six 

months later and two years after COBA’s initial investment, Platinum filed for 

bankruptcy and COBA lost $19 million of its $20 million investment.

II. Procedural History

On July 7, 2016, a federal grand jury sitting in the United States District 

Court for the Southern District of New York returned an indictment charging

Seabrook and Huberfeld with honest services wire fraud and conspiracy to 

commit honest services wire fraud. The indictment alleged a commercial bribery

scheme that “deprive[d] members of COBA of their intangible right to the honest 

services of SEABROOK, its President. . . .” App’x at 18. In late October 2017, 

Seabrook and Huberfeld were tried jointly before the Hon. Andrew L. Carter, Jr.1

1 On March 15, 2017, Rechnitz pled guilty to one count of conspiracy to commit 

honest services wire fraud through a separate charging instrument. He later 
8

That trial ended in a hung jury. For administrative reasons, the matter was 

reassigned to the Hon. Alvin K. Hellerstein.

Following the mistrial, the government approached Huberfeld with a plea 

offer. Huberfeld agreed to plead guilty to a superseding information that 

charged him only with conspiracy to commit wire fraud for presenting the false 

$60,000 invoice to Platinum, instead of the overarching bribery scheme that was 

charged in the superseding indictment. The only reference to COBA in the 

information was the allegation that Huberfeld and Rechnitz knew that “the 

actual purpose of the payment [of $60,000] was to reimburse Rechnitz for having 

paid Norman Seabrook . . . for Seabrook’s efforts to get COBA to invest millions 

of dollars in Platinum.” App’x at 42. 

In the plea agreement, the parties stipulated that the applicable sentencing 

guideline was U.S.S.G § 2B1.1, the fraud guideline. After a two-level reduction 

for Huberfeld’s acceptance of responsibility, the parties stipulated that, based on 

a $60,000 loss, the final offense level was 10, resulting in a Guidelines range of 6 

to 12 months’ imprisonment.

played a prominent role in the prosecution’s case against Huberfeld and 

Seabrook. 
9

On May 25, 2018, the parties appeared before the district court for a plea 

hearing. The government explained that the scheme involved Huberfeld 

“defrauding Platinum Partners out of this $60,000 that was used to pay Mr.

Seabrook” and that the payment’s purpose was “to cover the cost of 

compensating Mr. Seabrook for his efforts in securing the union’s investment in 

the hedge fund.” App’x at 68, 69. Initially, the district court expressed

“reservations” about accepting the plea because the superseding information did 

not charge the overarching bribery scheme. App’x at 73. The district court

discussed the false invoice as a “constituent part of a larger fraud,” and stated

that Huberfeld was “an agent in paying a bribe in order to procure an 

investment.” App’x at 70. The government disagreed with this characterization, 

at least as it related to the contents of the charging instrument:

[THE GOVERNMENT]: But to be clear, your Honor, the superseding 

information doesn’t charge the broader scheme. It charges --

THE COURT: That’s my trouble, Mr. Bell. That’s exactly my trouble. 

[THE GOVERNMENT]: I’m not sure I understand, your Honor. 

THE COURT: He’s pleading guilty to the information. But to 

understand the plea of guilty, you have to go into a larger picture and 

that was the purpose of it. 

[THE GOVERNMENT]: But I respectfully, your Honor --
10

THE COURT: You allege as the purpose of the conspiracy in

paragraph two the to wit phrase on the top of page two. 

[THE GOVERNMENT]: Yes, your Honor. 

THE COURT: That Huberfeld and Rechnitz caused Platinum Partners 

to pay $60,000 to Rechnitz through a false representation to which Mr. 

Huberfeld was aware. When, in fact, the actual purpose of the 

payment was to reimburse Rechnitz for having paid Seabrook for 

Seabrook’s efforts to get the pension plans that he controlled to invest 

money in Platinum. That’s the overall picture. 

[THE GOVERNMENT]: That’s correct, your Honor. I think what I'm 

noting for these purposes --

THE COURT: The fraud is not a $60,000 fraud.

[THE GOVERNMENT]: Well, the fraud charged, your Honor, is a 

$60,000 fraud.

THE COURT: Exactly. 

[THE GOVERNMENT]: Because the fraud charged is defrauding 

Platinum. 

THE COURT: But the description of the fraud is not alleged as a 

$60,000 fraud. It doesn’t specify the amount of the fraud. The 

information clearly alleges the purpose of the information, but the 

guidelines calculations differ, because it talks about a $60,000 loss. 

[THE GOVERNMENT]: Well, perhaps, your Honor, the most helpful 

way to do this would be to break it down as follows. The information 

alleges a particular fraud with a particular victim. The victim of the 

fraud conduct alleged in the superseding information S2 is the 

Platinum Partners hedge fund. 

With respect to the degree, with respect to the extent of that fraud, we 
11

have stipulated and the facts support that they were defrauded to the 

tune of the $60,000 that they got on false pretenses as a result of the 

conspiracy between Mr. Huberfeld and Mr. Rechnitz. That is the 

fraud alleged in the superseding information. And that is the fraud 

for which there is an identifiable victim within the instrument. That's 

Platinum Partners. They were defrauded to the tune of $60,000. 

THE COURT: It’s hard to think that Platinum Partners was a victim. 

[THE GOVERNMENT]: Well, respectfully, your Honor, as a legal 

matter, they are . . . .

App’x at 71-73. 

Notwithstanding its concerns, the district court accepted Huberfeld’s guilty 

plea.

In early August 2018, Seabrook was retried—this time as the only 

defendant. Two weeks later, the jury returned guilty verdicts on both the 

conspiracy and substantive counts of honest services wire fraud.

On October 30, 2018, in advance of Huberfeld’s sentencing, the district 

court issued an order directing the parties to discuss, in relevant part, whether 

the court had discretion to consider COBA’s loss; how much of that loss should

Huberfeld have reasonably foreseen given Platinum’s financial condition at the 

time of the fraud; and whether the court could order restitution to COBA as a 
12

victim.2 Huberfeld disputed that the loss of $19 million was foreseeable to him at 

the time of COBA’s investment and attached expert reports that took the same 

position. He also requested an evidentiary hearing in the event that the district 

court was considering the $19 million loss to COBA with respect to either his

sentencing or restitution.

In late 2018, the Probation Office prepared Huberfeld’s presentence report. 

As did the plea agreement, the Probation Office calculated a Guidelines range of 

6 to 12 months’ imprisonment. However, Probation recommended an upwards

variance to 24 months’ imprisonment in part because the Guidelines range did 

not adequately take into account the full scope of the overall scheme.

In February 2019, Huberfeld appeared for his sentencing.3 At the outset, 

the district court made it clear that it was not satisfied using the agreed-upon 

2 Following the issuance of that order, COBA filed a motion requesting 

restitution. Huberfeld thereafter entered into an agreement with COBA to pay it 

$7 million. COBA acknowledged that this payment “fully and completely 

compensate[d] and satisf[ied] COBA with respect to Huberfeld,” and it formally 

withdrew its restitution motion. App’x at 88-89. The parties agreed that the 

district court could take into account this voluntary redress.

3 One week earlier, the district court sentenced Seabrook to 58 months’ 

imprisonment and $19 million in restitution to COBA, owed jointly and severally 

with Huberfeld and Rechnitz, neither of whom had yet been sentenced.
13

fraud guideline to calculate the sentencing range. The district court insisted that

“[s]omehow, in some way, we must take into consideration the purpose of the 

papering of the Platinum Partners file.” App’x at 105.

Both parties asserted that the district court could not rely on the uncharged 

conduct in determining the appropriate offense guideline section. The district 

court disagreed:

As I indicated at the allocution of the plea and now, I think that [the 

fraud] guideline is inadequate. The gravamen of this offense and why 

it is so pungent is the bribery of a union leader to invest a substantial 

amount of pension money and expense money in a risky investment, 

an investment which told the investor that the investment is 

speculative and the offering involves substantial risks of loss as 

described in the document.

App’x at 112.

The district court then concluded that, although it was permitted to take 

account of COBA’s $19 million loss as “relevant conduct” under Section 1B1.3, 

the fraud guideline still was inadequate because when the $19 million loss was 

applied to the fraud guideline, it yielded a sentencing range that was

“excessive.”4 Instead, the district court decided to use U.S.S.G. § 2B4.1, the 

4 As the district court explained, applying the fraud guideline to a $19 million

loss resulted in a sentencing range of 51 to 63 months’ imprisonment.
14

commercial bribery guideline. As it explained:

That [fraud guideline range] comes out to my mind excessive. But it 

is something that must stick in one’s mind. The purpose of this 

investment by someone who had to know better and had already 

been involved in frauds was to bribe someone to get money, to put a 

stumbling block, as it were, before a blind man and to blind the eyes 

of wise men and pervert the words of the righteous, which is what a 

bribe does. 

I urge that this is inappropriate because it is commercial bribery and 

really I should look at a different guideline, a guideline specifically 

tailored for commercial bribery. 

App’x at 115.

In order to apply the commercial bribery guideline, the district court 

invoked one of the fraud guideline’s “cross references,” U.S.S.G. § 2B1.1(c)(3), 

which allows the court to use another guideline if that offense’s conduct is 

alleged in the indictment or information. Presumably reasoning that the 

superseding information alleged the bribery conduct, the court cross referenced 

the commercial bribery guideline. It started with a base level of 8 and added “the 

fees that would be generated by a $20 million investment” as the value of the

improper benefit conferred on Huberfeld by the bribe. Id. The district court 

explained that: 

Hedge funds . . . operate on a 2 percent and 20 percent formula: 2 
15

percent each year of total money invested and 20 percent of gain as 

figured by the accountants of the hedge fund, counting not only 

market gain but also gain that has a book value nature because the 

investments are considered more valuable. Let’s look only at the 2 

percent. 2 percent times let’s say 1 year of investment comes to 

$400,000 of additional fees.

App’x at 115-16. 

The district court referred to the benefits table in the Guidelines and 

determined that it should add 14 levels based on the $400,000 amount, leading to 

what the district court mistakenly calculated as a range of 30 to 37 months’ 

imprisonment.5

The district court ultimately sentenced Huberfeld to 30 months’ 

imprisonment. It stated that it would have arrived at the same sentence 

irrespective of whether it used the fraud guideline or the commercial bribery 

guideline: “Whether I start with a 12-month guideline and vary upwards from it 

or whether I use the guideline calculation that led to 30 to 37 months of a 

guideline, I sentence Mr. Huberfeld to 30 months in custody.” App’x at 151.

At the end of the hearing, the district court addressed restitution. The 

court took the view that COBA was a victim of the charged wire-fraud offense 

5 As discussed below, the district court evidently misread the benefits table.
16

because reimbursing Rechnitz for the bribe was the purpose of the wire fraud 

and the bribe was a “mechanism” for “profit[ing] from th[e] crime.” App’x at 

154. It ordered Huberfeld to pay restitution to COBA in the amount of $19 

million, jointly and severally with Seabrook and Rechnitz.

This appeal followed.

DISCUSSION

Huberfeld argues that the district court erred by (1) applying the 

sentencing guideline for commercial bribery based on the uncharged bribery 

scheme—and by misapplying that guideline on its own terms; (2) imposing a 

substantively unreasonable sentence; and (3) ordering $19 million in restitution 

to COBA, an entity that was not a victim of the convicted wire-fraud offense. He 

also argues that the matter should be reassigned to another district court judge. 

We address each of these arguments in turn. 

I. Reasonableness of Sentence

We review a sentence on appeal for procedural and substantive 

reasonableness. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). A district 

court commits procedural error when, among other ways, it makes a mistake in 
17

its Guidelines calculation. Id. at 190. “Where we find significant procedural error, 

one proper course would be to remand to the district court so that it can either 

explain what it was trying to do, or correct its mistake and exercise its discretion 

anew.” Id.

A. Procedural Error

Huberfeld argues that the district court erred by calculating his Guidelines 

range under the commercial bribery guideline because he was not charged with

bribery and the superseding information did not allege the elements of any 

commercial bribery charge. The government concedes that the court used the 

wrong guideline but argues that the error was harmless because the district court 

stated that it would have imposed the same sentence under either guideline. We 

agree with Huberfeld that we cannot be confident that the district court would 

have imposed the same sentence if it had applied the correct guideline.

“A district court should normally begin all sentencing proceedings by 

calculating, with the assistance of the Presentence Report, the applicable 

Guidelines range.” Cavera, 550 F.3d at 189. In light of “[t]he Guidelines’ central 

role in sentencing,” an error related to the Guidelines range “can be particularly 

serious.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). “A district 
18

court that improperly calculates a defendant’s Guidelines range . . . has 

committed a significant procedural error.” Id. at 1345-46 (internal quotation 

marks, brackets, and citation omitted). 

The district court was obligated to use the fraud guideline as “the offense 

guideline section . . . applicable to the offense of conviction.” U.S.S.G. § 1B1.2(a).6

The parties stipulated to using the fraud guideline in their written plea

agreement. The Probation Office also determined that the fraud guideline was 

the correct one, and that it yielded a sentencing range of 6 to 12 months’ 

imprisonment.

Although the district court is free to cast aside the stipulations in the plea 

agreement and recommendations in the Presentence Report, it cannot ignore our 

direction on how to apply the Guidelines. Under our precedent, it was improper 

for the court to cross reference the commercial bribery guideline. The cross

reference provision permits a district court to use a different guideline only when 

6 A sentencing court must “[d]etermine the offense guideline section . . . 

applicable to the offense of conviction.” U.S.S.G. § 1B1.2(a). The offense of 

conviction here was conspiracy to commit wire fraud, 18 U.S.C. § 371, and the 

substantive offense was wire fraud, 18 U.S.C. § 1343. Wire fraud is governed by 

Section 2B1.1, see U.S.S.G. § 2B1.1 cmt.; U.S.S.G. App. A at 565.
19

“the conduct set forth in the count of conviction establishes an offense 

specifically covered by another guideline[].” U.S.S.G. § 2B1.1(c)(3). Use of the

cross reference is limited to circumstances where the conduct set forth in the 

convicted count of the charging document “actually constitutes an offense 

covered by another guideline.” United States v. Genao, 343 F.3d 578, 584 (2d Cir. 

2003). In other words, for the cross reference to be available here to allow the 

district court to apply the commercial bribery guideline, there must have been 

conduct set forth in the superseding information alleging that Huberfeld 

committed a commercial bribery offense.

But the count of conviction in the superseding information does not 

establish the elements of any commercial bribery offense. As the government 

itself underscored during the plea colloquy, “the superseding information 

doesn’t charge the broader [bribery] scheme.” App’x at 71. The information does 

not allege that Huberfeld acted with corrupt intent or that he solicited or made 

payment in exchange for a benefit, as is generally required by the commercial 

bribery statutes. See, e.g., 18 U.S.C. § 215; see also United States v. McElroy, 910 F.2d 

1016, 1021 (2d Cir. 1990) (“The term ‘corruptly’ is ordinarily understood as 

referring to acts done voluntarily and intentionally and with the bad purpose of 
20

accomplishing either an unlawful end or result, or a lawful end or result by some 

unlawful method or means.”) (internal quotations, brackets, and citation 

omitted). Rather, the information alleges only that the purpose of the $60,000 

payment was not the stated purpose of purchasing Knicks tickets—a detail that 

the government noted was “just a description.” App’x at 107. Accordingly, 

because the count of conviction in the superseding information does not allege 

conduct that establishes the elements of any commercial bribery offense, the 

district court was not permitted to invoke the cross reference to apply the 

commercial bribery guideline. 

Of course, after determining the correct guidelines range, the district court 

may vary from that range and may look elsewhere, including to other sentencing 

guidelines provisions, to set a benchmark for how much to vary upwards or 

downwards. See Kimbrough v. United States, 552 U.S. 85, 110 (2007); see also Spears 

v. United States, 555 U.S. 261, 266 (2009); Cavera, 550 F.3d at 196. But the district 

court erred after it applied the commercial bribery guideline. In order to calculate 

the Guidelines range under the commercial bribery guideline, the district court 

was required to identify the value of the “improper benefit to be conferred,” and 

to use that value to calculate the range. See U.S.S.G. § 2B4.1(b)(1). In identifying 
21

the value of the benefit, the district court seemed to arrive at its $400,000 figure

by estimating the fees earned by management at a hypothetical hedge fund, 

using a formula which was not part of the parties’ sentencing submissions or the 

presentence report. Even assuming arguendo that the court’s method of 

determining that figure was appropriate, a proposition of which we are dubious, 

it plainly made a mistake in deriving the offense level from that figure. A 14-level 

increase in the offense level is warranted only when the benefit conferred is 

greater than $550,000 (but less than $1,500,000); a $400,000 benefit conferred 

supports an increase of only 12 levels. See U.S.S.G. §§ 2B1.1(b)(1)(G)-(H), 

2B4.1(b)(1). That error elevated Huberfeld’s sentencing range from 24 to 30 

months (based on an offense level of 17) to 30 to 37 months (based on an offense 

level of 19).

We note that the district court cannot insulate its sentence from our review

by commenting that the Guidelines range made no difference to its 

determination when the record indicates that it did. The Guidelines, although 

advisory, are not a “body of casual advice, to be consulted or overlooked at the 

whim of a sentencing judge.” United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 

2005). We have often recognized the powerful “anchor[ing]” effect of a 
22

“miscalculated Guidelines range” on a district court’s thinking about the 

appropriate sentence, even where the court “asserted it was ‘not moved by’ the 

Guidelines.” United States v. Bennett, 839 F.3d 153, 163 & n.8 (2d Cir. 2016).

Tellingly, here the district court repeatedly acknowledged the importance of the 

Guidelines, stating “I need to find the guidelines first. I’m required to make a 

finding on the guidelines,”—and that to “find a just punishment,” the guidelines 

“are a means of getting there.” App’x at 102. It declined the government’s 

suggestion that it take the bribery conduct into account in its Section 3553(a)

analysis rather than in its selection of a guideline.

The district court “returned multiple times” to the Guidelines range in 

framing its choice of the appropriate sentence. See Bennett, 839 F.3d at 163. At a

minimum, it appears that the district court’s error “may well have anchored [its] 

thinking as to what an appropriate sentence would be.” Id. It is certainly not 

“clear” from this record, see Molina-Martinez, 136 S. Ct. at 1347, that the 

miscalculation had no influence on the sentence, see United States v. Dorvee, 616 

F.3d 174, 182 (2d Cir. 2010) (“If the district court miscalculates the typical 

sentence at the outset, it cannot properly account for atypical factors and we, in 

turn, cannot be sure that the court has adequately considered the §
23

3553(a) factors”); cf. United States v. Guzman, 282 F.3d 177, 183 (2d Cir. 2002) 

(vacating a sentence where the district court “began its computation” with “the 

offense level for the uncharged federal offense of bribery, rather than . . . the level 

prescribed for the offense of conviction.”). 

The importance of the correct Guidelines range is particularly evident in 

this case because the sentence was “conspicuous for its position as the lowest 

sentence within what the District Court believed to be the applicable range.”7

Molina-Martinez, 136 S. Ct. at 1347. Further, had the district court applied the 

fraud guideline, which provided for a sentencing range of 6 to 12 months, it 

would have had to vary upward by more than double the applicable range to 

reach the sentence, 30 months, that it imposed. The court did not explain why 

such a significant variance was appropriate. Absent such an explanation, we 

cannot be certain that the court’s calculus would not have been altered had it 

7 Notably, the correctly calculated range under the commercial bribery 

guideline—albeit the incorrect guideline, but the one of which the district court 

was cognizant throughout the hearing—provided 24 months rather than 30 

months as the lowest sentence in the applicable range. That was also, 

incidentally, the same sentence recommended by the Probation Office. We 

cannot be confident that this too would not have affected the district court’s 

thinking. 
24

appreciated the full extent of the upward variance it was contemplating. We 

therefore cannot be “confident,” despite the district court’s assertion to the 

contrary, that if the proper Guidelines range was before it—or even if it had 

properly calculated the commercial-bribery guideline range—the court would 

have imposed the same sentence of 30 months’ imprisonment. See e.g., United 

States v. Malki, 609 F.3d 503, 511 (2d Cir. 2010) (“Although [the district court] also 

stated that a lesser sentence would be ‘inappropriate,’ we cannot be confident 

that [it] would have imposed the same sentence had [it] understood that the 

bottom of the correct guideline was 58 months less than the bottom of the 

guideline [it] thought was applicable.”).

Even assuming, arguendo, the district court would have imposed the same 

sentence under the fraud guideline by varying upward, it did not state its 

justifications with enough specificity to allow us to affirm on this ground. A 

district court must “determine whether to impose a Guidelines or a nonGuidelines sentence.” United States v. McGinn, 787 F.3d 116, 129 (2d Cir. 2015). A 

district court that chooses to “impos[e] a non-Guidelines sentence . . . should say 

why [it] is doing so,” bearing in mind that “a major departure from the 

Guidelines should be supported by a more significant justification than a minor 
25

one.” Cavera, 550 F.3d at 193 (brackets, internal quotation marks, and citation 

omitted). A non-Guidelines sentence requires a written statement of reasons that 

lays out the justification for a non-Guidelines sentence “with specificity.” Id. at 

192-93 (citation omitted); see 18 U.S.C. § 3553(c)(2). This requirement is not an 

empty formality. See Gall v. United States, 552 U.S. 38, 46, 49-50 (2007). 

Accordingly, we vacate and remand for Huberfeld’s resentencing. On 

remand, the district court must use Section 2B1.1, the fraud guideline, as “the 

offense guideline section . . . applicable to the offense of conviction.” U.S.S.G. § 

1B1.2(a). If the district court desires to impose an upward variance based on the 

seriousness of the crime, it may. “Notwithstanding the Sentencing Commission’s 

assessment, reflected in the correctly applied Guidelines, of the seriousness of the 

offense, in selecting an appropriate sentence the district court may make its own 

evaluation of the characteristics of the defendant, and the need of the sentence to 

punish, deter, and protect the public.” United States v. Wernick, 691 F.3d 108, 119

(2d Cir. 2012). Moreover, in selecting the appropriate sentence, the district court 

is also required to consider “the nature and circumstances of the offense,” 18 

U.S.C. § 3553(a)(1) (emphasis added), and thus may consider the factual context 

of the fraud as well as the statutory elements of the offense. It must do so, 
26

however, by complying with the various procedural requirements, set forth 

above, which both ensure that the sentencing court carefully considers the need 

for a variance, and allows for meaningful appellate review. See 18 U.S.C. § 

3553(c)(2).

B. Substantive Reasonableness

Huberfeld argues that his custodial sentence is substantively unreasonable 

because the district court focused exclusively on the uncharged bribery offense 

rather than the offense of conviction. He also argues the district court gave 

insufficient weight to certain Section 3553(a) factors.

Because we hold that Huberfeld must be resentenced due to procedural 

error, we decline to rule on the issue of substantive unreasonableness. See Gall,

552 U.S. at 51 (the appellate court “must first ensure that the district court 

committed no significant procedural error,” and “[a]ssuming that the district 

court’s sentencing decision is procedurally sound, the appellate court should 

then consider the substantive reasonableness of the sentence”).

II. Restitution

Huberfeld next argues that the district court erred in ordering him to pay 

$19 million in restitution to COBA because COBA was not a direct or proximate 
27

victim of the wire-fraud offense. The MVRA requires a sentencing court to order 

that “the defendant make restitution to the victim of the offense” for certain 

crimes, including where (a) the offense was “committed by fraud or deceit” and 

(b) “an identifiable victim or victims has suffered a physical injury or pecuniary 

loss.” 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii), (c)(1)(B). “Section 3663A(a)(1) does 

not authorize the court to order a defendant to pay restitution to any person who 

was not a victim of the offense of which the defendant was convicted.” United

States v. Reifler, 446 F.3d 65, 121 (2d Cir. 2006). The MVRA defines a victim as “a 

person directly and proximately harmed as a result of the commission of an 

offense for which restitution may be ordered.” 18 U.S.C. § 3663A(a)(2). 

As we did with respect to the district court’s Guidelines analysis, we 

similarly conclude that it erred by imposing a restitution order against Huberfeld 

as if he were convicted of the uncharged bribery scheme. Our precedent 

forecloses such an expansive view of a “victim” under the MVRA. See In re Local 

#46 Metallic Lathers Union & Reinforcing Iron Workers & Its Associated Benefit & 

Other Funds, 568 F.3d 81, 85-86 (2d Cir. 2009). 

In Local #46, a business owner issued checks to fictitious vendors; cashed 

those checks; and used the proceeds to pay his employees in cash, thereby 
28

avoiding obligations to the IRS and to the employees’ union. Id. at 82-83. He was 

initially charged with money laundering and defrauding the union, but the 

government agreed not to bring the latter charge in exchange for his guilty plea. 

Id. at 83-84. At the defendant’s sentencing, the union sought restitution, claiming 

that it was a victim of the money-laundering scheme because the money 

laundering was undertaken with the purpose of making cash payments to 

employees, which deprived the union of “benefits due under collective 

bargaining agreements.” Id. at 85. 

We affirmed the district court’s denial of the union’s restitution request, 

noting that the defendant “admittedly had a plan to obtain laundered money 

and then use that money to pay [the company’s] employees in cash and 

simultaneously avoid paying taxes and union obligations.” Id. at 86. But 

“[n]otwithstanding what [the defendant] planned to do with the laundered 

funds once he had them in his possession, the ‘offense’ to which he pleaded 

guilty was solely and exclusively the conspiracy to engage in money 

laundering.” Id. at 87. The union’s “expanded definition of ‘victim,’” we said, 

“ignores the term ‘offense’ in § 3663A and would force the sentencing court to 

ascertain some overarching uncharged scheme or conspiracy, one element of 
29

which is the specific offense to which the defendant pleaded guilty.” Id. Rejecting 

that approach, we determined that the union was not entitled to restitution

under the MVRA. See id. at 88.

Local #46 resolves this issue in Huberfeld’s favor.8 The government does 

not dispute that “none of the conduct within the charged wire fraud conspiracy 

itself injured COBA.” Appellee’s Br. at 79. Instead, it emphasizes that the 

purpose of the charged scheme was to mask the bribe, which ultimately hurt 

COBA. But that rationale grafts an “overarching uncharged scheme” onto a 

8 Contrary to the government’s argument, Local #46 does not reflect a “flawed 

approach” to interpreting the MVRA, which this Court has abandoned in 

subsequent decisions. Appellee’s Br. at 80. Rather, the decisions on which the 

government relies are cases in which we found that it was appropriate for 

restitution to encompass losses that were imposed in service of the offense of 

conviction. See, e.g., United States v. Desnoyers, 708 F.3d 378, 390 (2d Cir. 2013); 

United States v. Archer, 671 F.3d 149, 171-72 (2d Cir. 2011); United States v. Paul, 

634 F.3d 669, 676-77 (2d Cir. 2011). In Local #46, as in Huberfeld’s case, the fraud

of conviction was arguably in service of a larger scheme that caused the union’s 

losses, but those losses were not effectuated in furtherance of the fraudulent 

scheme itself. See 568 F.3d at 87. Thus, Local #46 is fully consistent with and 

distinguishable from the cases on which the government relies. In each of those 

cases, therefore, the conviction was for the overarching scheme, and restitution 

was sought for actions that were within and necessary to that “single scheme,” 

Archer, 671 F.3d at 171-72, but here it is the opposite: the conviction was for a 

scheme that was outside of the uncharged, overarching scheme of defrauding 

COBA.
30

charging instrument that fails to allege that scheme. Local #46, 568 F.3d at 87. In 

short, it is not enough for the ultimate purpose of the alleged wire fraud to be 

detrimental to COBA. Under the MVRA, COBA must have been directly and 

proximately harmed by the convicted conduct.

COBA’s losses could not have been caused by the convicted wire-fraud 

conduct because the wire fraud postdated COBA’s investment. While the 

superseding information alleges that the purpose of the wire fraud was to 

reimburse Rechnitz for paying off Seabrook, the convicted wire fraud could not 

have influenced whether the investment was made in the first instance. Our 

recent decision in United States v. Calderon supports this conclusion. 944 F.3d 72, 

97 (2d. Cir. 2019) (finding that restitution was inappropriate because the charged 

fraud occurred “after [the domestic banks] had already decided to offer loans to 

the relevant foreign banks.”). Although the government argues that the charged 

scheme stretched from 2013 to 2015 “as alleged in the Superseding Indictment,” 

Appellee’s Br. at 81, the government references the wrong charging instrument. 

Huberfeld pled guilty to the superseding information limited to events in 

December 2014: it stated that Huberfeld “conspire[d]” with others “[i]n or 

around December 2014” and listed overt acts that occurred that same month. 
31

App’x at 41-43. Accordingly, COBA does not qualify as a victim under the 

MVRA. We therefore reverse the district court’s $19 million restitution award to 

COBA.

III. Reassignment

Finally, Huberfeld argues for reassignment to a different district court 

judge. Reassignment is not warranted. “We will grant a request for reassignment 

on remand only in ‘unusual circumstances.’” United States v. Singh, 877 F.3d 107, 

122 (2d Cir. 2017) (quoting United States v. Brennan, 395 F.3d 59, 75 (2d Cir. 2005)). 

Huberfeld has failed to show that this is the type of rare circumstance where the 

distinguished district court judge would not follow our guidance. 

CONCLUSION

For the foregoing reasons, we vacate the district court’s judgment of 

conviction and reverse the restitution order. We remand for futher proceedings 

consistent with this opinion.