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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