United States v. Feng Li

682 F. App'x 56

• Court: Court of Appeals for the Second Circuit
• Decided: March 10, 2017
• Docket: 15-2716-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Shu Feng Xia appeals the district court’s sentence of ten months and two days’ imprisonment, which was the time he had served prior to resen-tencing. He also challenges the district court’s imposition of forfeiture liability jointly and severally with his co-defendants in the amount of $965,000. The Defendant challenges the substantive reasonableness of his sentence of imprisonment and challenges the constitutionality of the forfeiture under the Excessive Fines Clause of the Eighth Amendment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Because the Defendant requested in his sentencing submissions the exact sentence the district court actually imposed, see Appendix at 141, we are convinced that, to the extent that there was any substantive unreasonableness in the district court’s sentence, it was invited error. Under the invited error doctrine, “a party may not complain on appeal of errors that he himself invited or provoked the district court to commit.” United States v. Wells, 519 U.S. 482, 488, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (alterations omitted) (quoting United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993). “Denying relief even for plain errors where a defendant deliberately provokes a procedural irregularity, the invited error doctrine seeks to avoid rewarding mistakes stemming from a defendant’s own ‘intelligent, deliberate course of conduct’ in pursuing his defense.” United States v. Bastian, 770 F.3d 212, 218 (2d Cir. 2014) (quoting United States v. Ferguson, 758 F.2d 843, 852 (2d Cir. 1985)).

The primary argument the Defendant advances in support of his contention of substantive unreasonableness is that the sentence creates an unwarranted disparity between his sentence and those of other similarly situated defendants. But the Defendant’s resentencing submission specifically concedes that “imposition of the Requested Sentence [of time served] will not result in an unwarranted sentencing disparity between Mr. Xia and similarly-situated co-defendants.” Appendix at 143. The doctrine of invited error bars the Defendant’s claim.

Nowhere in the record can we find any indication that the Defendant raised before the district court the issue of the constitutionality of the forfeiture under the Excessive Fines Clause. Therefore, we review for plain error. See, e.g., United States v. Aldeen, 792 F.3d 247, 253 (2d Cir. 2015) (objections to a sentence not raised before the sentencing court are reviewed for plain error).

Here, we find no plain error. The district court imposed joint and several forfeiture liability; inherent in the district court’s order is the Defendant’s right to pursue his jointly and severally liable co-defendants for contribution in proportion to their actual culpability. This is fatal to the Defendant’s ability to carry his burden, see United States v. Castello, 611 F.3d 116, 120 (2d Cir. 2010), of demonstrating the gross disproportionality of the ordered forfeiture.

Accordingly, the judgment of the district court is AFFIRMED.