United States v. Feng Ling Liu

636 F. App'x 65

• Court: Court of Appeals for the Second Circuit
• Decided: January 27, 2016
• Docket: 14-3104 (L) 14-4390 (Con)
• Status: Unpublished

Opinion

SUMMARY ORDER

Appellant Feng Ling Liu appeals from a final judgment entered by the United States District Court for the Southern District of New York. Liu was convicted of conspiracy to commit immigration fraud in violation of 18 U.S.C. § 371. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. Prosecutorial Misconduct and Ineffective Assistance of Counsel

Following her conviction, Liu moved for judgment of acquittal under Federal Rule of Criminal Procedure 29 or, in the alternative, to set aside the jury verdict under Rule 33. In her motion, Liu advanced a number of claims of prosecutorial misconduct and also asserted that her trial counsel rendered constitutionally ineffective assistance. In a thorough and well-reasoned opinion, the district court considered and rejected each of Liu’s many arguments. See United States v. Feng Ling Liu, No. 12-CR-934-01 (RA), 2015 WL 4460898 (S.D.N.Y. July 20, 2015). On appeal, Liu renews each argument. Finding no error in the district court’s opinion, we affirm substantially for the reasons stated therein.

II. Sentencing Enhancements

We review criminal sentences for reasonableness, which includes both a procedural component and a substantive component, under an abuse of discretion standard. United States v, Bonilla, 618 F.3d 102, 108 (2d Cir.2010). “A district court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.2012) (relying on Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’ ” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (emphasis in original) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007)).

With respect to the procedural reasonableness of her sentence, Liu challenges the district court’s application of enhancements for (1) an offense involving one hundred or more fraudulent documents under U.S.S.G. § 2L2.1(b)(2)(C), (2) Liu’s leadership role in the conspiracy under § 3B1.1(a), and (3) her abuse of a position of trust under § 3B1.3. Liu’s arguments are without merit. First, for § 2L2.1(b)(2)(C) to apply, (a) there must be evidence regarding the relevant “quantity of illicit or fraudulent goods” and (b) that evidence must be “specific to the defendant.” United States v. Archer, 671 F.3d 149, 162 (2d Cir.2011). Here, as to the first element, there is no dispute that Liu’s law firm filed • hundreds of asylum applications, and the district court heard testimony, from multiple witnesses, that the vast majority of the applications were fraudulent. As to the second element, the district court heard testimony that Liu directed the persons immediately responsible for filling out the fraudulent applications and reviewed and edited those applications. The district court did not clearly err in crediting this testimony, and application of the enhancement was therefore proper.

Second, the district court correctly applied an enhancement for Liu’s leadership role. Whether a defendant qualifies as a “leader” for purposes of § 3B1.1 “depends upon the degree of discretion exercised by [the defendant], the nature and degree of [the defendant’s] participation in planning or organizing the offense, and the degree of control and authority exercised over the other members of the conspiracy.” United States v. Paccione, 202 F.3d 622, 624 (2d Cir.2000) (quoting United States v. Beaulieau, 969 F.2d 375, 379-80 (2d Cir.1992)). The evidence of Liu’s leadership role in what was an extensive fraud involving numerous participants was overwhelming and included, without limitation, that Liu acted as the “boss” of the firm filing the fraudulent asylum applications, met with clients and discussed what types of claims they would make, edited story-writers’ drafts, signed asylum applications, and instructed an employee to attend immigration hearings as a translator to gather information on what types of questions would be asked.

Third, the district court did not err in applying the enhancement for abuse of “a position of public or private trust.” U.S.S.G. § 3B1.3. In United States v. Walker, we concluded that an attorney abused a position of trust when he “submitted false asylum applications on behalf of hundreds of immigrants.” 191 F.3d 326, 338 (2d Cir.1999). Liu argues that our holding in Walker turned on the fact that some of the immigrant clients in that case were unaware of the fraud whereas, according to Liu, the applicants in this case consented to the doctoring of their applications. Wé need not decide whether Liu is correct because, even if Walker’s reach is limited in that manner, Liu abused her position of “public trust,” see U.S.S.G. § 3B1.3, with respect to the Immigration Court when, as an officer of the court, she signed and submitted fraudulent applications. Cf United States v. Ntshona, 156 F.3d 318, 321 (2d Cir.1998); United States v. Goldman, 447 F.3d 1094, 1096 (8th Cir.2006) (“A defendant acting in his capacity as an attorney occupies a position of public trust.”).

We likewise reject Liu’s challenge to the substantive reasonableness of her sentence, which is premised on the disparity between her sentence and that of her co-conspirators’. Our “concern about unwarranted disparities is at a minimum” when, as here, the sentence imposed by the district court “is within the Guidelines range.” United States v. Irving, 554 F.3d 64, 76 (2d Cir.2009) (quoting United States v. Willingham, 497 F.3d 541, 545 (5th Cir.2007)). Regardless, the district court explicitly considered the need to avoid unjustified disparities and explained that Liu’s sentence was based on her role as a leader and her position as a lawyer. Accordingly, we find no error in Liu’s sentence.

III.. Forfeiture

Liu also challenges the district court’s forfeiture order. We have previously upheld this forfeiture order as against one of Liu’s codefendants, see United States v. Feng Li, No. 14-3924-CR, 2015 WL 7005595, at *4-5 & n. 3 (2d Cir. Nov. 12, 2015), and Liu provides no persuasive reason to depart from that ruling. Even if Liu were correct in the abstract that a district court may deduct costs associated with this type of fraud from the forfeiture amount, Liu’s conclusory assertions are insufficient to warrant reversing the forfeiture order in this case. See United States v. Mandell, 752 F.3d 544, 553-54 (2d Cir.2014).

We have considered Liu’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.