     15-2716-cr
     United States v. Xia

                                    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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 10th day of March, two thousand seventeen.
 4   PRESENT:
 5               PETER W. HALL,
 6               DEBRA ANN LIVINGSTON,
 7                     Circuit Judges.
 8               NICHOLAS G. GARAUFIS,
 9                     District Judge.*
10   _____________________________________
11   United States of America,
12                           Appellee,
13
14                      v.                                                            No. 15-2716-cr
15
16   Feng Li, AKA Sealed Defendant 3, Shuran Liu,
17   AKA Sealed Defendant 4, AKA Harry, Yuchang
18   Miao, AKA Sealed Defendant 5, Rui Yang, AKA
19   Sealed Defendant 6, AKA Sunny Yang, AKA
20   Yang, Ms., Wen Ting Zheng, AKA Sealed
21   Defendant 7, Guo Qin Miao, AKA Sealed
22   Defendant 8, AKA Lillian, Vanessa Bandrich,
23   AKA Sealed Defendant 2, Feng Ling Liu,
24                           Defendants,
25
26   Shu Feng Xia, AKA Sealed Defendant 9, AKA
27   Kevin LNU,
28                  Defendant-Appellant.
29   _____________________________________


     * Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by
     designation.
 1
 2   FOR APPELLEE:                                                  Patrick Egan, Rebecca Mermelstein,
 3                                                                  and Karl Metzner, Assistant United
 4                                                                  States Attorneys, of counsel, for Preet
 5                                                                  Bharara, United States Attorney,
 6                                                                  Southern District of New York, New
 7                                                                  York, NY.
 8
 9   FOR DEFENDANT-APPELLANT:                                       Brendan White, White & White, New
10                                                                  York, NY.
11
12          Appeal from a judgment of the United States District Court for the Southern District of

13   New York (Abrams, J.).

14          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

15   DECREED that the judgment of the district court is AFFIRMED.

16          Defendant-Appellant Shu Feng Xia appeals the district court’s sentence of ten months and

17   two days’ imprisonment, which was the time he had served prior to resentencing. He also

18   challenges the district court’s imposition of forfeiture liability jointly and severally with his

19   co-defendants in the amount of $965,000. The Defendant challenges the substantive

20   reasonableness of his sentence of imprisonment and challenges the constitutionality of the

21   forfeiture under the Excessive Fines Clause of the Eighth Amendment. We assume the parties’

22   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

23          Because the Defendant requested in his sentencing submissions the exact sentence the

24   district court actually imposed, see Appendix at 141, we are convinced that, to the extent that there

25   was any substantive unreasonableness in the district court’s sentence, it was invited error. Under

26   the invited error doctrine, “a party may not complain on appeal of errors that he himself invited or

27   provoked the district court to commit.” United States v. Wells, 519 U.S. 482, 488 (1997)

28   (alterations omitted) (quoting United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993).

                                                       2
 1   “Denying relief even for plain errors where a defendant deliberately provokes a procedural

 2   irregularity, the invited error doctrine seeks to avoid rewarding mistakes stemming from a

 3   defendant’s own ‘intelligent, deliberate course of conduct’ in pursuing his defense.” United States

4    v. Bastian, 770 F.3d 212, 218 (2d Cir. 2014) (quoting United States v. Ferguson, 758 F.2d 843, 852

5    (2d Cir. 1985)).

 6           The primary argument the Defendant advances in support of his contention of substantive

 7   unreasonableness is that the sentence creates an unwarranted disparity between his sentence and

 8   those of other similarly situated defendants. But the Defendant’s resentencing submission

 9   specifically concedes that “imposition of the Requested Sentence [of time served] will not result in

10   an unwarranted sentencing disparity between Mr. Xia and similarly-situated co-defendants.”

11   Appendix at 143. The doctrine of invited error bars the Defendant’s claim.

12           Nowhere in the record can we find any indication that the Defendant raised before the

13   district court the issue of the constitutionality of the forfeiture under the Excessive Fines Clause.

14   Therefore, we review for plain error. See, e.g., United States v. Aldeen, 792 F.3d 247, 253 (2d Cir.

15   2015) (objections to a sentence not raised before the sentencing court are reviewed for plain error).

16           Here, we find no plain error. The district court imposed joint and several forfeiture

17   liability; inherent in the district court’s order is the Defendant’s right to pursue his jointly and

18   severally liable co-defendants for contribution in proportion to their actual culpability. This is fatal

19   to the Defendant’s ability to carry his burden, see United States v. Castello, 611 F.3d 116, 120 (2d

20   Cir. 2010), of demonstrating the gross disproportionality of the ordered forfeiture.

21           Accordingly, the judgment of the district court is AFFIRMED.

22                                                   FOR THE COURT:
23                                                   Catherine O’Hagan Wolfe, Clerk
                                                       3
