     15-231-cr
     United States v. Xu

                         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 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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   23rd day of March, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PETER W. HALL,
 8                          Circuit Judges
 9            JANE A. RESTANI,1
10                          Judge.
11
12   - - - - - - - - - - - - - - - - - - - -X
13   UNITED STATES OF AMERICA,
14            Appellee,
15
16                -v.-                                           15-231-cr
17
18   XIAO FENG XU,
19            Defendant-Appellant.
20   - - - - - - - - - - - - - - - - - - - -X
21
22   FOR APPELLANT:                          NICHOLAS J. PINTO, New York, NY.
23
24   FOR APPELLEE:                           BRIAN R. BLAIS (Diane Gujarati, on
25                                           the brief), for Preet Bharara,

     1
          Honorable Jane A. Restani, Judge for the United States Court of
     International Trade, sitting by designation.

                                                1
 1                                United States Attorney for the
 2                                Southern District of New York, New
 3                                York, NY.
 4
 5        Appeal from a judgment of the United States District Court
 6   for the Southern District of New York (Stein, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the judgment of the district court be AFFIRMED.
10
11        Xiao Feng Xu appeals from the judgment of the United States
12   District Court for the Southern District of New York (Stein,
13   J.) convicting him of immigration fraud and conspiracy to commit
14   immigration fraud. Xu was sentenced chiefly to 12 months’
15   imprisonment. Xu challenges the reasonableness of his
16   sentence. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.

19        1. We review a sentence for procedural reasonableness
20   under a “deferential abuse-of-discretion standard.” Gall v.
21   United States, 552 U.S. 38, 41 (2007). That means a district
22   court’s application of the Sentencing Guidelines is reviewed
23   de novo and its factual findings are reviewed for clear error.
24   United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A
25   sentence is procedurally unreasonable if the district court
26   “fails to calculate (or improperly calculates) the Sentencing
27   Guidelines range, treats the Sentencing Guidelines as
28   mandatory, fails to consider the § 3553(a) factors, selects a
29   sentence based on clearly erroneous facts, or fails adequately
30   to explain the chosen sentence.” United States v. Aldeen, 792
31   F.3d 247, 251 (2d Cir. 2015) (quoting United States v. Chu, 714
32   F.3d 742, 746 (2d Cir. 2013)). When a district court deviates
33   from the Sentencing Guidelines range, “it must consider the
34   extent of the deviation and ensure that the justification is
35   sufficiently compelling to support the degree of the variance.”
36   Id. at 252 (internal quotation marks omitted).

37        Xu fails to establish that the district court committed any
38   procedural error. Xu argues that the district court failed to
39   adequately consider: his cooperation with the government, his
40   early plea, his personal characteristics, and the need to avoid

                                    2
 1   unwarranted sentencing disparities. To the contrary, the
 2   district court thoroughly addressed each of these factors.
 3   Indeed, the district court found them sufficiently persuasive
 4   that it sentenced Xu to 12 months’ imprisonment – far below the
 5   Guidelines range of 37 to 46 months’ imprisonment. Moreover,
 6   in imposing its sentence, the district court explicitly cited
 7   the § 3553(a) factors and the government’s 5K1.1 letter
 8   disclosing Xu’s substantial assistance. Finally, the district
 9   court did not commit error by sentencing Xu to 12 months while
10   Lin, his co-defendant, was sentenced to 4 months. Unlike Lin,
11   Xu devised and was the core of the fraudulent scheme. Xu cannot
12   make out a claim for procedural unreasonableness.

13        2. Our review of the substantive reasonableness of a
14   sentence is “particularly deferential”: we will set aside
15   sentences as substantively unreasonable “only in exceptional
16   cases where the trial court’s decision cannot be located within
17   the range of permissible decisions”; that is, where the sentence
18   “shocks the conscience,” “constitutes a manifest injustice,”
19   or “would damage the administration of justice.” Aldeen, 792
20   F.3d at 255 (internal brackets and quotation marks omitted).

21        The district court sentenced Xu to less than one third of
22   the bottom of the applicable Guidelines range, despite Xu’s
23   fraudulent scheme lasting over six years and involving over 500
24   phony asylum applications. True, Xu provided substantial and
25   prompt assistance to the government, but the district court was
26   well within its discretion to impose a sentence of 12 months’
27   imprisonment, which amounts to less than one day per fraudulent
28   application.

29        Accordingly, and finding no merit in Xu’s other arguments,
30   we hereby AFFIRM the judgment of the district court.

31                                FOR THE COURT:
32                                CATHERINE O’HAGAN WOLFE, CLERK




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