United States v. Gesanu Xiong

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 7, 2025
• Docket: 21-4467
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4467

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GESANU TIMOTHY XIONG,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:20-cr-00174-MOC-DSC-1)

Submitted: September 30, 2025 Decided: October 7, 2025

Before KING, AGEE, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: Anthony Martinez, Federal Public Defender, Joshua B. Carpenter, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Asheville, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Gesanu Timothy Xiong appeals the 100-month sentence imposed following his

guilty plea to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On

appeal, Xiong argues that the district court erred in establishing his base offense level under

the Sentencing Guidelines by counting his North Carolina conviction for possession with

intent to manufacture, sell, and deliver marijuana as a “controlled substance offense.” See

U.S. Sentencing Guidelines Manual § 2K2.1(a)(3) (2018). Xiong also contends that the

district court erred by assigning him two criminal history points for a prior South Carolina

conviction for which he received an alternative sentence of either 90 days’ imprisonment

or a $1,000 fine.

Before addressing the merits of the appeal, we grant in part and deny in part Xiong’s

motion to remove this case from abeyance and to expedite this court’s decision.

Specifically, we grant Xiong’s motion to remove this case from abeyance, and we deny as

moot his motion to expedite. In addition, for the reasons that follow, we vacate the sentence

and remand for resentencing.

We first address Xiong’s challenge to the district court’s calculation of his base

offense level, reviewing “the district court’s legal conclusions de novo and its factual

findings for clear error.” United States v. Pena, 952 F.3d 503, 512 (4th Cir. 2020) (citation

modified). Xiong argues that his North Carolina marijuana conviction does not

categorically qualify as a controlled substance offense. In support, he asserts that the

statute under which he was convicted included hemp in the definition of marijuana,

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whereas neither current North Carolina law nor federal law treats hemp as a controlled

substance.

Under the Guidelines, a “controlled substance offense” is “an offense under federal

or state law, punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manufacture, import, export,

distribute or dispense.” USSG § 4B1.2(b). While this appeal was pending, we held that a

“time-of-conviction approach applies” when determining whether a prior conviction

qualifies as a Guidelines controlled substance offense. United States v. Nelson, __ F.4th

__, __, No. 22-4658, 2025 WL 2372029, at *6 (4th Cir. Aug. 15, 2025). And here, Xiong’s

North Carolina conviction categorically qualified as a controlled substance offense at the

time of that conviction. We therefore conclude that the district court did not err by applying

USSG § 2K2.1(a)(3).

Turning to Xiong’s argument that his alternative sentence for the South Carolina

conviction did not qualify for two criminal history points, Xiong did not raise this argument

in the district court. Accordingly, we review his argument for plain error. See United

States v. Green, 996 F.3d 176, 185 (4th Cir. 2021). To establish plain error, Xiong “has

the burden of showing: (1) that an error was made, (2) that the error was plain, and (3) that

the error affected his substantial rights.” Id. “Even then, correction of an error is

discretionary, and we will exercise that discretion only if an error would result in a

miscarriage of justice or would otherwise seriously affect the fairness, integrity or public

reputation of judicial proceedings.” Id. (citation modified).

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We conclude that the district court erred by assigning Xiong’s South Carolina

conviction two criminal history points. Because Xiong received an alternative sentence of

90 days’ imprisonment or a $1,000 fine, the court should have applied only one criminal

history point for that offense. See USSG § 4A1.2 cmt. n.4 (“A sentence which specifies a

fine or other non-incarcerative disposition as an alternative to a term of imprisonment . . .

is treated as a non-imprisonment sentence.”); USSG § 4A1.1(c) (directing application of

one criminal history point for non-imprisonment sentences and sentences of imprisonment

of less than 60 days). This error was also plain, given that it contradicted the clear

instructions of the Guidelines. See United States v. Davis, 855 F.3d 587, 595-96 (4th Cir.

2017) (noting that error is plain where “the explicit language of a statute or rule resolves

the question.”).

Furthermore, absent the extra criminal history point, Xiong’s criminal history

category would have been III instead of IV and, in turn, his Guidelines range would have

been lower. See USSG ch. 5, pt. A (sentencing table). We thus conclude that the error

affected Xiong’s substantial rights. See Green, 996 F.3d at 186 (recognizing that defendant

generally demonstrates error affected substantial rights “once he establishes that the district

court mistakenly deemed applicable an incorrect, higher Guidelines range” (citation

modified)). Accordingly, we exercise our discretion to correct the error. See

Rosales-Mireles v. United States, 585 U.S. 129, 145 (2018) (“In the ordinary case, . . . the

failure to correct a plain Guidelines error that affects a defendant’s substantial rights will

seriously affect the fairness, integrity, and public reputation of judicial proceedings.”).

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Therefore, we vacate the sentence and remand for resentencing. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED