United States v. Xian

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 12, 2024
• Docket: 22-1030
• Status: Unpublished

Opinion

Appellate Case: 22-1030 Document: 010111014230 Date Filed: 03/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1030 (D.C. No. 1:19-CR-00084-RM-1) HUOSHENG XIAN, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, EBEL, and KELLY, Circuit Judges. ________________________________

Huosheng Xian appeals his mandatory minimum sentences for crimes related

to his participation in a conspiracy to manufacture and distribute large quantities of

marijuana. Xian contends that the district court clearly erred in finding that he did

not satisfy the requirements of the statutory safety valve for mandatory minimum

sentences. We hold that Xian is ineligible for the statutory safety valve because, as

we explained in United States v. Zhong, Xian did not disclose to the government

information sufficient to establish his mens rea for the crimes of which he was

convicted, and therefore did not provide “all information and evidence” he had

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-1030 Document: 010111014230 Date Filed: 03/12/2024 Page: 2

“concerning the . . . offenses” of conviction, as required by 18 U.S.C. § 3553(f)(5).

___ F.4th ____ (10th Cir. 2024) (slip op., at 12–14). Accordingly, we affirm the

district court.

We resolve this case using the same material facts as we considered in our

concurrently-filed opinion in Zhong, ___ F.4th at ____ (slip op., at 2–7), and for the

same reasons we explained in that case. Accordingly, we repeat the facts and

reasoning only to the extent necessary to explain the disposition of Xian’s appeal.

As we explained in Zhong, “a defendant seeking safety-valve relief must

‘truthfully provide[] to the Government all information and evidence the defendant

has concerning the offense or offenses that were part of the same course of

conduct,’” and must do so before the defendant’s sentencing hearing. ___ F.4th at

____ (slip op., at 8) (quoting 18 U.S.C. § 3553(f)(5)). The statutory requirement to

provide “‘all information’ means ‘all information.’” Id. at ____ (slip op., at 17). A

defendant’s state of mind is among the information “the defendant has,” § 3553(f)(5),

so the requirement “includes a defendant’s mens rea.” ___ F.4th at ____ (slip op., at

15, 17). Safety-valve relief may not be granted “when to do so would directly

undermine the jury’s verdict,” so a defendant must provide, at a bare minimum,

information sufficient to demonstrate that he had the mens rea of his crime of

conviction. Id. at ____ (slip op., at 9) (internal quotation marks and alteration

omitted).

Xian did not provide the government with information sufficient to prove his

mens rea for the crimes of which he was convicted. In order to satisfy the

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requirements of § 3553(f)(5), Xian and his co-defendant, Zhong, provided the

government with a joint proffer letter and joint written addendum prior to sentencing.

In those written materials, Xian provided information sufficient to prove that he had

the mens rea of negligence—that he “knew or most definitely should have known”

that he was participating in a criminal marijuana-trafficking conspiracy. R. Vol. II

(sealed) at 58. However, a jury convicted Xian of participating in the conspiracy not

only “knowingly,” but also “intentionally,” and “voluntarily,” “with the intent to

advance its purposes.” R. Vol. I at 183, 189–90, 199. Likewise, a jury convicted

Xian of intentional conduct on two other counts. See, e.g., id. at 183–84, 192, 196,

199, 200. Furthermore, for the reasons we explained in Zhong, Xian’s admission that

the “knew or should have known” that he was living for free in exchange for his

assistance is sufficient only to show negligence—not knowledge, and not the higher

mens rea of each of his crimes of conviction. R. Vol. II (sealed) at 58; see Zhong,

___ F.4th at ____ (slip op., at 12–14) (citing United States v. Kalu, 791 F.3d 1194,

1208 (10th Cir. 2015)). Xian did not provide in his proffer letter or addendum

information sufficient to show purpose or intent.

As we explained in Zhong, for the district court to conclude that Xian

“provided the government with all the information [he] had concerning [his] offenses

of conviction” would have contradicted the jury’s finding that he “did possess the

necessary mens rea for each count,” namely, “intent.” ___ F.4th at ____ (slip op., at

14). Xian “cannot have disproved by a preponderance of the evidence what the jury

found true beyond a reasonable doubt.” Id. Therefore, “it was not clearly erroneous

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for the district court to conclude that [Xian] failed to provide the Government with

all the information [he] had concerning the offense of conviction.” Id. at ____ (slip

op., at 15). The district court therefore did not clearly err in concluding that he did

not qualify for safety-valve relief.

Xian makes several distinct arguments that the district court otherwise clearly

erred in denying safety-valve relief. First, he argues that the district court erred by

conflating Zhong’s statements, actions, and credibility with Xian’s. He also argues

that the district court improperly considered whether Xian was truthful about why he

came to the United States, because he contends it was irrelevant to his offenses.

Furthermore, Xian disputes several of the inconsistencies the district court found in

his proffer and addendum, namely: the vague information Xian provided regarding

Xian’s debt to another member of the marijuana-growing conspiracy; the lack of

detail in the proffer letter regarding Xian’s and Zhong’s payment of utility bills at

their residence; inconsistencies about where Xian and Zhong lived when they took

certain actions to further the conspiracy; and discrepancies regarding the number of

trash bags full of marijuana they moved. Finally, Xian argues that the district court

improperly found him not to be credible when he testified that he did not know which

door in his house led to the basement where marijuana was growing. Xian contends

that each of these purported errors provides a basis to reverse the district court’s

denial of safety-valve relief.

However, we need not reach Xian’s claims of error. As we explained in

Zhong, “‘[e]ven where the lower court reached its conclusions from a different or

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even erroneous course of reasoning,’ this Court ‘will affirm the rulings of the lower

court on any ground that finds support in the record,’ and the record here requires us

to affirm the district court.” ___ F.4th at ____ (slip op., at 15–16) (quoting United

States v. Davis, 339 F.3d 1223, 1227 (10th Cir. 2003)). Xian is ineligible for safety-

valve relief for the reason explained in Zhong and repeated above: he did not provide

the Government with all information concerning his offenses of conviction. None of

the purported errors identified by Xian absolve him of his obligation to provide such

information under § 3553(f)(5). Accordingly, the district court did not clearly err in

denying Xian safety-valve relief.

AFFIRMED.

Entered for the Court

Allison H. Eid Circuit Judge