United States of America v. Wing Nuen Liu

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2023
Decided February 1, 2023
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1282
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WING NUEN LIU,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:18-CR-00162(1)
Gary Feinerman,
Judge.
O R D E R
Wing Nuen Liu was convicted in a bench trial of conspiring to distribute
100 kilograms or more of marijuana. See 21 U.S.C. § 846. On appeal, he argues for the
first time that the government did not prove that he had knowledge of this quantity
distributed through the conspiracy. But by not raising this argument in the district
court, Liu forfeited it, and the district court did not plainly err in finding him guilty of
the conspiracy charge. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 22-1282 Page 2
During the first half of 2016, Liu and his co-conspirators bought marijuana from
suppliers in California and distributed it illegally to buyers in Illinois and Texas. During
this period, the conspirators made nearly ten trips to California to meet with new
suppliers and buy marijuana. Liu attended some, but not all, of these trips. They then
transported the drugs, often in rental cars, to destinations in Illinois and Texas.
Two years later, the government charged Liu with two counts of conspiracy to
distribute marijuana in violation of 21 U.S.C. § 846. Liu pleaded guilty to Count 2 of the
indictment—conspiring to distribute a “detectable amount” of marijuana. But he
proceeded to a bench trial on Count 1, which charged him with conspiring to distribute
100 kilograms or more of marijuana.
At trial, co-conspirator Tony Sam—who was cooperating with the government—
testified about the group’s operations to obtain and distribute marijuana through trips
to California or shipments in the mail. Sam estimated the quantity involved in each
shipment, totaling between 370 and 490 pounds (approximately 167 to 222 kilograms) of
marijuana. Additionally, the government called witnesses who introduced plane, rental
car and hotel records, Facebook messages, and phone calls corroborating Liu’s travel to
and from California, as well as his communications with co-conspirators.
In opening and closing arguments, Liu’s counsel argued that the government
had not met its evidentiary burden to prove that 100 kilograms of marijuana were
involved in the case. Counsel argued, for instance, that Sam’s testimony was
speculative. Counsel further argued that the government had not shown that Liu had
agreed with the other defendants to commit a crime—a prerequisite for proving
conspiracy.
The district court found Liu guilty on Count 1, explaining that the evidence
established that the conspiracy distributed “well over 100 kilograms” of marijuana. The
court credited Sam’s testimony about the approximate drug quantities at each stage of
the operation. The court noted that Sam’s estimates were corroborated by the amount of
marijuana that the police had caught him with and by a drug-trafficking expert’s
testimony about marijuana’s market price.
After trial, Liu moved for a judgment of acquittal, arguing that the government
failed to prove that the substance involved was marijuana rather than hemp. The
district court denied the motion, ruling that the evidence at trial supported the

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No. 22-1282 Page 3
conclusion that the substance was marijuana. The court sentenced Liu to 75 months in
prison on Count 1 and 60 months on Count 2, running concurrently.
On appeal, Liu challenges the nature of the evidentiary burden faced by the
government to convict him of Count 1—conspiring to distribute 100 kilograms or more
of marijuana. To argue that the 100-kilogram quantity was an element of the crime, and
not a sentencing factor, he invokes Alleyne v. United States, 570 U.S. 99 (2013), which
requires that any fact affecting the statutory sentencing range be proved as an element
of the offense. In his view, weight is an element of the completed distribution offense,
and a defendant must know and agree that the prohibited weight is the object of the
conspiracy. And he says that the co-conspirator’s testimony and the other evidence at
trial did not establish his knowledge of the 100-kilogram quantity or his agreement to
distribute this amount.
Because Liu did not raise this argument in the district court, he forfeited it. See,
e.g., United States v. Burns, 843 F.3d 679, 685–86 (7th Cir. 2016). We thus review the
district court’s decision for plain error. Id. at 687; United States v. Canfield, 2 F.4th 622,
626 (7th Cir. 2021). To establish plain error, Liu must show that (1) there was error; (2)
the error was plain; (3) it affected his substantial rights; and that (4) it seriously affected
the fairness, integrity, or public reputation of the proceedings. United States v. Sprenger,
14 F.4th 785, 790 (7th Cir. 2021).
The district court did not plainly err by not requiring the government to establish
that Liu specifically knew the total drug quantity. To prove conspiracy under § 846, the
government must show only that (1) two or more individuals agreed to commit an
unlawful act; and (2) the defendant knowingly and intentionally entered the agreement.
United States v. Maldonado, 893 F.3d 480, 484 (7th Cir. 2018) (internal citation omitted).
Knowledge of the specific drug type or quantity is not an element of a conspiracy
offense. United States v. Gonzalez, 737 F.3d 1163, 1168 (7th Cir. 2013); United States v.
Carrera, 259 F.3d 818, 830 (7th Cir. 2001).
Liu contends that we should read Alleyne to have altered these principles in our
caselaw. He tries to extend the “knowingly or intentionally” language from § 841(a)(1),
the provision that criminalizes distributing illegal substances, to § 841(b), which lists the
penalties implicated by certain drug quantities (and, in this case, to a showing of
conspiracy under § 846).

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No. 22-1282 Page 4
But the district court did not plainly err by declining to adopt Liu’s interpretation
of Alleyne. Although we have yet to address this construction, every other circuit to do
so has rejected it, concluding that Alleyne did not impose a mens rea requirement on the
penalty provisions in § 841(b). See, e.g., United States v. Williams, 974 F.3d 320, 362–64
(3d. Cir. 2020); United States v. Dado, 759 F.3d 550, 569–70 (6th Cir. 2014); United States v.
Collazo, 984 F.3d 1308, 1325–29 (9th Cir. 2021) (en banc). According to these courts,
Alleyne’s reconsideration of the elements of a criminal offense did not disturb basic
principles of co-conspirator liability, Williams, 974 F.3d at 363–64, or demand an
unnatural reading that would extend § 841(a)(1)’s mens rea requirement to § 841(b).
Collazo, 984 F.3d at 1326–27. By following the view of every circuit to consider the issue,
the district court here did not plainly err.
AFFIRMED

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