United States of America v. Rich Xiongpao, a.k.a. Thai Xiong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICH XIONGPAO, a.k.a. Thai Xiong,
Defendant-Appellant.
No. 17-10108
D.C. No. 1:15-cr-00285-LJO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Rich Xiongpao appeals from the district court’s judgment and challenges the
60-month mandatory minimum sentence imposed following his jury-trial
conviction for manufacturing 100 or more marijuana plants, in violation of 21
U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291. Reviewing for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10108
clear error, United States v. Ferryman, 444 F.3d 1183, 1185 (9th Cir. 2006), we
affirm.
Xiongpao contends that the district court clearly erred in determining that he
possessed a firearm in connection with the offense such that he was ineligible for
safety valve relief under 18 U.S.C. § 3553(f) and subject to a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1). It is undisputed that Xiongpao lived
at a particular campsite for the sole purpose of tending to the marijuana grow site
at issue and possessed a loaded shotgun, which was provided by the drug
organization, at that campsite. Despite Xiongpao’s assertion that he only intended
to use the shotgun to protect against animals and not other intruders, the district
court reasonably concluded that Xiongpao did not meet his burden of showing that
the shotgun was unconnected to the offense. See, e.g., United States v. Fernandez,
526 F.3d 1247, 1252 (9th Cir. 2008) (affirming denial of safety valve relief where
district court explained that, even if weapons found in defendant’s home were
intended to protect his family, defendant’s concern for his family’s safety
“stemmed from the dangers created by his involvement in a drug conspiracy”).
AFFIRMED.

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