A husband and wife who were convicted of a large-scale marijuana grow operation at their Thornton home cannot take advantage of the legal provision that exempts some drug offenders from mandatory minimum sentences, the federal appeals court based in Denver ruled last month.

Huosheng Xian and Youlian Zhong, who arrived in the U.S. from China in 2016, are serving 10-year sentences after police discovered 1,500 cannabis plants and more than 50 pounds of processed marijuana at their Glencoe Street home. A jury convicted them on three counts of manufacturing or possessing marijuana with an intent to distribute.

Federal law, however, provides a “safety valve” for certain defendants convicted of drug offenses that permits judges to impose sentences below the mandatory minimum. There are multiple factors — including lack of criminal history — and prosecutors agreed Xian and Zhong fit most of the criteria. The government only contested whether the couple, by the time of sentencing, “truthfully provided to the Government all information and evidence the defendant has concerning the offense.”

In a pair of March 12 decisions, one for each defendant, the U.S. Court of Appeals for the 10th Circuit agreed the couple had not, in fact, acknowledged they intentionally engaged in an illegal marijuana scheme.

“Zhong admitted to knowing there was suspicious and illegal activity in her home involving marijuana. She even admitted to knowing that her role, living in the house, would in some way assist those growing and distributing the marijuana,” wrote Judge Allison H. Eid for a three-judge panel of the 10th Circuit. “But she stopped short of admitting that she intended to join the conspiracy, or that she did so voluntarily, or that she joined with the intent to advance the conspiracy’s purposes.”

Because Xian and Zhong did not concede a key component of their convictions — their mental state — the panel believed it would undermine the jury’s verdict to allow access to the safety valve.

In reaching its decision, the panel relied on different reasoning than the judge who sentenced Xian and Zhong.

Prior to the couple’s January 2022 sentencing, they submitted a letter intended to satisfy the requirement of “truthfully providing” all information about their offenses. They described living in the home, with access to only certain rooms, while others entered and exited. Xian and Zhong added they:

• “knew that suspicious activities were going on” in their house

• “believed that there was marijuana growing in the home” and

• “knew that they were living … for free to in some way assist the people who were growing the marijuana”

At the same time, Xian and Zhong noted they “did not want to ask questions” and “deliberately tried to be ignorant of the specifics of what was going on.”

After hearing from each of the defendants, U.S. District Court Senior Judge Raymond P. Moore acknowledged the sentence they faced was “severe.” However, he did not believe the couple provided accurate and truthful information about their involvement, and even called Zhong’s statements “a flat lie.”

“The notion that they didn’t have — they didn’t know it was marijuana, they had no idea, they had suspicions that something was going on, but they had no belief that it related to marijuana, is simply incredible,” he said. “Months and months of living in a home with the smell, months and months of the fans going off, months and months of the trash bags …. And what makes it worse is Ms. Zhong’s statement that it wasn’t until the trial that she recognized that it was marijuana. That is beyond believable.”

Xian and Zhong appealed separately, arguing Moore wrongly assumed the signs of an illegal marijuana operation would have been evident to a husband and wife from China. The government responded during oral arguments that to block access to the safety valve, the 10th Circuit only needed to find the defendants had been untruthful or reticent in one respect.

“The statute is a tell-all-you-can-tell requirement,” said Assistant U.S. Attorney Elizabeth S. Ford Milani.

Although Moore had not relied on it for his ruling, the panel zeroed in on a subject the defendants had not fully addressed: their intent.

“Because Zhong was convicted of crimes of intent, and because she did not provide information sufficient to show her intent, she did not provide ‘all information,'” wrote Eid.

In an analysis that applied to both defendants, Eid noted the couple admitted only that they knew or “should have known” about the illegal activity in their home.

“Zhong admitted, at best,” wrote Eid, “that she committed the crimes of conviction or she did not. Accordingly, Zhong did not provide the Government with all of the information the jury found that she had.”

The cases are United States v. Xian and United States v. Zhong.