United States v. Xiong, 1 F.4th 848

Background:

Defendant Veng Xiong was convicted by a jury of drug conspiracy (21 U.S.C. § 846/841) and two firearm offenses: possession in furtherance of a drug-trafficking crime (18 U.S.C. § 924(c)) and felon-in-possession (18 U.S.C. § 922(g)(1)).
On April 9, 2018, co-conspirator Ken Lee testified that Xiong showed him a pound of meth, handed Lee two handguns from the backseat of Xiong’s Buick, and later packed ~5 pounds of meth into a duffel for delivery.
At the delivery site, officers found in Xiong’s Buick a WASR-10 (AK-style rifle) between the passenger seat and console and a loaded short-barreled Winchester shotgun on the backseat floorboard; two handguns and ~5 lbs meth were in the Acura driven by Lee/Her.
The district court’s jury instruction defined constructive possession but omitted the required intent element (that a constructive possessor must have both power and intent to exercise control), an omission the Government conceded was erroneous.
Xiong did not object at trial, so the Tenth Circuit reviewed for plain error: the defendant had to show a reasonable probability the erroneous instruction affected the outcome.
The Government conceded on appeal that the enhanced 10-year § 924(c)(1)(B)(i) penalty for semiautomatic assault weapons (the WASR-10) no longer applied; the jury’s verdict form specifically found Xiong possessed the short-barreled shotgun, which supports the 10-year term.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of the intent element in the constructive-possession instruction required reversal of Count 4 (felon‑in‑possession, § 922(g)(1))	Gov't: Lee’s testimony that Xiong handed him two handguns supports actual possession; jury likely relied on actual possession, so instruction error was harmless.	Xiong: Jury may have convicted on constructive possession without intent; omission violated Sixth Amendment and affected substantial rights.	Affirmed. The jury reasonably could have found actual possession (Lee’s eyewitness testimony and corroborating recoveries); no reasonable probability of a different outcome.
Whether omission of the intent element required reversal of Count 3 (§ 924(c) possession in furtherance) based on the short‑barreled shotgun (and whether remand for resentencing is needed)	Gov't: Circumstantial evidence (firearm placement, context of imminent drug deal, exclusive control of vehicle earlier, accessibility from passenger seat) supports that Xiong had power and intent to exercise control over the shotgun; jury explicitly found shotgun possession.	Xiong: Joint occupancy of the Buick with driver Lor undermines any inference of intent to control the shotgun; omission thus prejudiced substantial rights.	Affirmed. Evidence (shotgun’s placement, readiness to fire, context of imminent drug transaction, Xiong’s prior control of vehicle and other weapons) sufficiently shows intent and power to control; no reasonable probability of a different verdict. The jury’s affirmative finding as to the short‑barreled shotgun sustains the 10‑year minimum.

Key Cases Cited

Henderson v. United States, 575 U.S. 622 (constructive possession requires both power and intent)
Neder v. United States, 527 U.S. 1 (an erroneous instruction on an element implicates the Sixth Amendment)
Molina‑Martinez v. United States, 136 S. Ct. 1338 (plain‑error review; defendant must show reasonable probability the error affected substantial rights)
United States v. Simpson, 845 F.3d 1039 (10th Cir.) (omitted intent in constructive‑possession instruction can be prejudicial in joint‑occupancy contexts)
United States v. Benford, 875 F.3d 1007 (10th Cir.) (same; joint occupancy may defeat inference of intent to control)
United States v. Giannukos, 908 F.3d 649 (10th Cir.) (same principle applied where other occupants also plausibly connected to firearms)
United States v. Samora, 954 F.3d 1286 (10th Cir.) (plain‑error reversal where evidence of constructive possession was insufficient beyond joint occupancy)
United States v. Dewberry, 790 F.3d 1022 (10th Cir.) (accomplice testimony may support conviction)
United States v. Bader, 678 F.3d 858 (10th Cir.) (assessment of prejudicial impact of instruction must consider trial context)