State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1141

State of Minnesota,
Respondent,

vs.

Tony Xiong,
Appellant.

Filed August 2, 2021
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CR-19-4405

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten , Presiding Judge; Connolly , Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this direct appeal from a judgment of conviction for first -degree arson, appellant
argues that the district court abused its discretion in denying his motion for a durational or
dispositional departure. We affirm.
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FACTS
On June 13, 2019, appellant Tony Xiong went to a friend’s girlfriend’s home in
Saint Paul and poured a “bottle of gasoline” on a “shed .” He lit the shed on fire, intending
to destroy it. The next day, respondent State of Minnesota charged Xiong with first-degree
arson, Minn. Stat. § 609.561, subd. 3(a) (2018). Xiong and the state reached an agreement
where Xiong would plead guilty as charged, and the state would dismiss an unrelated case.
The parties also agreed that Xiong’s sentence would be “capped at [the] low end of the
box,” but he could argue for a departure. After waiving his trial rights, Xiong pleaded
guilty and admitted a f actual basis for his plea. The district court accepted Xiong’s plea,
ordered a presentence investigation (PSI), and continued the case for sentencing.
Xiong moved for a downward dispositional departure or, alternatively, for a
downward durational departu re. Along with his motion, Xiong included an interoffice
memorandum prepared by a dispositional advisor with the Office of the Public Defender
explaining the basis for Xiong’s departure request and his personal history. The PSI
recounted some of this per sonal history and recommended a sentence of 95 months in
prison, which is the bottom of the presumptive sentencing guidelines range of 95 to 132
months.1
At the sentencing hearing, the state requested that Xiong receive an executed
sentence of 95 months. Xiong requested a dispositional departure or, alternatively, a

1 The guideline range is based on first-degree arson’s severity level of 8 and Xiong’s 8
criminal history points, plus three more months based on Xiong’s custody status point and
higher-than-maximum criminal history score. See Minn. Sent. Guidelines 4.A., 2.B.2.c.
(2018).
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durational departure. In support of his request, Xiong addressed the district court,
indicating that he took “full responsibility” for his “stupidity” and “actions .” He asked the
district court to give him the opportunity to go to a community treatment facility, rather
than prison, where he would be “given the tools” that he needed to resolve his drug and
alcohol addiction. The district court denied Xiong’s motion for departures and imposed a
95-month executed prison sentence, explaining:
I don’t think, based on the record that I have, that I can find
that you’re particularly amenable to probation, because you’ve
been on probation so many times before, as you said.
And . . . the offense isn’t any less severe or significant than a
typical arson in the first degree.

This appeal follows.
DECISION
Xiong argues that the district court abused its discretion when it imposed a 95-month
prison commitment . He submits that he is particularly amenable t o probat ion, thereby
entitling him to a dispositional departure, and that his conviction was for conduct that was
less serious than the typical arson offense, warranting a duratio nal departure. The state
disagrees and argues that the district court did not clearly abuse its discretion.
I. The district court did not abuse its discretion by imposing a guideline sentence.

“The sentences provided in the [Minnesota Sentencing Guidelines] Grids are
presumed to be appropriate for the crimes to which they apply.” Minn. Sent. Guidelines
2.D.1 (2018). But the district court “may depart from the presumptive disposition or
duration” if “there exist identifiable, substantial, and compelling circumstances to support
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a departure.” 2 Id. Appellate courts “afford the [district] court great discretion in the
imposition of sentences and reverse sentencing decisions only for an abuse of that
discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). And
appellate courts “give great deference to a district court’s findings of fact and will not set
them aside unless clearly erroneous.” State v. Evans, 756 N.W.2d 854, 870 (Minn. 2008).
As a threshold matter, the state argues that “this Court need not address [Xiong’s]
arguments why the facts of his case entitle him to a departure.” The state directs us to State
v. Van Ruler , 378 N.W.2d 77, 80 -81 (Minn. App. 1985) , where we stated that “[t]he
reviewing court may not interfere with the sentencing court’s exercise of discretion, as long
as the record shows the sentencing court carefully evaluated all the testimony and
information presented before making a determinati on.” However, appellate courts “have
the power, if the circumstances warrant, to modify a sentence given by the [district] court,
even if the sentence is within the presumptive sentence range.” State v. Kraft, 326 N.W.2d
840, 842 (Minn. 1982) . The supre me court has repeatedly stated that “we do not ‘intend
entirely to close the door on appeals from refusals to depart.’” State v. Bertsch, 707 N.W.2d
660, 668 (Minn. 2006) (quoting State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)). We may
not abandon our duty to review each sentencing appeal for abuse of the district court’s

2 “A ‘dispositional departure’ occurs when the court orders a disposition other than that
recommended in the Guidelines.” Minn. Sent. Guidelines 1.B.5.a. (2018). “A ‘durational
departure’ occurs when th e court orders a sentence with a duration other than the
presumptive fixed duration or range in the appropriate cell on the applicable Grid. ” Minn.
Sent. Guidelines 1.B.5.b. (2018).
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discretion, even when the district court imposes a presumptively-appropriate sentence. See
Kindem, 313 N.W.2d at 7. We therefore address both of Xiong’s arguments.
Dispositional departure
The guidelines provide a “nonexclusive list of factors that may be used as reasons
for departure,” including when “[t]he offender is particularly amenable to probation.”
Minn. Sent. Guidelines 2.D.3.a.7 (2018). “A dispositional departure typically focuses on
characteristics of the defendant that show whether the defendant is particularly suitable for
individualized treatment in a probationary setting.” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016) (quotation omitted). To determine if an offender is particularly amenable to
probation, the district court may consider “[n]umerous factors, including the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Xiong’s
argument turns on these Trog factors.
First, Xiong argues that “giving due consideration to the instability and trauma he
suffered as a youth, his young age [of 39] would weigh in favor of an oppor tunity for
rehabilitation without incarceration.” But Xiong does not explain why his age of 39 years,
which is closer to middle age, would necessarily weigh in favor of his request for a
dispositional departure.
The record does support that Xiong’s life h as been traumatic and unstable. The
record indicates that Xiong’s father abandoned the family and his mother was murdered in
front of him purportedly by a gang member. After his mother’s murder, he lived with one
of his brothers. At the age of thirteen, he began using drugs and eventually became
6
chemically dependent. Because of his involvement with drugs and gangs, his brother
moved with him from California to Utah. Xiong continued to have “many problems” even
in Utah and was placed in foster care for a short period of time. After being returned to the
custody of his brother, he was able to leave the gang lifestyle, finish high school, get
married, and have a child. Xiong argues that after his child died at two weeks of age and
he divorced his wife, h e began using drugs again and engaging in criminal activity as a
coping mechanism.
But, Xiong has a significant criminal history. While in Utah, Xiong had two
non-felony convictions for theft from a motor vehicle and criminal mischief. Since moving
to Minnesota with his wife in 2009, he has been convicted of eight felonies in Minnesota
and Wisconsin —five separate motor -vehicle theft convictions, two separate fleeing a
police officer in a motor vehicle convictions, and a drug possession with intent to sell
conviction. In addition, he had a domestic assault and an interference with a 911 call
conviction for two separate incidents. Xiong’s lengthy criminal record as an adult,
covering a span of time from 2009 to the present, and his life -long involvement with drugs
weigh against his motion for a dispositional departure.
Second, Xiong argues that despite his long criminal history, he “had arranged
community-based treatment, as wel l as a treatment back -up plan.” Still, the PSI indicates
that during this offense, which resulted in his ninth felony conviction, Xiong was on
supervised release and was awaiting sentencing in three other felony cases. He committed
this offense just four days after an early release from prison and nine days be fore his
sentencing in the three felony cases. The record demonstrates that despite having been on
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multiple probations and supervised -releases, Xiong continued to commit crimes. These
prior unsuccessful probations and supervised releases support the dist rict court’s
conclusion that he would not be successful in community-based probation.
Third, Xiong points out that he “cooperated with the legal process and took
responsibility for his actions.” But while Xiong ultimately cooperated with law
enforcement, he initially denied his involvement with the arson when confronted by police.
And fourth, “Xiong expressed both remorse and a mo tivation to change” through a letter
and personal statements to the district court. But the district court, which “is properly
tasked with deciding whether a defendant’s actions express genuine remorse and how much
weight to give to that remorse,” did not make a finding of remorse. Solberg, 882 N.W.2d
at 626. On this record, we cannot conclude that the district court’s refusal to find that
Xiong was remorseful was clearly erroneous.
Fifth, Xiong argues that despite his criminal history and recent 18 -month prison
sentence, his “treatment needs were never addressed either during incarceration or while
on probation.” Before senten cing, Xiong had secured a 60 -day in -patient placement at
Lakeshore Treatment Center, and, as a backup, also secured a placement at the Salvation
Army Adult Rehabilitation Center. But Xiong’s past failures on probation and recent
criminal activity while on supervised release support the district court’s rejection of his
argument that his treatment needs would be met by a less restricted community -based
treatment rather than in a chemical dependency treatment program while in prison.
Finally, even if a mitigating factor was “clearly present,” it would “not obligate the
[district] court to place [the] defendant on probation or impose a shorter term than the
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presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Given this record,
where there was a lack of substantial and compelling reasons supporting a departure and
the evidence was that Xiong was not particularly amendable to probation, the district court
did not abuse its discretion in denying Xiong’s motion for a dispositional departure.
Durational departure
Generally, a durational departure is appropriate when a “defendant’s conduct was
significantly more or less serious than that typically involved in the commission of the
crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). Xiong contends that
his offense was less serious than a typical first -degree arson because he only “set the shed
on fire because he wanted to ruin the victim’s stuff,” and “didn’t want to risk hurting
anyone.” He also points to information included in his dispositional memorandum, which
indicates that “of the 38 first -degree arson cases from 2014 -2018 . . . only one case
involved a non -dwelling.” The state argues that Xiong’s “argument minimiz[es] the
seriousness of his conduct [and] ignores the fact that if he had used gasoline to start a fire
in a building he knew was occupied, he could have been charged with attempted murder .”
We reject Xiong’s argument that his offense was less serious than typical. A fire
department captain reported that Xiong’s offen se was “brazen” because it was committed
during the day and in front of a camera. And Xiong used “a large amount of gasoline” to
set fire to two sheds, which then spread to a garage. The captain reported that people were
living illegally in the sheds, th ough no one was in the sheds at the time of the fires. Thus,
the district court did not err when it determined that Xiong’s offense was serious.
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Xiong argues that “but for the use of an accelerant, [Xiong’s offense] would not
have been classified as firs t-degree arson; it would be more akin to a second - or
third-degree offense.” First -degree arson has three subdivisions: subdivision 1 prohibits
the intentional burning of a dwelling, subdivision 2 prohibits the intentional burning of an
occupied building, and subdivision 3—the subdivision underlying Xiong’s conviction —
prohibits the intentional burning of a building when “ a flammable material is used to start
or accelerate the fire.” Minn. Stat. § 609.561. It is true that second- and third-degree arson
prohibit the burning of a building “not covered by” the first -degree arson statute, based on
the value of the building. Minn. Stat. § 609.562 (2018) (second degree: over $1000); Minn.
Stat § 609.563 (2018) (third degree: $300 to $1000). But that is irrelev ant. Here, Xiong
used an accelerant: a “large amount of gasoline.” That he does not meet the other statutory
grounds for a first -degree-arson conviction does not make his offense less serious than a
typical first-degree-arson conviction for use of an accelerant.
The district court, therefore, did not abuse its discretion when it determined that
Xiong’s “offense isn’t any less severe or significant than a typical arson in the first degree”
and imposed a guideline sentence.
Affirmed.