The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30277
Plaintiff-Appellee,
D.C. No.
v. CR-13-18-BLG-
DWM-01
DOUGLAS VANCE CROOKED ARM,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30280
Plaintiff-Appellee,
D.C. No.
v. CR-13-18-BLG-
DWM-02
KENNETH G. SHANE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 6, 2016
Portland, Oregon
Filed April 11, 2017
2 UNITED STATES V. CROOKED ARM
Before: Diarmuid F. O’Scannlain, Richard R. Clifton, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Nguyen
SUMMARY*
Criminal Law
The panel affirmed the district court which, on remand,
reimposed felony sentences for the defendants’ convictions
for conspiracy “to kill, transport, offer for sale, and sell
migratory birds, including bald and golden eagles” in
violation of the Migratory Bird Treaty Act.
In an argument they cast as an Apprendi claim, the
defendants, who challenged their sentences in this appeal,
contended that they admitted during the plea colloquy only to
misdemeanor conduct and cannot be sentenced as felons. The
panel wrote that the core of the defendants’ claim appears to
be a challenge to their felony convictions, and held that the
law of the case precludes this court from reconsidering the
defendants’ arguments, as this court has already resolved any
challenge to their felony convictions in United States v.
Vance Crooked Arm, 788 F.3d 1065 (9th Cir. 2015).
Dissenting, Judge Nguyen wrote that the defendants’
felony sentences violated Apprendi, and that because the prior
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CROOKED ARM 3
panel did not decide whether the defendants’ felony sentences
were Apprendi error, the law of the case doctrine does not
preclude the panel from deciding that issue here.
COUNSEL
Brian M. Murphy (argued), Holland & Hart LLP, Billings,
Montana; Mark D. Parker, Parker Heitz & Cosgrove PLLC,
Billings, Montana; for Defendant-Appellant Douglas Vance
Crooked Arm.
Sherry Scheel Matteucci, Matteucci Law Firm PLLC,
Billings, Montana; for Defendant-Appellant Kenneth G.
Shane.
Jeffrey S. Beelaert (argued), Allen Brabender, and Andrew C.
Mergen, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.; Mark
S. Smith and Leif M. Johnson, Assistant United States
Attorneys; Michael W. Cotter, United States Attorney; United
States Attorney’s Office, Billings, Montana; for Plaintiff-
Appellee.
4 UNITED STATES V. CROOKED ARM
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to review sentences imposed for violations
of the Migratory Bird Treaty Act.
I
Douglas Vance Crooked Arm and Kenneth G. Shane
appeal their felony sentences for conspiring “to kill, transport,
offer for sale, and sell migratory birds, including bald and
golden eagles” in violation of the Migratory Bird Treaty Act
(“MBTA”), 16 U.S.C. §§ 703(a), 707(b), and 18 U.S.C.
§ 371. Crooked Arm and Shane were the subjects of a sting
operation conducted by United States Fish & Wildlife Service
agents as part of “Operation Hanging Rock,” an investigation
into the illegal sale of migratory bird feathers. Over the
course of seven months, undercover agents posed as buyers
seeking to purchase fans made from migratory bird feathers
from Crooked Arm and Shane before executing search
warrants against them. United States v. Vance Crooked Arm
(Crooked Arm I), 788 F.3d 1065, 1068–69 (9th Cir. 2015).
In February 2013, a grand jury indicted Crooked Arm and
Shane on four criminal counts. Count I alleged a conspiracy
“to kill, transport, offer for sale, and sell migratory birds,
including bald and golden eagles,” in violation of 16 U.S.C.
§§ 703(a), 707(b), and 18 U.S.C. § 371. It also alleged that
Crooked Arm and Shane committed one or more of the
following acts in furtherance of the conspiracy:
UNITED STATES V. CROOKED ARM 5
1. Crooked Arm “placed deer carcasses on
the land in order to attract and capture birds of
prey, including eagles and hawks.”
2. Crooked Arm and Shane “sold a golden
eagle feather fan for $1,500.”
3. Crooked Arm and Shane “offered to sell a
magpie feather fan for $800.”
4. Crooked Arm and Shane “offered to sell a
bald eagle feather fan, and received a down
payment of $500.”
5. Crooked Arm “offered to sell a winter
hawk tail fan for $500.”
6. Crooked Arm “offered to sell a bald eagle
tail fan for $1,000.”
Count II alleged that Crooked Arm and Shane knowingly
sold parts of a golden eagle for $1,500; Count III alleged that
Crooked Arm and Shane offered to sell parts of a magpie for
$800; and Count IV alleged that Crooked Arm and Shane
knowingly offered to sell parts of a bald eagle for $1,000, all
in violation of 16 U.S.C. §§ 703, 707(b), and 18 U.S.C. § 2.
Crooked Arm and Shane filed a motion to dismiss the
indictment for failure to state a felony claim, contending that
their conduct in selling parts of birds was a misdemeanor
only. The district court denied this motion, ruling that
§ 707(b) does not distinguish between the sale of whole birds
and bird parts and thus the indictment properly charged
felony violations.
6 UNITED STATES V. CROOKED ARM
Subsequently, the defendants entered conditional plea
agreements by which they pled guilty to Count I and Count II,
while reserving their right to appeal the district court’s denial
of their motion to dismiss. At the plea colloquy, the district
court satisfied itself that Crooked Arm’s and Shane’s pleas
were knowing and voluntary, and that they understood the
nature of the charges against them and the consequences of
their pleas. In addition to their general pleas of guilty to
Count I and Count II, Crooked Arm and Shane specifically
admitted to selling bird feathers, and Crooked Arm also
admitted to dropping off a deer carcass in the hills “for the
animals and the birds to eat.”
After being sentenced to probation, Crooked Arm and
Shane appealed the district court’s denial of their motion to
dismiss. Thus, in Crooked Arm I, Crooked Arm and Shane
challenged their convictions by arguing that the sale of bird
feathers was a misdemeanor under § 707. This court agreed,
holding that the MBTA makes a distinction between birds
and parts of birds. Crooked Arm I, 788 F.3d at 1073–75. We
vacated their felony convictions for selling parts of a golden
eagle (Count II) but affirmed their felony convictions for
conspiracy to violate § 703(a) (Count I), through the killing,
transporting, offering for sale, or selling of migratory birds.
Recognizing that having one felony conviction instead of two
could impact the sentence for Count I, we vacated the
sentences for both counts and remanded for resentencing. Id.
at 1072, 1080. On remand, the district court again imposed
felony sentences for their convictions under Count I,
sentencing each to one year of probation with credit for time
served. Crooked Arm and Shane now contend that they
admitted only to misdemeanor conduct and cannot be
sentenced as felons, an argument they cast as an Apprendi
claim.
UNITED STATES V. CROOKED ARM 7
II
A
While Crooked Arm and Shane challenge their sentences
in this appeal, the core of their claim actually appears to be a
challenge to their felony convictions— the logical predicate
of being sentenced as a felon is conviction of a felony.1 Yet,
this court has already resolved any challenge to their felony
convictions in Crooked Arm I. We held that Count I properly
charged a felony offense, and we affirmed their Count I
felony convictions. Id. at 1071–72, 1080.
Crooked Arm and Shane point to language in Crooked
Arm I stating that “Count I clearly charge[d] in part a
statutory felony,” id. at 1071–72 (emphasis added), and use
this to argue that their convictions were not felonies. Yet,
such selective quotation is a misreading of our opinion. At
least six other times in Crooked Arm I, we stated that Count
I charged a felony without including the qualifying language
of “in part.”2 And, in context, we explained:
1
Although Crooked Arm and Shane claim that they are not
challenging their convictions, this is the essence of their dispute. Contrary
to the dissent’s suggestion, it would be absurd to affirm Crooked Arm’s
and Shane’s felony convictions but find their felony sentences improper on
the basis that the relevant crimes were only misdemeanors. If one is
convicted of first-degree murder, it would be bizarre to claim that he can
be sentenced only for manslaughter. Notably, Crooked Arm and Shane do
not claim that the district court improperly calculated their Guidelines’
range or bring similar sentencing claims.
2
See id. at 1068 (“We conclude . . . that . . . Count I . . . charges a
felony”), 1071 (“[T]his [C]ount [I] plainly charged a felony”), 1072 (“The
substantive MBTA offense . . . makes Count I a felony charge”) (“Count
8 UNITED STATES V. CROOKED ARM
[E]ven if Defendants were right that sale of
eagle feathers is only a misdemeanor, Count
I clearly charge[d] in part a statutory felony
. . . because [it] charge[d] a conspiracy to
“kill, transport, offer for sale, and sell
migratory birds, including bald and golden
eagles,” conduct that falls within the MBTA’s
felony provisions. And the overt acts alleged
included placing deer carcasses to attract birds
of prey.
Id. at 1071–72. Thus, “in part” makes it clear that even if the
sale of feathers might not amount to a felony, “placing deer
carcasses to attract birds of prey” did support felony
convictions.3 Id. And we upheld these convictions in our
disposition. Id. at 1080.
B
Crooked Arm and Shane now contend that they admitted
only to selling bird feathers during the plea colloquy, and by
implication they did not admit to “placing deer carcasses to
attract birds of prey,” the overt act supporting felony charges
upon which Crooked Arm I relied. Id. at 1072. Thus, they
argue that they only pled guilty to conduct that constituted a
misdemeanor. Yet, to the extent that Crooked Arm and Shane
I . . . charged a felony offense”), 1073 (“Count I charged a felony”), 1080
(“Count I charged a felony”).
3
Contrary to the dissent, it is not undisputed that Crooked Arm and
Shane admitted only to misdemeanor conduct. At the plea hearing, when
the district court asked Crooked Arm why he was guilty, Crooked Arm
explained that he “had a deer carcass in the back of [his] truck,” which he
took “out in the hills and dropped . . . off for the animals and birds to eat.”
UNITED STATES V. CROOKED ARM 9
are challenging the adequacy of their pleas to support felony
convictions (and thus felony sentences), this is also
foreclosed by Crooked Arm I.
Indeed, Crooked Arm and Shane presented the very same
arguments in supplemental briefing in Crooked Arm I. They
specifically contended that Count I charged both felony and
misdemeanor violations and that based on their pleas, their
convictions were for misdemeanors only. And they raised the
Apprendi point that they make now.
Nonetheless, we held that “the record before us d[id] not
permit a conclusion that Defendants’ pleas were not knowing
and voluntary without adequate factual basis.” Id. at 1072 n.5.
Alternatively, we explained that Crooked Arm and Shane
“waived” any challenge to the adequacy of their pleas by not
raising this claim before the district court or in their opening
brief before our court. Id. Thus, we upheld their felony
convictions. Id. at 1080.
C
Under law of the case, we are precluded from
reconsidering these issues. See United States v. Alexander,
106 F.3d 874, 876 (9th Cir. 1997). Thus, we will not
reevaluate Crooked Arm and Shane’s claims that the
government needed to obtain a specific admission from them
during the plea colloquy in order for them to be convicted
(and sentenced) as felons. Defendants cannot relitigate the
adequacy of their pleas by resurrecting them in the guise of
a sentencing claim.
The dissent argues that law of the case does not apply,
citing our decision in United States v. Caterino, 29 F.3d 1390,
10 UNITED STATES V. CROOKED ARM
1395–96 (9th Cir. 1994) overruled on other grounds by Witte
v. United States, 515 U.S. 389 (1995). Caterino, however,
involved a situation where we held that a defendant was free
to raise an argument on remand for resentencing which we
had found waived in the initial appeal. Id.
Unlike Caterino, the problem here is not that the district
court merely failed to address the argument before the first
appeal, but that our decision on the merits of the plea
agreement forecloses further review. If Crooked Arm I had
merely held that Crooked Arm and Shane had waived their
ability to challenge the adequacy of the pleas, Caterino might
be on point. But we also rejected Crooked Arm and Shane’s
arguments on their face. See Crooked Arm I, 788 F.3d at
1072 n.5. It would be improper to reexamine them now.
Further, in Caterino there was no challenge to the
underlying conviction. Instead, the question was a pure
sentencing claim—whether the defendant’s consecutive
sentences violated the Double Jeopardy clause. See 29 F.3d
at 1396. The dissent is correct that “[o]n remand, the district
court generally should be free to consider any matters
relevant to sentencing, even those that may not have been
raised at the first sentencing hearing, as if it were sentencing
de novo.” United States v. Matthews, 278 F.3d 880, 885–86
(9th Cir. 2002) (citing United States v. Ponce, 51 F.3d 820,
826 (9th Cir. 1995)). But Crooked Arm and Shane’s claims
about the adequacy of the pleas supporting their felony
convictions are not sentencing issues.
D
Indeed, because we affirmed Crooked Arm’s and Shane’s
felony convictions and vacated only their sentences, the
UNITED STATES V. CROOKED ARM 11
district court was precluded from evaluating the adequacy of
their pleas or their convictions. Such analysis fell outside the
scope of the remand. See Mendez-Gutierrez v. Gonzales,
444 F.3d 1168, 1172–73 (9th Cir. 2006) (collecting cases).
E
Finally, even if one accepts Crooked Arm and Shane’s
contention that they did not realize that they were pleading
guilty to felony conduct (apart from the sale of feathers), after
this court upheld their felony convictions in Crooked Arm I,
the district court offered them a chance to withdraw their
guilty pleas on remand. Regardless of whether the district
court had the authority to do so, if Crooked Arm and Shane
did not want to be sentenced as felons, they should have tried
to withdraw their pleas. Cf. United States v. Broce, 488 U.S.
563, 571 (1989). In the wake of Crooked Arm I, to claim that
they did not understand that they were pleading guilty to a
felony (or would be sentenced as felons) is simply
unbelievable.
III
In sum, because Crooked Arm I disposes of their
arguments, Crooked Arm’s and Shane’s challenges to their
felony sentences fail. We express no opinion whatsoever on
the merits of their Apprendi claim.
AFFIRMED.
12 UNITED STATES V. CROOKED ARM
NGUYEN, Circuit Judge, dissenting:
Crooked Arm’s and Shane’s felony sentences violate
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the
conspiracy object to which they admitted—selling migratory
bird feathers—was only a misdemeanor. Yet the majority
refuses to reach the merits of Defendants’ sentencing
argument because a prior panel purportedly “affirmed their
felony convictions.” Majority Op. at 6. The majority’s
flawed reasoning is as follows: the prior panel, by not
vacating the convictions, implicitly ruled that Defendants
should be sentenced as felons on remand. But the panel made
no such ruling, which would have required a finding that
Defendants admitted to one of the felony objects—rather than
the misdemeanor objects—alleged in Count I’s multi-object
conspiracy. Instead, the panel held that Count I charged a
felony in part, that Defendants admitted only to a conspiracy
to sell feathers, that the sale of feathers was a misdemeanor,
and that Defendants’ felony sentences must be vacated.
United States v. Vance Crooked Arm (Crooked Arm I),
788 F.3d 1065, 1070 n.2, 1071–72, 1079 (9th Cir. 2015) (per
curiam).
Because Defendants’ sentences violate Apprendi, and
because the law of the case does not prevent us from
correcting this error (indeed, Supreme Court and our own
precedent require us to fix it), I respectfully dissent.
I
The majority relies solely on a procedural ground not
advanced by the government to deny relief, and it is therefore
important at the outset to understand the unusual posture of
this case.
UNITED STATES V. CROOKED ARM 13
The parties do not dispute that, during the plea colloquies,
Crooked Arm and Shane admitted only to a misdemeanor
object: a conspiracy to “sell parts of birds,” namely,
migratory bird feathers.1 The district court nevertheless
initially sentenced them as felons based on the mistaken
belief that selling parts of birds is a felony. No one addressed
whether a felony sentence could be supported on other
grounds because the district court and the parties
believed—mistakenly—that the only object of the conspiracy
alleged in Count I was to “sell the various parts of the birds.”2
While the district court and the parties all understood Count
I as alleging only a conspiracy to sell bird parts, they
disagreed as to whether doing so was a misdemeanor (as
Crooked Arm and Shane argued) or a felony (as the
government and the district court believed).
1
The majority confusingly focuses on Crooked Arm’s admission to
an alleged overt act: placing deer carcasses on the land. Majority Op. at
8 & n.3. But, as Crooked Arm and Shane explain, this overt act—which
itself is not a felony—does not convert a misdemeanor conspiracy into a
felony. See Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).
Whether the conspiracy is a misdemeanor or a felony turns not on this
overt act, but rather on the “object of the conspiracy” admitted by
Defendants, which was the sale of feathers. Crooked Arm I, 788 F.3d at
1070 n.2, 1071; 18 U.S.C. § 371.
2
At the plea colloquy, the district court told Shane that what the
indictment is “saying in Count One is that you conspired with Mr.
Crooked Arm . . . to sell the various parts of the birds.” No party
disagreed with this characterization. That is because the government had
already conceded, and Defendants agreed, that the “indictment here
charges defendant with selling and offering to sell bird parts.” The
government and the district court simply took the position that the
indictment’s use of the statutory term “migratory bird” included “parts of
birds.” As Crooked Arm I held, that conflation of birds with bird parts
was error. 788 F.3d at 1075.
14 UNITED STATES V. CROOKED ARM
On appeal, the panel in Crooked Arm I agreed with
Defendants that, unlike the sale of whole birds, the sale of
bird parts was only a misdemeanor. 788 F.3d at 1079. The
panel nevertheless affirmed the district court’s denial of the
motion to dismiss because “Count I clearly charges in part a
statutory felony,” namely, a conspiracy to offer for sale and
sell birds. Id. at 1071–72 (emphasis added).
This holding in Crooked Arm I is consistent with the plain
language of the statute, which shows that only two of the four
alleged objects of the conspiracy in Count I—offering for sale
and selling migratory birds—qualify as felonies. The other
two objects—killing and transporting migratory birds—are
misdemeanors.3 Indeed, the government conceded this point
at oral argument, as did the district court below when denying
the motion to dismiss. This distinction matters because, if
Crooked Arm and Shane admitted only to misdemeanor
objects, then the conspiracy to which they pled is itself only
a misdemeanor. See 18 U.S.C. § 371; Crooked Arm I,
788 F.3d at 1071.
In supplemental briefing requested by the panel in
Crooked Arm I, Defendants advanced several arguments,
including that Apprendi required them to be sentenced as
misdemeanants for Count I because “the object of the
conspiracy to which the Defendants pled guilty (selling
3
Under the Migratory Bird Treaty Act, it is a felony to “sell” or “offer
for sale . . . any migratory bird.” 16 U.S.C. § 707(b)(2). Absent intent to
sell, the Act makes it a misdemeanor to “kill” or “transport” a migratory
bird. See id. §§ 703(a), 707(a). Consistent with Crooked Arm I, our sister
circuits have also recognized that killing migratory birds is only a
“misdemeanor” under 16 U.S.C. § 707(a). See United States v. Apollo
Energies, Inc., 611 F.3d 679, 681 (10th Cir. 2010); United States v.
CITGO Petroleum Corp., 801 F.3d 477, 488 (5th Cir. 2015).
UNITED STATES V. CROOKED ARM 15
feathers) is a misdemeanor.” Defendants therefore requested
that the panel “remand for re-sentencing rather than
dismissing” Count I. The panel obliged by vacating their
sentences and remanding. Id. at 1080.
II
A
The linchpin of the majority’s opinion is that, under the
law of the case doctrine, we must decline to hear Crooked
Arm’s and Shane’s sentencing challenge. I disagree.
Because the prior panel “did not decide” whether Crooked
Arm’s and Shane’s felony sentences were Apprendi error, the
“law of the case doctrine does not preclude us from deciding
that issue here.” United States v. Almazan-Becerra, 537 F.3d
1094, 1097 (9th Cir. 2008) (holding that the law of the case
doctrine did not bar consideration on remand of sentencing
argument because the prior panel, despite addressing the
issue, did not decide it); see Wyler Summit P’ship v. Turner
Broad. Sys., Inc., 235 F.3d 1184, 1193 (9th Cir. 2000).
Crooked Arm and Shane are not, as the majority
characterizes it, improperly attempting to “relitigate the
adequacy of their pleas by resurrecting them in the guise of
a sentencing claim.” Majority Op. at 9. To the contrary, they
are not challenging their convictions under Count I; they do
not argue that their “pleas were not knowing and voluntary
and without adequate factual basis,” two issues addressed in
a footnote in Crooked Arm I. 788 F.3d at 1072 n. 5. Instead,
Crooked Arm and Shane concede the propriety of their
convictions on Count I, but challenge only the sentences they
received on remand. The majority conflates a challenge to a
sentence with a challenge to a conviction—two different legal
16 UNITED STATES V. CROOKED ARM
theories with different remedies based on different facts—so
as to shoehorn this appeal into a theory rejected in Crooked
Arm I.4
Contrary to the majority’s suggestion, the panel in
Crooked Arm I never “rejected” the Apprendi argument
included in Defendants’ supplemental briefing; the panel
simply did not discuss the argument or even mention
Apprendi. Majority Op. at 10. Nor was it required to do so,
as it granted Defendants the relief they sought: the panel held
that Count I charged a felony only in part, that Defendants
admitted only to a conspiracy to sell bird parts, that the sale
of bird parts was a misdemeanor, and that Defendants’ felony
sentences must be vacated. Crooked Arm I, 788 F.3d at 1070
n.2, 1071–72, 1079. These holdings—which are law of the
case—laid the necessary groundwork for Defendants to
receive misdemeanor sentences on remand.
Having vacated the sentences, the panel in Crooked Arm
I did not reach the issue of whether Defendants were properly
sentenced for a felony. The passages cited by the majority
describing Count I as charging a felony only underscore the
limits of Crooked Arm I’s holding, namely, that the district
court properly denied the motion to dismiss as to Count I.
But a determination that Count I charged a felony says
nothing about whether Defendants were properly sentenced
as felons because, as the government conceded and the
4
We routinely recognize the distinction between a challenge to a
conviction and a challenge to a sentence by affirming convictions but
vacating sentences due to Apprendi error. See, e.g., United States v.
Locklin, 530 F.3d 908, 911–13 (9th Cir. 2008). Therefore, contrary to the
majority’s suggestion, it would not be absurd to affirm Defendants’
convictions but also hold that their felony sentences were improper.
UNITED STATES V. CROOKED ARM 17
district court held, Count I also charged a misdemeanor.
Under such circumstances, to determine that a felony
sentence was proper under Apprendi would have required the
panel to hold that Crooked Arm and Shane admitted to a
felony object. See United States v. Guerrero-Jasso, 752 F.3d
1186, 1189–91 (9th Cir. 2014). The panel never did so.
Because Crooked Arm I’s analysis “neither acknowledged nor
discussed” the Apprendi argument and, in fact, granted
Defendants the relief they requested, the law of the case
doctrine does not apply here. Hegler v. Borg, 50 F.3d 1472,
1475 (9th Cir. 1995).
B
Even if Crooked Arm I’s silence on the issue could be
read as a rejection of Defendants’ Apprendi argument (which
it cannot), the law of the case doctrine does not bar relief here
because the prior panel “wiped the slate clean” by vacating
the original sentences and remanding for resentencing.
Pepper v. United States, 562 U.S. 476, 507 (2011). This is
true even if Crooked Arm I vacated their sentences on
different grounds than those raised by Defendants on remand.
Id. at 507–08 (holding that the district court “was not bound
by the law of the case doctrine” to rule the same way as in
prior sentencing because the court of appeals had vacated the
sentence, albeit on different grounds).5
5
The two cases relied upon by the majority do not hold otherwise.
Those cases do not involve an appeal from a remand for resentencing, nor
do they address the binding authorities discussed herein. See United
States v. Alexander, 106 F.3d 874, 875 (9th Cir. 1997) (holding that the
“district court abused its discretion by departing from the law of the case
and admitting a previously suppressed confession”); Mendez-Gutierrez v.
Gonzales, 444 F.3d 1168, 1173 (9th Cir. 2006) (holding that the Board of
Immigration Appeals was bound by the first appeal’s “limited remand” to
18 UNITED STATES V. CROOKED ARM
“On remand, the district court generally should be free to
consider any matters relevant to sentencing, even those that
may not have been raised at the first sentencing hearing, as if
it were sentencing de novo.” United States v. Matthews,
278 F.3d 880, 885–86 (9th Cir. 2002) (en banc). The present
case underscores the policy reasons behind the rule generally
permitting defendants to raise all available sentencing
arguments on remand: doing so provides the “predictability
and consistency in sentencing” necessary for a “just
sentence.” Matthews, 278 F.3d at 886 (quoting United States
v. Matthews, 240 F.3d 806, 823 (9th Cir. 2000) (O’Scannlain,
J., dissenting)). In the first sentencing hearing, the district
court sentenced Crooked Arm and Shane based on the
mistaken belief that Count I alleged only a conspiracy to “sell
the various parts of the birds” and that doing so was a felony,
a legal conclusion that we reversed in Crooked Arm I. As the
district court noted on remand, “nobody contemplated” that
the Ninth Circuit would hold that Count I charged a felony in
part. Rather, the district court and the parties expected either
a total affirmance or total reversal. Thus, in their first
sentencing hearing, Crooked Arm and Shane had no reason
to challenge an Apprendi error that had yet to occur and
which depended on a future partial reversal that nobody
expected.
The majority’s only answer is that Defendants’ Apprendi
argument is not an Apprendi argument but rather a challenge
to the “adequacy of the pleas,” an argument rejected in
Crooked Arm I. Majority Op. at 10. Respectfully, this
reasoning substitutes a strawman argument for the one
Defendants actually make. Crooked Arm and Shane clearly
consider only “whether [the petitioner] has established a prima facie case
of eligibility for asylum”).
UNITED STATES V. CROOKED ARM 19
state that their “pleas were adequate to convict them” on
Count I because they admitted a misdemeanor object of the
conspiracy: the sale of bird feathers. They simply challenge
their sentences because they pled to a misdemeanor
conspiracy, but were sentenced as felons—a quintessential
Apprendi error.
C
Furthermore, we do not apply the law of the case doctrine
when doing so would be “clearly erroneous” and would result
in “a manifest injustice.” Pepper, 562 U.S. at 506–07. Such
is the case here. Closing our eyes to a clear Apprendi error is
a manifest injustice because, unlike a misdemeanant, a felon
must “carry through life the disability of a felon[y] and by
reason of that fact he might lose certain civil rights,” such as
the right to vote, serve on a jury, or hold political office. See
Fiswick v. United States, 329 U.S. 211, 222 & n.10 (1946);
United States v. Chovan, 735 F.3d 1127, 1145 (9th Cir. 2013)
(Bea, J., dissenting) (unlike misdemeanants, “felons can
suffer numerous restrictions on their constitutional rights”).
D
Defendants also could not have waived in Crooked Arm
I a challenge to a sentencing error that had not yet occurred.
In United States v. Caterino, we affirmed Caterino’s
convictions in his first appeal and held that he had “waived”
his double jeopardy sentencing argument by acquiescing
below. 29 F.3d 1390, 1393, 1395 (9th Cir. 1994) overruled
on other grounds by Witte v. United States, 515 U.S. 389
(1995). However, we identified a different error and
remanded for resentencing. Id. at 1393. On remand, the
district court rejected Caterino’s attempt to raise his double
20 UNITED STATES V. CROOKED ARM
jeopardy argument, finding that the argument was barred by
the law of the case doctrine. Id. at 1395. We reversed again,
holding that the defendant was “free to make any new
arguments or concessions he deemed appropriate given the
new set of circumstances” of a vacated sentence and remand
for resentencing. Id. at 1396. We explained that, after an
appellate court vacates a sentence and remands for
resentencing, a defendant is not “bound at the resentencing
phase by his [earlier] waiver.” Id. at 1396; see also United
States v. Garcia-Guizar, 234 F.3d 483, 490 (9th Cir. 2000)
(rejecting the argument that the government “waived its right
to correct [on remand] the error in the original sentencing
because it did not cross-appeal from the original sentence”).
E
The majority faults Crooked Arm and Shane for not
withdrawing their pleas on remand, stating that they “should
have tried” to do so if they “did not want to be sentenced as
felons.” Majority Op. at 11. But the district court’s offer to
withdraw their pleas came with a warning that doing so
would erase their victory on appeal, because the government
would be permitted to recharge them as felons. A district
court cannot immunize itself from Apprendi error simply by
offering a defendant the Hobson’s choice between an
unconstitutional sentence and withdrawal of his plea. That
dubious proposition appears nowhere in the case cited by the
majority, which rejected a collateral attack on a conviction
because “a voluntary and intelligent plea of guilty made by an
accused person, who has been advised by competent counsel,
may not be collaterally attacked” absent certain exceptions.
United States v. Broce, 488 U.S. 563, 574 (1989) (quoting
Mabry v. Johnson, 467 U.S. 504, 508 (1984). That case has
nothing to do with the Apprendi error that arose here.
UNITED STATES V. CROOKED ARM 21
III
While not addressed by the majority, the district court
committed Apprendi error by sentencing Defendants as felons
because the government failed to secure an admission of any
felony object of the conspiracy.
Under Apprendi and its progeny, a sentencing court may
not increase the penalty for a crime beyond the statutory
maximum by relying on facts, other than the fact of a prior
conviction, “that were neither admitted by the [d]efendant nor
found by a jury beyond a reasonable doubt.” Guerrero-Jasso,
752 F.3d at 1189. Error occurs even if the court sentences a
defendant to less than the maximum penalty provided by
statute because the term “‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Blakely v. Washington, 542 U.S.
296, 303 (2004).
The government bears the burden “at the plea colloquy to
seek an explicit admission of any unlawful conduct it seeks
to attribute to the defendant.” United States v. Hunt, 656 F.3d
906, 912 (9th Cir. 2011) (quoting United States v. Thomas,
355 F.3d 1191, 1199 (9th Cir. 2004)). Therefore, in order to
obtain felony sentences here, the government must have
elicited from Crooked Arm and Shane explicit admissions to
a felony object of the conspiracy: offering for sale or selling
migratory birds (not merely bird feathers). The government
failed to do so. In fact, during his plea colloquy, Shane
specifically rejected the government’s offer of proof as
“wrong and misleading,” admitting only to helping Crooked
Arm sell his daughter’s fan made of migratory bird feathers.
Crooked Arm also admitted only to selling feathers and
22 UNITED STATES V. CROOKED ARM
leaving a deer carcass out for birds to eat. But neither
admitted to conspiring to sell or offer for sale migratory birds.
The government falls back on the argument that Crooked
Arm and Shane pled guilty to a felony because the indictment
alleges a multi-object conspiracy that includes both
misdemeanor and felony objects. That is not the law. Where,
as here, a defendant pleads guilty to a count alleging conduct
in the conjunctive, the defendant admits only the least serious
conduct. See Guerrero-Jasso, 752 F.3d at 1191 (vacating a
sentence based on a guilty plea to a charge alleged in the
conjunctive because when “either ‘A’ or ‘B’ could support a
conviction, a defendant who pleads guilty to a charging
document alleging ‘A and B’ admits only ‘A’ or ‘B’”
(quoting Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012)
(en banc))). That is because, by pleading guilty to the
charging document, a defendant only “admits the facts
constituting the elements of the charge,” but not allegations
that are “not necessary” for a conviction. United States v.
Cazares, 121 F.3d 1241, 1246–47 (9th Cir. 1997) (vacating
sentence based on a guilty plea to an indictment charging a
drug conspiracy and alleging that the defendant possessed a
gun because gun possession was not an element of the drug
conspiracy charge).
Here, all that was necessary for a conviction under Count
I was an admission to any one of the four alleged objects of
the conspiracy, including the misdemeanor objects of killing
and transporting birds. See Griffin v. United States, 502 U.S.
46, 56–57 (1991) (affirming a conviction on a multi-object
conspiracy charge under 18 U.S.C. § 371 where the evidence
implicated the defendant as to only one of the two objects of
the conspiracy). Because the government failed to secure an
admission from Crooked Arm and Shane of any felony object
UNITED STATES V. CROOKED ARM 23
of the conspiracy, they pled only to a misdemeanor. As a
result, the district court erred in sentencing them as felons.
See Guerrero-Jasso, 752 F.3d at 1191.
* * *
Because the district court committed Apprendi error, I
would vacate the sentences and remand with instructions to
resentence Crooked Arm and Shane as misdemeanants.