and Submitted October 6, 2016 Portland, Oregon
from the United States District Court for the District of
Montana D.C. No. CR-13-18-BLG-DWM-01, CR-13-18-BLG-DWM-02,
Donald W. Molloy, District Judge, Presiding
M. Murphy (argued), Holland & Hart LLP, Billings,
Montana; Mark D. Parker, Parker Heitz & Cosgrove PLLC,
Billings, Montana; for Defendant-Appellant Douglas Vance
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
Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and
Jacqueline H. Nguyen, Circuit Judges.
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.
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).
Judge Nguyen wrote that the defendants' felony sentences
violated Apprendi, and that because the prior 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.
O'SCANNLAIN, Circuit Judge
asked to review sentences imposed for violations of the
Migratory Bird Treaty Act.
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).
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:
1. Crooked Arm "placed deer carcasses on the land in
order to attract and capture birds of prey, including eagles
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
6. Crooked Arm "offered to sell a bald eagle tail fan
for $1, 000."
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. §
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
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
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.