FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOUGLAS VANCE CROOKED ARM,

Defendant-Appellant.

No. 15-30277

D.C. No.

CR-13-18-BLGDWM-01

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH G. SHANE,

Defendant-Appellant.

No. 15-30280

D.C. No.

CR-13-18-BLGDWM-02

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.

JeffreyS. 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 StatesAttorney; United

States Attorney’s Office, Billings, Montana; for PlaintiffAppellee.
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 felonysentences 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 byUnited 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 butfind 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.3Id. 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 voluntarywithout 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 ofthe 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 conspiracyin Count I—offering for sale

and selling migratory birds—qualify as felonies. The other

two objects—killing and transporting migratory birds—are

misdemeanors.3Indeed, 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 MigratoryBird 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 sentencesthey

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 bysentencingDefendants 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.