F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

D O U G L A S V A N C E C R O O K E D A R M , Defendant-Appellant. No. 15-30277

D.C. No. CR-13-18-B L G

DW M-01

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

K E N N E T H G. S H A

N E , Defendant-Appellant. No. 15-30280

D.C. No. CR-13-18-B L G

DW M-02

OPI NI O N

A ppeal from the United States District Court for the District of Montana Donald W . Molloy , District J udg e, Presiding

A rg ued and Submitted October 6, 2016

Portland, Oreg on

F iled April 11, 2017U N I T E D S T A T E S V

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O O K E D A R M 2

B efore: Diarmuid F . O’Scannlain, Richard R. Clifton, and

J acqueline H. Ng

uy en, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Dissent by J udg e Ng uy en

SUMMARY *

Crim inal Law

The panel affirmed the d istrict c ourt which, o n r e mand, reimposed f

elony sentences for the defendants’ convictions for conspiracy “to kil l
, t r a n sport, offer for sale, and sell mig ratory b irds, including b ald and g olden e ag les” in violation of the Mig r atory B ird Treaty

Act.

I n a n a r g ument they cast as an A pprendi claim, the defendants, w ho challeng ed their sentences in this ap peal, contended that they admitted during the plea colloquy only to misdemeanor conduct and c annot be sentenced as felons. The panel wrote that the core of the d efendants’ claim appears to be a challeng e to their felony con v i c tions, and held that the law o f the case precludes this court fr o m reconsidering the defendants’ arg uments, as this court has already resolved any chal l e ng e to their felony convictions in United States v

. Vance Crooked Arm , 788 F .3d 1065 (9th Cir. 2015).

Dissenting
, J udg e Ng uy en wro te that the defendants’ felony sentences violated Apprendi
, a nd that because the prior

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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O O K E D A R M 3

panel did not decide whether the d efendants’ felony sentences

w e r e Apprendi error, the law of the case doctrine d oes n o t preclude the panel from deciding that issue here.

COUNSEL

B rian M. Murphy ( arg ued), Holland & Hart L L P, B il l i n gs, Montana; Mark D

. Parker, Parker Heitz & Cosg rove PL L C, B illing s, Montana; f

or Defendant-Appellant Doug las Vance Crooked Arm.

Sherry S c h e el Matteucci, Matteucci L aw F irm PL L C, B illing s, Montan a; for Defendant-Appellant Kenneth G

. Shane.

J effrey S. B eelaert (arg

u ed), Allen B rabender, and Andrew C. M e rg e n, Attorney s; J o hn C. Cruden, Assistant Attorne y General; Environme n t and Natural Resources D ivision, United States Department o f J u stice, W ashing to n , D

. C

. ; M ark S. Smith and L eif M. J ohns on, Assistant United States Attorney s; Michael W

. Cotter, U nited St a t e s A t t o rney ; United States Attorney ’s Office, B illing s, M o n t a na; for PlaintiffAppellee.U N I T E D S T A T E S V

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O O K E D A R M 4

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e are asked to r e v iew sentences imposed for violations of the Mig ratory

B ird Treaty A ct.

I

D o u glas Vance Crooked Arm and Kenneth G

. Sha n e appeal their felony sentences f or conspiring “to kill, transport, offer for sale, and se l l m ig r a tory birds, including bald a nd
g olden eag les” in violation of the Mig r atory B ird Treaty A ct (“MB TA”)
, 1 6 U.S.C. §§ 7 03(a), 707(b), and 18 U .S.C. § 371. Crooked Arm and Shane were t h e subjects of a sting operation conducted by United States F ish & W ildlife Service
ag ents as p art of “Operation Hang ing Rock,” an investig ation into the illeg al sale of mig ratory bird feathers. Over the

course of seven months, undercover ag en t s posed as buy ers seeking to purchase fans made from migr a t o r y bird feathers from Crooked Arm a n d Shane before ex ecuting search
warrants ag ainst them. United States v. Vance Crooked A rm ( Crooked Arm I

), 788 F .3d 1065, 1068–69 (9th Cir. 2015).

I n F e bruary 2013, a g rand jury indicted Crooked A rm a nd Shane o n four crimina l counts. Count I alleg ed a conspiracy “to kill, transport, offer for sale, and sell mig rato ry birds, including bald and g o lden eag les,” in violation of 16 U.S.C. § § 7 0 3 (a), 707(b), and 18 U.S.C. § 371. I t also alleg ed t h at Cr o o k e d Arm and Shane committed one or more of the following acts in furtherance of the conspiracy :U N I T E D S T A T E S V

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O O K E D A R M 5

1. Crooked Arm “ p laced deer carcasses on the land in order to attract and capture birds o f
prey , including eag les and hawks.”

2

. Crooked Arm and Shane “ sold a g ol d e n eag le feather fan for $1,500.”

3. Crooked Arm and Shane “offered to sell a mag pie feather fan for $800.”

4. Crooked Arm and Shane “offered to sell a bald eag le feather fan, and re ce i v e d a down
pay ment of $500.”

5

. C rooked Arm “offered to sell a w int e r hawk tail fan for $500.”

6. Crooked Arm “offered to sell a bald eag le tail fan for $1,000.”

Count I I alleg ed that Crooked Arm and Shane knowing ly sold p arts of a g olden e ag le for $1,500; Count I I I alleg ed that Crooked A rm and Shane offered to sell parts of a mag p ie for $800; a nd Count I V alleg ed that Crooked Arm an d S hane knowing ly o ffered to sell parts of a bald eag le for $1,000, all in violation of 16 U.S.C. §§ 703, 707(b), and 18 U.S.C. § 2.

Crooked A rm and Shane filed a motion t o d i s m i ss the indictment for failure to state a felony c laim, contending that their conduct in selling parts of birds was a mis demeanor only

. The district co u r t denied this motion, r u ling that § 707(b) does n ot disting uish between the sale of whole birds

an d b i r d parts and thus the indictment properly charg ed felony violations.U N I T E D S T A T E S V

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O O K E D A R M 6

Subsequently
, the defendants entered conditional pl ea ag reements by which they pled g uilty to Count I and Count I I
, while reserving their rig ht to appeal the district court’s denial of their mot i o n t o 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 charg es ag ainst them and the conseque n c e s o f their pleas. I n addition to their g eneral p l e a s o f g uilty to Count I a n d C o unt I I
, Crooked Arm and Shane specifically

a d mitted to selling bird feathers, and Crooked Arm a l s o admitted to d

ropping off a deer carcass in the hi l l s “ fo r the animals and the birds to eat.”

After bei n g sentenced to probation, Crooked Arm a nd Shane appealed the di strict court’s denial of their motion to dismiss. Thus, in Crooked A r m I
, Crooked Arm and Shane challen ged their convictions by arg uing that the sale of bird feathers was a misdemeanor under § 707. This court agr eed, holding that the MB TA makes a distinction between birds and parts of birds. Crooked Arm I
, 788 F .3d at 1073–75. W e vacated their felony

convictions for selling parts o f a g olden
eag le (Count I I ) but affirmed their f e l o n y convictions for conspiracy

to violate § 703(a) (Count I ), throug h the killing
, transporting
, offer i n g f

or sale, or selling of mig ratory birds. Recog niz ing that having o ne felony conviction instead of two could impac t t h e sentence for Count I
, we vacated the
sentences for both counts and remanded for resentencing

. Id.
at 1072, 1080. On remand, the d i strict court ag ain imposed felony sentences for their convictions under Count I
, sentencing each to one y ear of probation with c redit for time served. Crooked A rm a

nd Sh a ne now contend that they admitted only to misdemeanor con d u c t and cannot be

s entenced as f

elons, an a

rg u ment they cast as an App r e n d i claim.U N I T E D S T A T E S V

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O O K E D A R M 7

I I

A

W h ile Crooked Arm and Shane challeng e their sentences in this a ppeal, the core of their claim actually appears to be a challeng e to their felony convictions— the log i c a l predicate of being sentenced as a felon is conviction of a felony

. 1 Yet, th i s court has already resolved any challeng e to their felony convictions in Crooked Arm I

. W e held that Count I properly ch ar ge d a felony offense, and we affirmed their Count I felony convictions. Id. at 1071–72, 1080.

Crooked Arm a n d S h ane point to lang uag e in Crooked Arm I stating that “Count I clearly charg e [ d] in part a statutory felony ,” id. at 1071–72 (emphasis added), an d use t h i s to arg ue that their convictions were not felonies. Ye t , such selective quotation is a misreading of o ur opinion. At least six other times in Crooked Arm I , we stated that Count I charg ed a felony w ithout including the qualify ing lang uag e of “in part.” 2 And, in contex t, we ex p lained:

1 A lth o u g h C r o o k e d Arm an d Sh an e claim th at th ey are n o t ch allen g in g th eir co n v ictio n s, th i s is th e essen ce o f th eir d isp u te. C o n trary to th e d i s s e n t ’ s su g g estio n , it w ou ld b e ab su rd to af f irm Cro o k ed A

rm ’ s

an d Sh an e’ s

f elo n y co n v ictio n s b u t f

i n d th eir felo ny sen ten ces im

p ro p er on th e b asis th at th e relev an t cr i m es w ere o n ly m isd em ean o rs. If o n e is

co n v icted o f f

irst- d eg ree m

u rd er, i t w o u ld b e bizarre to claim th at h e can b e s en ten ced o n ly f

o r m an slau g h ter. No tab ly
, C ro o k ed A rm an d Sh an e d o

n o t c l a i m th at th e d istrict co u rt im pro p erly calcu lated th eir Gu id elin es’

ran g e o r b rin g sim ilar sen ten cin g claim s.

2 S ee i d

. at 1 0 6 8 (“ W e co n clu d e

. . . th at

. . . Co u n t I

. . . ch arg e s a f elo n y ”), 1 0 7 1 (“ [T ]h is [C]o u n t [I] p lain ly ch arg ed a f elo n y ”), 1 0 7 2 (“ T h e

su b stan tiv e MB T A of

f en se

. . . m ak es C o u n t I a f elo n y ch arg e”) (“ Co u n tU N I T E D S T A T E S V

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O O K E D A R M 8

[ E] ven if Defendants were righ t t hat sale o f
eag le feathers is only a misdemeanor, Cou n t I cl e arly charg e[ d ] in part a statutory felon y

. . . because [ it] charg e[ d] a conspiracy to “ki ll, transport, o ffer for sale, and sell mig ratory b irds, including bald an d g olden
eag les,” conduct that falls w ithin the MB TA’s felony provisions. And the o v ert acts alleg ed included p lacing deer carcasses to attract birds of prey

.

Id. at 1071–72. Thus, “in part” makes it clear that even if the sale o f f eathers m i gh t n o t a mount to a felony
, “placing deer

carcasses to attract b irds of prey ” d id support felony convictions. 3 Id. And we upheld these con v i ctions in our disposition. Id. at 1080.

B

Crooked A rm and Shane now contend that they admitted only to selling bird feathers during the plea colloquy
, and b y implication they did not admit t o “p lacing deer carcasses to attract birds o f prey ,” the overt act supporting felony charg e s

u p o n which Crooked Arm I relied. Id. at 1072. Thus, th e y arg ue that they only

pled g uilty

to conduct that constituted a misdemeanor. Yet, to the ex tent that Crooked Arm and Shane

I

. . . ch arg ed a f

elo n y o f f en s e”), 1 07 3 (“ Co u

n t I ch arg ed a f

elo n y ”), 1 0 8 0 (“ Co u n t I ch arg ed a f

elo n y ”).

3 Co n trary to th e d i ssen t, it is n o t u n d isp u ted th at Cro o k ed A rm an d Sh an e ad m itted o n ly to m isd em ean o r co n d u ct. A t th e p l ea h earin g , w h en t h e d istrict co u rt ask ed Cro o k ed A rm w h y h e w as g u ilty
, Cro o k ed A rm

ex p lain ed th at h e “ h ad a d eer carcass in th e back o f [h is] tru ck ,” w h ich h e to o k “ o u t in th e h i lls an d dro p p ed

. . . o f f f or th e an im als an d bird s to eat.”U N I T E D S T A T E S V

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O O K E D A R M 9

are challeng ing the adequacy o f their pleas to support felony convict i o n s (and thus felony sentences), this is also foreclosed by

Crooked Arm I

.

I ndeed, Crooked A rm and Shane presented the very same arg uments in supplemental briefing in Crooked Arm I

. They specifically conten d ed that Count I charg ed both felony a nd misdemeanor viol a tions and that b ased on their p leas, their convictions were for misdemeanors only

. And they raised the Apprendi point that they

make now.

Nonetheless, we h eld that “ the record before us d[ id] not permit a conclusion that D efendants’ pleas were n ot knowing and voluntary without adequate factual basis.” Id. at 1072 n.5. Alternatively
, we e x plained that Crooked Arm and Shane “waived” any c halleng e 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, w e u p h e l d their felony convictions. Id. at 1080.

C

Under law of the case, w e are precluded from reconsidering these issues. S e e United States v. Alexander
, 106 F .3d 874, 876 (9th Ci r. 1 9 9 7 )

. Thus, w e will not reevaluate Crooked Arm and Shane’s claims t hat the
g overnment needed to o btain a specific admission from them during the plea colloquy in or der for them to be convicted (and sentenc e d ) as felons. Defendants cannot relitig ate the adequacy of their pleas by resurrecting them in the g uise o f a sentencing claim.

Th e dissent a

rg ues that law of the case does not apply
, citing our decision in United States v. Caterino
, 29 F .3d 1390,U N I T E D S T A T E S V

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O O K E D A R M 10

1395–96 (9th Cir. 1994) overruled on other g rounds by W

itte

v. United States
, 515 U

. S

. 389 (1995). Caterino
, however, involved a situation w here we held that a defendant w as free
t o raise an a

rg ument on remand for resentencing w h i c h w e had found waived in the initial appeal. I d.

Unlike Caterino , the problem here is not that the district
court merely failed to a d dress the arg umen t before the first appeal, but that our decision on the merits of t h e p l e a ag reement f

orecloses further review. I f Crooked A r m I h ad

me r e l y held that Crooked Arm and Shane had waived their ability to challeng e the adequacy of the pleas, Caterino mig ht be on point. B ut we also rejected Crooked Arm and Shane’s
arg uments on their face. See Crooked Arm I
, 788 F

. 3d at 1072 n.5. I t would be improper to reex amine them now.

F urther
, i n Ca terino there was no challeng e to the underly ing c onviction. I nstead, the q u e s t ion w as a pure sentencing c laim—whether the defendant’s consecutive
sentences violated the Double J eopardy c l a u se. See 2 9 F .3d
at 1396. T he dissent is correct that “[ o] n remand, the district
court g enerall y s h o uld be free to consider any matters relevant to sentencing
, even those that ma y n ot have been raised at the first sentencing hearing
, as if it were sentencing de novo.” United States v

. Matthews
, 278 F .3 d 8 80, 885–86 (9th Cir. 20 0 2 ) (citing United States v. Ponce
, 51 F .3d 820, 826 (9t h Cir. 1995)). B ut Crooked Arm and Shane’s c laims about the adequacy of the p leas s u pporting their felony convictions are not sentencing issues.

D

I ndeed, because we affirmed Crooked Arm’s and Shane’s felony convictions and vacat e d only their sentences, theU N I T E D S T A T E S V

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O O K E D A R M 11

district court was precluded f rom evaluating the adequacy o f their pleas or their convictions. Such analy sis fell outside the
scope of the r emand. See M endez-Gutierrez v

. G o n zales
, 444 F .3d 1168, 1172–73 (9th Cir. 2006) (collecting cases).

E

F inally
, e ven if one accepts Crooked Arm a nd Shane’s contention that they did not realiz e t h at they were pleading
g uilty to f elony conduct (apart from the sale of feathers), a fter this court upheld their felony convictions in Crooked Arm I
, the district c ourt offered them a chance to wi t h d r a w their
g uilty pleas on r emand. Reg ardless of whether t h e district
court had the authority to do so, if Crooked A r m and Shane did not want to be sentenced as felons, they should have tried to withdraw their pleas. Cf. U nited States v. Broce
, 488 U.S. 563, 571 (1989). I n the wake of Crooked Arm I
, to claim that they did not understand that they were pleading g u ilty to a felony ( or w ould b e sentenced as felo n s ) i s simply unbelievable.

I I I

I n sum, b e cause Crooked Arm I disposes of their

a r guments, Crooked Arm’s and Shane’s challeng es to their felony sentences fail. W e ex pres s no opinion whatsoever on the merits of their Apprendi claim.

AF F IRMED.U N I T E D S T A T E S V

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O O K E D A R M 12

NGUYEN, Circuit J u dg e, dissenting :

Crooked Arm’s and Shane’s felony sentences viol a t e A p prendi v. New Jersey
, 530 U.S. 466 (2000), becau s e t h e conspiracy object to which they admitted—selling mig ratory bird feathers—was only a misdeme a n o r

. Yet the majority

r efuses to reach the merits of D efendants’ sentencin g arg ument b ecause a p rior p anel purportedly “affirm ed t heir felony c onvictions.” Majority Op. at 6. The majority ’s f l awed r easoning is as follows: the p rior panel, by n o t vacating the convictions
, implicitly ruled that Defendants should be sentenced as felons on remand. B ut the panel made

no such ruling
, which w o u l d have required a finding that Defendants a dmitted to one o f the felony objects—rather than the misdemeanor objects—alleg ed in Count I ’s multi-object conspiracy

. I nstead, the panel held that Count I c harg e d 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 v a c ated. United States v. Vance Crooked A rm ( C r o o k e d Arm I

), 788 F .3d 1 065, 1070 n .2, 1071–72, 1 079 (9th Cir. 2015) (per curiam).

B e cause Defendants’ sentences violate Apprendi
, a nd because the law of the case does not prevent us from

corr e c t i n g this error (indeed, Supreme Court and our o wn precedent require us to fix it), I respectfully

dissent.

I

The m a j o rity r elies solely on a p rocedural g round not advanced by the g overnment to deny relief, and it is therefore important at the outset to understand the unusual posture o f this case.U N I T E D S T A T E S V

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O O K E D A R M 13

The parties do not dispute that, d uring the plea colloquies, Crooked Arm and Shane admitted o n l y to a misdemeanor object: a c onspiracy to “sell parts of bird s , ” namely
, mi gr a t ory bird feathers. 1 The district court nevertheless initially sentenced them as f elons based on the mista k en belief that selling parts of birds is a f elony

. No one addressed whether a felony sentence could be supported o n othe r g rounds because the di s t r ict court and the parties believed—mistakenly

—that the only object o f the conspiracy alleg ed in Count I was to “sell the v arious parts of the birds.” 2 W h ile the district court and the parties all understood Count I as alleg ing only a conspiracy to sell bird parts, they disagr ee d a s to whether doing so was a misdemeanor (as Crooked Arm and S h a n e a rg ued) or a felony (as the
g overnment and the district court believed).

1 T h e m aj o rity co n f

u s in g ly f o cu ses on Cro o k ed A rm ’ s ad m issio n to

an alleg ed o v ert act: p lacin g deer carcasses o n th e lan d . Maj o rity

Op . at 8 & n .3

. B u

t, as Cro o k ed A rm

an d Sh an e ex p lain
, th i s ov ert act—w h ich itself is n o t a f elo n y —d o es n o t co n v ert a m isd em ean o r co n sp i racy in to a f elo n y

. See Ia n n elli v. Un ited S ta tes , 4 2 0 U.S. 7 7 0
, 7 8 5 n .1 7 (1 9 7 5 ). W h eth er th e co n s p iracy is a m i sd em ean or o r a f elo n y tu rn s n o t o n th is

o v ert act, b u t rat h e r o n th e “ o b j ect o f th e co n sp iracy ” ad m i t ted b y Def en d an ts, w

h ich w as th e sale o f f

eath ers. Cro o ked Arm I

, 7 8 8 F.3 d at 1 0 7 0 n .2 , 1 0 7 1 ; 1 8 U.S.C. § 3 7 1.

2 A t t h e p lea co llo q u y , t

h e d istrict co u rt to ld Sh an e th at w h at th e in d ictm en t is “ say in g in C o u n t O n e is th at y o u co n sp ired w ith Mr. Cro o k ed A rm

. . . to sell th e v ario u s p arts o f th e b i rd s.” No p a r t y d isag reed w i th th i s ch aracterizatio n

. T h at is b ecau se th e g o v ern m en t h ad alread y co n ced ed
, an d Def en d an ts ag reed
, th at th e “i n d ictm en t h ere ch arg es d e fe n d a n t w ith sellin g an d o f f erin g to sell b ird p arts.” T h e g o v ern m en t an d th e d istrict co u rt sim p l y t o o k th e p o sitio n th at th e in d ictm en t’ s u se o f t

h e s tatu to ry term “ m ig rato ry b ird ” in clu d ed “ p arts of b ird s.” A s Cro oked A rm I h e l d
, th at co n f latio n o f b ird s w ith b ird parts

w as erro r. 7 8 8 F.3 d at 1 0 7 5

.U N I T E D S T A T E S V

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O O K E D A R M 14

On a ppeal, the panel in Crooked Arm I a g r e ed with Defendants t h at, unlike the sale of whole birds, the sale o f bird p arts was only a misdemeanor. 788 F .3d at 1079. T he panel nevert h e l e s s affirmed the district court’s denial of the motion to dismiss because “Count I clearly charg e s in part a statutory felony ,” name l y , a conspiracy to offer for sale a nd sell birds. Id. at 1071–72 (emphasis added).

This h o lding in Crooked Arm I is consistent with the plain lang uag e of the statute, which shows that only two of the four alleg ed objects of the conspiracy in Count I

— offering

for sale and s e lling mig ratory birds—qualify as felonies. The other
two objects—

k illing and transporting mig ratory b irds—are misdemeanors. 3 I ndeed, the g overnment conceded this point
at oral a rg ument, as did the district court below when deny ing th e m o t ion to dismiss. T his distinction matters because, if Crooked Arm and Shane admitted only to misdemeanor objects, t h en the conspiracy to which they pled is itself only

a misdemeanor. S

ee 18 U

. S.C. § 371; Crooked Arm I
, 788 F .3d at 1071.

I n supplemental b riefing r equest e d b y the panel in Crooked Arm I

, D efendants a dvanced se v e r a l arg uments, including that Apprendi required them to be sentenced a s misdemeanants for Count I b e ca use “the object of the conspiracy to which th e Defendants pled g uilty (selling

3 Un der t h e Mig rato ry B ird T reaty A ct, it is a f elo n y to “ sell” o r “ o f

f er f o r sale

. . . an

y m ig rato ry b i rd .” 16 U.S.C. § 7 0 7 (b )(2 ). A b sen t i n ten t to sell, th e A ct m ak es it a m isd em ean o r to “ k ill” o r “ tran sp o rt” a m ig rato ry b ird

. S ee id

. § § 7 03 (a), 7 07 (a). Co n sisten t w ith Cro o ked Arm I
, o u r sister circu its h av e also reco g n i zed th at k i llin g m ig rato ry b ird s is o n ly a “m isd em ean o r” u n d er 16 U.S.C. § 7 0 7 (a). S ee Un ited S ta tes v. Ap o l l o En erg ies, In c. , 6 1 1 F.3 d 6 7 9
, 6 8 1 (1 0 th Cir. 2 0 1 0 ); Un ited S ta tes v. CITGO Petro leu m Co rp

. , 8 0 1 F.3 d 4 7 7 , 4 8 8 (5 t h Cir. 2 0 1 5 ).U N I T E D S T A T E S V

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O O K E D A R M 15

feathers) is a misdemeanor.” Defendants therefore requested that the panel “remand for re-se n tencing rather than dismissing ” Count I

. T h e p a nel oblig e d by v acating their sentences and remanding

. Id. at 1080.

II

A

The linchpin of the majority ’ s o p inion is that, under the law of the c ase d octrine, we m u s t d ecline to hear Crooked Arm’s and Shane’s sentencing challeng e. I disag ree. B ecause the prior pan e l “did not d ecide” 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 S tates v

. Almazan-Becerra
, 537 F .3d 1094, 1097 (9th Cir. 2008) ( h olding that the law of the case doctrine did not bar consideration on re m a n d of sentencing
arg ument because the prior panel, despi t e ad dressing the issue, did n ot decide it); see W yler Summi t P’ship v. Turner Broad. Sys., Inc. , 235 F

. 3d 1184, 1193 (9th Cir. 2000).

Crooked Arm a

nd Shane are not, as the majority characteriz es it, improperly attem p t ing to “relitig ate the adequacy of their p leas by resurrecting them in the g uise o f

a sentencing claim.” Majority O p. at 9. To the contrary , they

are not c h al leng ing their convictions under Count I ; they do
not arg ue that their “pleas we r e n o t knowing and voluntary and without adequate factual basis,” two issues addressed in

a footnote in Crooked Arm I

. 788 F .3d a t 1072 n. 5. I nstead, Crooked A rm and Shane c oncede the propriety of their convictions on Count I
, but challeng e only the sentences they received on remand. The majority conflates a challeng e to a sentence with a challeng e to a conviction—two different leg alU N I T E D S T A T E S V

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O O K E D A R M 16

theories w ith different r emedies based on different facts—so

as to shoeho r n t h i s appeal into a theory rejected in Crooked Arm I

. 4

Contrary to the majority ’s sug g estion, the pa n e l in Crooked A rm I never “rejected” the Apprendi arg ument inc luded in Defendants’ supplemental briefing ; the panel simply did not d iscuss the arg ument or even mention Apprendi

. Majority

Op. at 10. Nor was it required to do so,

as it g r anted Defendants the r elief they soug ht: the panel h eld that Co u n t I c harg ed a felony only in p art, that Defendants admitted only to a conspi r acy to sell bird parts, that the sale of bird parts w as a misdemeanor, and that Defendants’ felony
sentences must be vacated. Crooked Arm I
, 788 F .3d at 1070 n.2, 1071–72, 1079. These h olding s—which are law o f the case—laid the necessary g round w ork for Defendants to receive misdemeanor sentences on remand.

Having vacated the sentences, the panel in Crooked A rm I did not reach the issue of whether Defendants were properly sentenced for a f

elony

. The passag e s c i t e d by the majority describing Count I as charging a felony only underscore the limits of Crooked Arm I ’s h olding
, namely
, that the district
court properly denied the motion t o d i s m iss as to Count I

. B ut a determination that Count I ch a r g e d a felony say s noth i n g about whether Defendants w ere properly sentenced

as felons because, a s the g overnment conceded and the

4 W e ro u tin ely reco g n ize t h e d istin ctio n b etw een a ch al l e ng e to a

co n v ictio n a n d a ch allen g e to a sen ten ce b y af f irm in g co n v ictio n s b u t

v acatin g sen ten ces d u e to Ap p ren d i e r r o r

. S

ee, e.g

. , Un ited S t

a t es v. Lo cklin
, 5 3 0 F.3 d 9 0 8
, 9 1 1

– 1 3 (9 th Cir. 2 00 8 ). T h eref o re, co n trary to th e

m aj o rity ’ s su g g estio n , it w o ul d n ot be ab su rd to af f i rm Def en d an ts’

co n v ictio n s b u t also h o ld th at th eir f elo n y sen ten ces w ere im

p ro p er.U N I T E D S T A T E S V

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O O K E D A R M 17

district court held, Count I also charg ed a misdemeanor. Under such circumstances, to determine that a felony
sentence was proper under Apprendi would have required the panel to h old that Crooked Arm and Shane admitted to a felony object. See United States v. Guerrero-Jasso
, 752 F .3d 1186, 1189–91 (9th Cir. 2 014). T h e p a n e l never did so. B ecause Crooked Arm I ’s analy sis “ n e ither acknowled g e d n o r discussed” the Apprendi a r gu m ent and, in fact, g ranted Defendants the relief they requested, the law of the case doctrine does not apply

here. H egler v. Borg
, 50 F .3d 1472, 1475 (9th Cir. 1995).

B

Even if Crooked Ar m I ’ s s ilence on the issue could be read as a rejection o f Defendants’ Apprendi arg ument (which it cannot), the law of the case doctrine does not bar relief here because the prior p anel “wiped the slate clea n ” by vacating the orig inal sentences and remanding for resentencing

. Pepper v. U

nited States
, 562 U.S. 476, 5 0 7 ( 2 0 1 1 )

. This is
true even if Crooke d Arm I vacated their sentences on different g rounds 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 doct r i ne” to rule the same way as in prior sentencing because the c o urt of appeals had vacated the sentence, albeit on different g r o unds). 5

5 T h e tw o cases relied u

p o n b y th e m aj o rity d o n o t h o ld o t he r w i s e

. T h o se cases d o n o t in v o lv e an ap p eal f ro m a rem an d f

o r resen ten cin g , n or d o th ey ad d ress th e b in din g au th o rities d i scu s sed h e rein

. S ee Un ited S ta tes v. Alexa n d

er , 1 0 6 F.3 d 8 7 4
, 8 7 5 (9 th Cir. 1 9 9 7 ) (h o ld in g t h at th e

“ district co u

rt ab u sed its d iscretio n b y d ep artin g f ro m th e law o f th e case

an d ad m ittin g a p rev io u sly s u pp ressed co n f

essio n ”); Men d

ez-Gu tierrez v. Go n za les
, 4 4 4 F.3 d 11 6 8
, 11 7 3 (9 th C ir. 20 06 ) (h o ld in g th at t h e B o ard of Im m i g ratio n A

pp eals w as b ou n d b y t

h e f irst ap p eal’ s “ lim ited rem an d ” toU N I T E D S T A T E S V

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O O K E D A R M 18

“On r emand, the d istrict court g enerally should b e free to consider a

ny m a tters relevant to sentencing
, even those that
may not have b een raised at the first sentencing hearing
, as if i t w e re sentencing de novo.” United States v. M at t h e w s , 278 F .3d 8 80, 885–86 (9th Cir. 2002) (en banc). The present

case underscores the policy reasons behind the rule g enerally permitting d efendants to raise all av a i l a ble sentencing
arg uments on remand: doing so provides the “predic t ab i l ity and consistency in sentencing ” necessary for a “just sentence.” Matthews
, 2 78 F .3d a t 886 (quoting United States

v. Matthews
, 2 40 F .3d 8 06, 823 (9th Cir. 2000) ( O’Scannlain, J
., dissenting )). I n the first sentencing hearing, t he district

c o u rt sentenced Crooked A rm a nd Shane based on t h e mistaken belief that Count I a lleg ed only a conspiracy to “sell the various parts of the birds” and that doing so was a felony
, a leg al conclusion that w e reversed in Crooked Arm I

. As the district court noted on remand, “ nobody c o ntemplated” that the Ninth Circuit would hold that Count I charg ed a felony in part

. Rather, the district c o urt a n d the parties ex pected either

a total a ffirmance or total reversal. T h u s , i n their first sentencing hearing
, Crooked Arm and Shane had no reason to challeng e an Apprendi error that had y et to o c c u r a nd which d e p e n d e d on a future partial reversal that nobody

ex p ected.

The majority ’s only answer is that Defendants’ Apprendi
arg ument is n ot a

n Apprendi arg u ment but rather a challeng e to the “ adequacy of the pleas,” a n arg ument rejected in Crooked Arm I

. Majority Op. a t 10. R e spectfully
, this reasoning substitutes a strawman arg ument for t h e o ne Defendants actually make. Crooked Arm and Shane clearly

co n sid er o n ly “ w

h eth er [th e p etitio n er] h as estab lish ed a p rim a f acie case

o f elig ib ility

f o r asy l u m ”).U N I T E D S T A T E S V

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O O K E D A R M 19

state that their “pl e as were adequate to convict them” on Count I b ecause they a d m i t t ed a misdemeanor object o f the conspiracy : the sale of bird feathers. They simply challeng e their senten ces because they p led to a misdemeanor conspiracy
, b ut w ere sen tenced as felons—a quintessential Apprendi error.

C

F urthermore, we d o not apply the law of the case doctrine when doing so would be “ clearly erroneous” and would result in “a manifest injustice.” Pepper
, 5 62 U.S. at 5 06–07. Such is the case here. Closing our ey es to a clear Apprendi error is

a manifest injustice because, unlike a misdemeanant, a felon
must “c a r r y t hroug h life the d isability of a felon[ y ] and b y

reason of that fact he mig ht lose certain civil rig hts,” such a s the rig ht to vote, serve on a jury

, or h old political office. See Fiswick v

. United States
, 329 U.S. 211, 2 2 2 & n.10 ( 1 946); United States v. Chovan
, 735 F .3d 1127, 1145 ( 9th Cir. 2 013) (B ea, J
., dissenting ) (unlike misdemeanant s , “felons can suffer numerous restrictions on their constitutional rig hts”).

D

Defendants also could n ot h a v e w aived in Crooked A rm I a challeng e to a sentencing error that h ad not y et occurred. I n United States v. Caterino
, we affirmed Caterino’s convictions in his first appeal and held that he had “waived” his doubl e jeopardy sentencing arg ument by acquiescing below. 29 F .3d 1 390, 1393, 1 3 9 5 (9th Cir. 1994) overruled

on other grounds by W

i t te v. United States
, 515 U.S. 389 (1995). However, we identified a different error a nd remanded for resentencing

. Id. at 1393. O n remand, the district court rejected Caterino’s attempt to raise h i s d o u bleU N I T E D S T A T E S V

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O O K E D A R M 20

j e opardy arg ument, finding that the arg ument was barred b y the law of the case doctrine. Id. at 1395. W e reversed ag ain, holding that the defendant was “free to mak e a n y n ew arg uments o r concessions he deemed appropriate g iven the

new set of circumstances” of a vacated sentence and remand f or resentencing

. Id. at 1 396. W e ex plained that, a ft e r a n appella t e court v acates a sentence and remands for resentencing
, a defendant is not “bound at the resentencing ph as e by his [ earlier] waiver.” Id. at 1396; see also United States v. Garcia-Guizar
, 234 F

. 3d 4 83, 490 (9th Cir. 2 000) (rejecting the arg ument that the g overnment “waived its rig ht
to c o r r ect [ on remand] the error in the orig inal sentencing because it did not cross-appeal from the orig inal sentence”).

E

The majority faults Crooked Arm and Shane for not withdrawing their pleas o n remand, stating that they “should h ave tried” to do so if they “did not want to be sente n c e d a s felons.” Majority

Op. at 11. B ut the district court’s offer to withdra w t h e ir pleas came with a warning that doing so would erase their victory on appeal, b ecause the g overnment would be p ermitted to recharg e them as felons. A district court cannot immuniz e itself from Apprendi error simply by

o f f ering a d e fendant the Hobson’s choice between a n unconstitutional sent e n c e a nd withdrawal of his p lea. That dubious p roposition appears nowhere in the case c ited by the

ma j o r i ty , which rejected a collateral attack on a conviction because “a voluntary and intellig ent plea of g uilty made b y an accused person, who has been a dvised by competent counsel,
may not be collaterally attacked” a b sent certai n e x ceptions. United States v. Broce
, 488 U.S. 563, 574 (1989) (q u o ting Mabry v. Johnson , 467 U.S. 504, 508 (1984). That case has nothing to do with the A

p prendi error that arose here.U N I T E D S T A T E S V

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O O K E D A R M 21

III

W h ile not address e d by the majority

, the d istrict court committed Apprendi error by s e ntencing Defendants as felons because the g overnment failed to secure an admission o f any felony object of the conspiracy

.

Under Apprendi a

n d its prog eny , a sentencing court may not increase the penalty for a cr i m e bey ond the statutory

max imum by r e l y ing on facts, other than the fact of a prior conviction, “that were n either admitted by the [ d] efendant nor found by a jury bey ond a r easonable doubt.” Guerrero-Jasso
, 752 F .3d at 1189. E r

ror occurs even if the court sentences a defendant to l e s s than the max imum penalty provided b y statute because the term “‘statutory max imum’ for Apprendi
purposes is the max imum sentence a judg e may impose solely

on the basis of the facts reflected in th e jury verdict or admitted by the defendant. ” Blakely v. W ashington
, 542 U.S. 296, 303 (2004).

The g overnment b ears the burden “at the plea c olloquy to seek an ex plicit admission o f a ny u nlawful c onduct it seeks
to a ttribute to the defendant.” United States v. Hunt
, 656 F .3d 906, 912 (9th Cir. 2011) (quoting U n i t e d States v. Thomas
, 355 F .3d 1191, 1199 (9th Cir. 2004)). Therefore, in order to obtain f elony sentences here, the g overnme n t must have elicited from Crooked Arm a nd Shane ex plicit admissions to a felony object of the conspiracy : offering for sale or selling mig ratory bi rds (not merely bird feathers). The g overnment failed to do so. I n fact, d u r i n g his plea c olloquy
, Shane specifically reject e d t he g overnment’s offer of proof a s “wrong and misleading ,” admitting only to helping Crooked Arm sell his daug hter’s fan made of mig ratory bird feathers. Crooked Arm also admitted only to selling feathers a ndU N I T E D S T A T E S V

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O O K E D A R M 22

leaving a deer carca s s out for birds to eat. B ut neither admitted to conspiring to sell or o ffer for sale mig ratory birds.

The g overnment falls b a c k on the arg ument that Crooked Arm and Shane pled g uilty to a felony because the indictment alleg es a multi-object co n spiracy that includes both misdemeanor and felony objects. T hat is not the law. W h ere,

as here, a defendant pleads g uilty to a count a lleg ing conduct in the conjunctive, the defendant admits o nly the least serious conduct. S

ee Guerrero-Jasso
, 752 F .3d at 1191 ( v a c ating a sentence based on a g uilty plea to a charg e a ll e ge d i n t he conjunctive because when “either ‘A’ or ‘B ’ could support a conviction, a d e f

endant w ho pleads g uilty to a charg ing document a l l eg ing ‘ A and B ’ admits only ‘A’ or ‘B ’” (quoting Y

oung v. Holder
, 697 F .3d 9 76, 988 (9th Cir. 2 012) (en banc))). That is because, by p leading g uilty to the charg ing document, a defendant only “ admits the facts constituting the elements of the charg e,” but not alleg ations that are “ not n ecessary

” for a conviction. Uni t ed States v

. Cazares
, 121 F .3d 1241, 1246–47 (9th Ci r. 1997) ( vacating
sentence b ased on a g uilty plea to a n i n d i c t ment c harg ing a drug conspiracy and alleg ing that t h e d efendant possessed a g un b ecause g un possession was not an elem e n t o f t he d rug conspiracy

charg e).

Here, all that was necessary for a conviction under Count I was a n admission to any one of the four a lleg ed objects o f the conspiracy
, including the misdemeanor o bjects of killing and transporting birds. See Griffin v. U nited States
, 5 02 U.S. 46, 56–57 (1991) ( affirming a c onviction on a multi-object conspiracy charg e under 18 U.S.C. § 371 where the evidence implicated the defendant as to only one of the two objects o f the conspiracy

). B ecause the g overnment failed to secure an admission from Crooked Arm and Shane of any felony objectU N I T E D S T A T E S V

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O O K E D A R M 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.

* * *

B e cause the distr i c t c ourt c ommitted Apprendi error, I would vacate the sentences and remand with instruc t ions to resentence Crooked Arm and Shane as misdemeanants.