A great title for today's disappointing decision in United States v. Crooked Arm, --- F.3d ---, No. 15-30277 (9th Cir. 2017).
This is the second published decision arising from a prosecution in which the defendants were convicted of conspiring “to kill, transport,
offer for sale, and sell migratory birds, including bald and
golden eagles” in violation of the Migratory Bird Treaty Act."
The issue this time involved whether the defendants' felony sentences violated Apprendi because their guilty pleas established only misdemeanor conduct.
The majority sidesteps the issue, using a law of the case analysis. Essentially, the majority held that, because the prior Panel decision left in place the defendants' conspiracy convictions, they could not now challenge the sentences arising from those convictions.
In a thorough and compelling dissent, Judge Nguyen was having none of it.
She explained: "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."
Further, "[t]he 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."
In my favorite line, Judge Nguyen writes of the majority: "Respectfully, this
reasoning substitutes a strawman argument for the one
Defendants actually make."
I suggest reading the dissent.
