PORTLAND, Ore. (CN) – The Ninth Circuit has affirmed the sentences of two men convicted of felony trafficking in eagles and migratory birds.
Douglas Vance Crooked Arm and Kenneth Shane pleaded guilty in Montana in 2013 to conspiracy and one count of selling a golden eagle feather fan.
According to charging documents, the pair used deer carcasses to bait and kill birds of prey, including eagles and hawks. The men sold and offered to sell ornaments made from the feathers to undercover agents, prosecutors said.
They were sentenced under felony guidelines to five years of probation and ordered to pay $3,000 each in restitution.
Shane and Crooked Arm appealed, arguing the indictment involved misdemeanors, not felonies.
In 2014, the Ninth Circuit vacated the men’s felony conviction for selling parts of a golden eagle, finding the Migratory Bird Treaty Act makes a distinction between birds and parts of birds. But the panel upheld their felony convictions for conspiracy to violate the treaty.
Recognizing that having one felony conviction instead of two could impact sentencing, the panel vacated sentencing for both counts and remanded for resentencing.
The trial court again imposed felony sentences for Shane and Crooked Arm’s conspiracy charge and sentenced each to one year of probation with credit for time served.
On appeal again, the men said they admitted only to misdemeanor conduct and cannot be sentenced as felons.
In a decision issued Tuesday, the Ninth Circuit panel said Crooked Arm and Shane challenge their sentences but the “core of their claim” appears to be challenging the felony convictions.
“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,” Circuit Judge Diarmuid O’Scannlain wrote, in a footnote, for the majority.
O’Scannlain said case law precludes the court from reconsidering the conviction because the court already ruled on the matter.
The panel also said it was “simply unbelievable” that Shane and Crooked Arm did not understand they were pleading guilty to a felony, and that if they did not want to be sentenced as felons they should have tried to withdraw their pleas.
Circuit Judge Jacqueline Nguyen dissented, saying the felony sentences violated Apprendi v New Jersey “because the conspiracy object to which they admitted – selling migratory bird feathers – was only a misdemeanor.”
Nguyen faulted the panel’s “flawed reasoning” in finding a previous appellate panel affirmed the felony convictions. She said the panel did not require the men be sentenced as felons, only that they be resentenced.
“Because the government failed to secure an admission from Crooked Arm and Shane of any felony object of the conspiracy, they pleaded only to a misdemeanor. As a result, the district court erred in sentencing them as felons,” Nguyen wrote.