US v. Crooked Arm, No. 15-30277 (4-11-17)( O'Scannlain w/Clifton; dissent by Nguyen). The 9th finds an Apprendi challenge foreclosed by law of the case. The defendants had pled guilty to a misdemeanor (sale of protected bird parts -- feathers) but were mistakenly sentenced for a felony. The 9th in that appeal had found error in some counts being felonies when they should have been misdemeanors. It seemingly affirmed a conviction for a conspiracy, and remanded for resentencing. On appeal from the resentencing, the defendants argue that the conspiracy should be a misdemeanor, because the object of it was a misdemeanor. At the original plea colloquy, the defendants admitted to only selling feathers, a misdemeanor, and therefore it could not be a conspiracy felony conviction. The 9th rejected this argument under "law of the case." The 9th reasoned that it had already decided that the conspiracy was a felony in affirming the conviction in the first appeal. Some of the actions of the defendants were felonious. Dissenting, Nguyen argues that the first panel had not decided the Apprendi issue. The object of the conspiracy was a misdemeanor, and not the overt act, which could be considered a felony.
The decision is here:http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/11/15-30277.pdf