United States v. Carpenter's Goldfish Farm, United States of America v. Marvin Carpenter

Marvin Carpenter was found by this court to have been wrongly convicted under the Lacey Act, 16 U.S.C. § 3372 , and his case was remanded for sentencing for the other offenses he had committed. United States v. Carpenter, 933 F.2d 748, 762 (9th Cir.1991). He now appeals his new sentence. We reverse and remand for resentencing.

PROCEEDINGS

Carpenter was convicted of making a false statement to the United States Fish and Wildlife Service (the Service) in violation of 18 U.S.C. § 1001 ; of killing migratory birds in violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 , 707(a); and of violating the Lacey Act, 16 U.S.C. § 3372 , 3373(d)(2) by “acquiring migratory birds killed in violation of federal law.” Id. at 749 .

The probation office calculated Carpenter’s sentence under § 2Q2.1 of the Sentencing Guidelines. This section is headed: “Specially Protected Fish, Wildlife, and Plants; Smuggling and Otherwise Unlawfully Dealing in Fish, Wildlife, and Plants.” Its Commentary gives as the relevant statutory provisions, inter alia, 16 U.S.C. § 707 (b). Its Background states: “This section applies to violations of the Endangered Species Act, the Bald Eagle Protection Act, the…