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United States v. Katzer

United States District Court, D. Montana, Missoula Division

June 2, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
SHALAKO JAMES KATZER, Defendant-Appellant.

          ORDER AND OPINION

          Dana L. Christensen, United States Chief Judge.

         Defendant Shalako James Katzer ("Katzer") appeals his sentence and judgment, entered May 23, 2016, by United States Magistrate Judge Jeremiah C. Lynch. As discussed below, the Court will vacate the imposed sentence and remand for resentencing.

         BACKGROUND

         On November 25, 2015, Katzer was charged by information with the unlawful taking of a grizzly bear, a threatened species, in violation of 16 U.S.C. §§ 1538(a)(1)(G) and 1540(b)(1), and 50 C.F.R. § 17.40(b)(l)(i)(A). (Doc. 1.) The factual basis underlying this information stems from a camping trip gone awry in an area near Troy, Montana.

         On May 22, 2015, Katzer was camping with his family in the Yaak Falls Campground. While preparing dinner, a motorist drove by the family's campsite and warned that a grizzly bear had entered the campground. Shortly thereafter, a three year old male grizzly appeared roughly 30 yards from Katzer's campsite. Katzer's brother, Cody Katzer, retrieved his .44 Ruger rifle and fired one shot into a tree near the grizzly in attempt to scare it away. The bear did not respond and the brothers began yelling at it. Cody then fired a second shot and the bear took off running downhill towards a nearby river. The brothers pursued the bear and watched as it stopped at the river, turned, and began running back in the general direction of the campsite. After the bear crossed a nearby highway, the brothers stood on the road near the campsite entrance and continued to watch the bear. After Cody fired a third shot, this time from his 9mm handgun, the bear turned back towards them and again began walking in the direction of the campground. At this point Katzer, who was also armed, claims he raised and shot his .45 Kimber handgun in front of the bear. The bear disappeared into the woods and was not seen by the brothers again.

         Shortly thereafter, on May 24, 2015, a grizzly bear carcass was discovered in the campground. Two days later, Cody contacted investigators after being notified that they had found the carcass. Cody explained to the investigators that he and Katzer were in the campground at the time of the shooting and agreed to be interviewed. An agent, presumably with United States Fish and Wildlife Service, interviewed both Katzer and his brother at Cody's house. Both surrendered their weapons for ballistics testing and were interviewed a second time at the campground on June 1, 2015. A firearm examination would later confirm that a bullet taken from the grizzly carcass had been fired from Katzer's handgun.

         After being charged with one count of the unlawful taking of a threatened species, Katzer retained counsel and initially entered a plea of not guilty on December 15, 2015. However, after entering into a plea agreement with the United States, Katzer elected to forgo trial and plead guilty. Per the plea agreement, Katzer agreed to plead guilty to the information in exchange for a recommendation from the United States that he be sentenced to one year of probation on the condition that he timely pay restitution in the amount of $10, 000. Katzer also agreed to a pay a special assessment of $10.

         At the change of plea hearing, United States Magistrate Judge Jeremiah C. Lynch, who would also be the sentencing judge, discussed the plea agreement with Katzer. Judge Lynch noted the sentencing recommendation of the United States, but clarified that he was not bound to this recommendation and could sentence Katzer to the maximum penalties allowed under the law, which was six months in prison. Katzer indicated that he understood and Judge Lynch eventually accepted Katzer's guilty plea. Judge Lynch then ordered United States Probation to prepare a presentence investigation report and notified Katzer that following the preparation of this report, he would be sentenced. On May 23, 2017, Katzer was sentenced to six months in prison and ordered to pay $5, 000 in restitution, plus a $10 special assessment. Katzer now appeals this sentence.

         LEGAL STANDARDS

         Federal Rule of Criminal Procedure 58(g)(2)(A) provides that a party "may appeal an order of a magistrate judge to a district judge ... if a district judge's order could similarly be appealed." This Court has jurisdiction over Katzer's appeal under 18 U.S.C. §§3231 and 3402.

         DISCUSSION

         Katzer raises four issues on appeal: (1) the United States breached the plea agreement by failing to verbally recommend a one year probationary sentence during the sentencing hearing; (2) the magistrate judge erred by imposing Katzer's sentence without adequately conducting an individualized assessment of his culpability; (3) the magistrate judge erred by relying on out-of-record and undisclosed statistical information; and (4) the sentence imposed is substantively unreasonable. Because the Court finds that the first issue raised by Katzer requires that his sentence be vacated and remanded for resentencing, the remaining three issues will not be addressed.

         A. Failure to Recommend Probation at Sentencing

         As mentioned, Katzer entered into a plea agreement with the United States where he agreed to plead guilty in exchange for a recommendation of a one year probationary sentence. However, at the sentencing, the United States never expressly made the recommendation. Instead, at the beginning of the sentencing, Katzer's attorney asked the magistrate judge to not "go beyond what's stated in the plea agreement, Your Honor, which is $10, 000 of restitution and one year of unsupervised probation." (Doc. 21 at 4.) Later, Katzer's attorney again requested that the magistrate judge "stick to the plea agreement and go no further with $10, ...


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