                                                                            FILED
                            NOT FOR PUBLICATION
                                                                              JUL 09 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-30188

              Plaintiff-Appellee,                D.C. No.
                                                 1:15-cr-00254-BLW-1
 v.

GREGORY OBENDORF,                                MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                      Argued and Submitted February 9, 2018
                               Seattle, Washington

Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.

      Gregory Obendorf was convicted of unlawfully baiting migratory ducks to

facilitate hunting, in violation of 16 U.S.C. § 704(b)(2), and conspiring to do the

same. He appeals his conviction and sentence. We have jurisdiction under 28

U.S.C. § 1291, and we affirm. We resolve Obendorf’s challenge to the district



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court’s interpretation of the Migratory Bird Treaty Act regulations in a

concurrently filed opinion.

      1.     The district court did not abuse its discretion, see United States v.

Torralba–Mendia, 784 F.3d 652, 659 (9th Cir. 2015), by admitting evidence of the

corn piles over Obendorf’s objections. The corn-pile evidence was relevant to the

conspiracy charge and not unfairly prejudicial under Rule 403. Andrew Deboer

testified that he created the corn piles on his own initiative to “impress the boss”

after he was instructed to harvest the duck field in a manner designed to attract

ducks. Although the government’s theory of the case involved a more subtle form

of baiting, Obendorf is liable for the reasonably foreseeable criminal acts of his co-

conspirators in furtherance of the conspiracy. See United States v. Bingham, 653

F.3d 983, 997 (9th Cir. 2011). The district court instructed the jury that it could

consider Deboer’s testimony and the photograph of the corn piles only if the jury

found that there was a conspiracy to place bait, that Obendorf and Deboer were

members of the conspiracy, and that Deboer’s actions were within the scope of the

conspiracy and reasonably foreseeable to Obendorf. In light of the limiting

instruction that we presume the jury followed, see United States v. Mende, 43 F.3d

1298, 1302 (9th Cir. 1995), the district court did not abuse its discretion by




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concluding that the risk of unfair prejudice did not substantially outweigh the

probative value of the corn-pile evidence, see Fed. R. Evid. 403.

      2.     Obendorf’s sentence of 15 days of community confinement is not

substantively unreasonable. See United States v. Ressam, 679 F.3d 1069, 1088

(9th Cir. 2012) (en banc) (“[O]ur review of the substantive reasonableness of a

sentence is deferential and will provide relief only in rare cases.”). The U.S.

Sentencing Guidelines recommended a sentence between 18 and 24 months, and

the Guidelines themselves account for the need to avoid unwarranted disparities in

sentencing. See United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010).

The record reveals that the district court considered Obendorf’s circumstances and

the 18 U.S.C. § 3553(a) factors before pronouncing a sentence.

      The district court did not abuse its discretion when imposing the challenged

special conditions of Obendorf’s probation. See United States v. Bolinger, 940

F.2d 478, 480 (9th Cir. 1991) (“The sentencing judge has broad discretion in

setting probation conditions . . . .”). The three-year ban on obtaining hunting and

fishing licenses is reasonably related to Obendorf’s wildlife crimes and comports

with the limitations set forth in 18 U.S.C. § 3563(b). The same is true of the

prohibition on baiting or feeding waterfowl. Obendorf suggests this condition




                                          3
prevents him from farming, but we think it plain that the condition proscribes only

intentional feeding or baiting, whether direct or indirect.

      Finally, the $40,000 fine is not unreasonable. See United States v. Orlando,

553 F.3d 1235, 1239–40 (9th Cir. 2009). The amount of the fine corresponds to

the pre-sentence report’s estimate of the market value of the ducks taken. The

district court declined to enhance Obendorf’s sentence under U.S. Sentencing

Guideline § 2Q2.1(b)(3)(A)(ii) based on that figure because such an enhancement

would have increased Obendorf’s Total Offense Level by six points, and the

district court did not find the ducks’ value established by clear and convincing

evidence. See United States v. Gardenhire, 784 F.3d 1277, 1280 n.3 (9th Cir.

2015). However, we review the fine for reasonableness and fidelity to the factors

in 18 U.S.C. §§ 3553(a) and 3572(a)—not to determine whether it is supported by

clear and convincing evidence. See Orlando, 553 F.3d at 1239–40. Obendorf has

not shown that the fine is unreasonable.

      AFFIRMED.




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