                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1816
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Sheldon Tree Top

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                      for the District of South Dakota - Pierre
                                   ____________

                           Submitted: February 14, 2019
                               Filed: July 26, 2019
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       In 2014, Sheldon Tree Top sold a single bald eagle feather to a confidential
informant for $50. A week later, he sold 63 eagle feathers and several hawk feathers
to the same informant for $80. Based on these purchases, the government charged
Tree Top with two counts of selling eagle feathers, in violation of the Bald and
Golden Eagle Protection Act, 16 U.S.C. § 668(a), and one count of knowingly
transporting, selling, or receiving protected birds, in violation of the Lacey Act, 16
U.S.C. §§ 3372(a)(1) and 3373(d)(2). Tree Top pleaded guilty to selling eagle
feathers; the Lacey Act count was dismissed. The district court sentenced him to six
months of imprisonment and one year of supervised release. It ordered, as a special
condition of supervision, that Tree Top pay $5,000 in restitution to the National Fish
and Wildlife Foundation. On appeal, Tree Top challenges the restitution order.

       Under 18 U.S.C. § 3583(d), a court may order restitution as a special condition
of supervision in accordance with the Victim and Witness Protection Act, 18 U.S.C.
§ 3663, and the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. See United
States v. Bertucci, 794 F.3d 925, 929 n.6 (8th Cir. 2015); see also United States v.
Batson, 608 F.3d 630, 634–36 (9th Cir. 2010). These statutes, in turn, require that a
restitution award be “limited to the victim’s provable actual loss,” which the
government must prove by a preponderance of the evidence. United States v.
Adejumo, 848 F.3d 868, 870 (8th Cir. 2017) (quoting United States v. Chalupnik, 514
F.3d 748, 754 (8th Cir. 2008)). We review the district court’s order of restitution, like
the imposition of any special condition of supervision, for abuse of discretion,
reviewing legal questions de novo and factual findings for clear error. See United
States v. Wilkins, 909 F.3d 915, 918 (8th Cir. 2018); United States v. Fonder, 719
F.3d 960, 961 (8th Cir. 2013).

       In settling on a loss amount of $5,000—an amount proposed by neither Tree
Top nor the government—the district court cited Bertucci, where we held that the
sentencing court erred in relying on an unreliable affidavit to determine the market
value of the birds rather than a valuation table that had been adopted by the sentencing
court “to establish the replacement values of various types of birds.” Bertucci, 794
F.3d at 928. Following Bertucci’s lead, the district court relied on its own standing
order on “forfeiture of collateral in lieu of appearance on cases of petty offenses,”
which includes a “bond schedule” listing the value of a whole or mounted bald or
golden eagle as “5K/10K.” Based on expert testimony that four of the feathers sold
by Tree Top must have been harvested from a dead juvenile eagle and the

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government’s representation that the “5K” notation in the bond schedule was for a
juvenile eagle, the district court found an actual loss amount of $5,000.

      But unlike Bertucci, where the defendant pleaded guilty to killing a bald eagle
and a rough-legged hawk, Tree Top was only convicted of selling eagle feathers.
“[D]istrict courts may only order restitution for the offense to which the defendants
have pled guilty, not for other charged or suspected conduct.” United States v.
Howard, 759 F.3d 886, 891 (8th Cir. 2014) (citing United States v. Reynolds, 432
F.3d 821, 823 (8th Cir. 2005), and relying on Hughey v. United States, 495 U.S. 411,
413 (1990)). As a result, based on the existing record, the actual loss caused by Tree
Top’s offense of conviction is limited to the amount of money that the government
expended to buy the eagle feathers.1

      As a result, we reverse the order of restitution and modify the judgment to
decrease the restitution amount to $130.2 Because the district court initially denied

      1
        Tree Top argues that the district court also erred in ordering restitution paid to
the National Fish and Wildlife Foundation because the Foundation is not a victim
under the restitution statutes. Tree Top did not raise this argument before the district
court, so we review for plain error. See United States v. Binkholder, 832 F.3d 923,
930 (8th Cir. 2016). We have “repeatedly affirmed restitution orders payable to
various government agencies.” United States v. Senty-Haugen, 449 F.3d 862, 865
(8th Cir. 2006). At sentencing, Tree Top conceded that the government was directly
and proximately harmed by his sale of eagle feathers and therefore would be the
proper recipient of the restitution award here. The government indicated that any
restitution that it received would be routed to the Foundation. But even though the
Foundation was established by federal law, it technically isn’t a government agency.
See 16 U.S.C. § 3701(a). Tree Top cites to no legal authority that makes the answer
to this question—whether a foundation established by federal law can properly be
awarded restitution—clear. As a result, any asserted error by the district court was not
plain. See Henderson v. United States, 568 U.S. 266, 278 (2013).
      2
      Tree Top concedes that $130 was the amount the government expended to
purchase the 64 eagle feathers.

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the government’s request to impose a fine based on the sizeable restitution award, we
remand for the limited purpose of giving the district court the opportunity to consider
in the first instance whether, based on the existing record, a fine is warranted in light
of the reduced restitution award.
                        ______________________________




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