U.S. v. Patterson

• Decision Date: 06 May 2005
• Docket Number: No. 00-30306.,00-30306.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Toby C. PATTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

406 F.3d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Toby C. PATTERSON, Defendant-Appellant.

No. 00-30306.

United States Court of Appeals, Ninth Circuit.

May 6, 2005.

Nancy D. Cook, Esq., Office of the U.S. Attorney, Coeur d'Alene, ID, Alan G. Burrow, Esq., Office of the U.S. Attorney, Boise, ID, for Plaintiff-Appellee.

Gerald R. Smith, Esq., Federal Public Defender's Office, Spokane, WA, for Defendant-Appellant.

Before: NOONAN, TASHIMA, and TALLMAN, Circuit Judges.

ORDER: Dissent by Judge KOZINSKI; Dissent by Judge KLEINFELD.

ORDER

The panel has voted to deny the petition for panel rehearing, with Judge Tallman voting to grant it. Judge Tallman votes to grant the petition for rehearing en banc. Judges Noonan and Tashima recommend that the petition for rehearing en banc be denied. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

KOZINSKI, Circuit Judge, with whom Judges O'SCANNLAIN, BYBEE, CALLAHAN and BEA join, dissenting from denial of rehearing en banc:

The panel holds that the district court violated the Double Jeopardy Clause by vacating Patterson's guilty plea and trying his case to a jury. This conclusion conflicts with Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), and the law of two other circuits. It also gives Patterson an undeserved windfall by shaving more than 10 years off his sentence. By failing to take this case en banc, we leave intact a dubious opinion, and we pass up the opportunity to reconsider our position in a longstanding circuit split about when double jeopardy protections kick in after a guilty plea.

I

Patterson was arrested for manufacturing marijuana after the police found 278 pot plants in his trailer. In 1999, he was indicted for manufacturing 100 or more plants, but he pled guilty to manufacturing an unspecified number of plants—an offense that carries less time than being convicted of manufacturing 100 or more. His plea agreement stated that the actual number would "be litigated at sentencing." The plea colloquy envisioned that the district court would make this determination.

But the Supreme Court then decided, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum—including, in this case, the number of plants—must be submitted to a jury and proved beyond a reasonable doubt. The number of plants had not been admitted by Patterson, and, under Apprendi, the district court couldn't determine it. So the district court concluded that Patterson's plea was invalid and vacated it. Patterson was later tried, and a jury convicted him of manufacturing 100 or more marijuana plants.

Patterson appealed, arguing that the Double Jeopardy Clause prohibited the district court from vacating his guilty plea and forcing him to stand trial. Under the Double Jeopardy Clause, "once a defendant is placed in jeopardy for an offense... the defendant may neither be tried nor punished a second time for the same offense." Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). Its protections kick in, that is, only after the defendant has been placed in jeopardy—or, to use the technical expression, when jeopardy has attached. See Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Thus, the key question for the panel was whether jeopardy attached when Patterson pled guilty, so that his subsequent trial would amount to trying him a second time for the same offense.

The panel originally said it did not. It noted that, while "`[j]eopardy ordinarily attaches upon the court's acceptance of a plea agreement,' a guilty plea that is only conditionally accepted does not give rise to jeopardy." United States v. Patterson (Patterson I), 292 F.3d 615, 624 (9th Cir. 2002) (quoting United States v. Smith, 912 F.2d 322, 324 (9th Cir.1990)) (emphasis added) (alteration in original) (citation omitted). Relying on a line of cases saying that a plea is "impliedly contingent" on review of the Presentence Report, the panel held that Patterson's plea was conditional and thus jeopardy did not attach when the district court accepted it. Id. at 624-25.

After the panel's decision, we rejected the "impliedly contingent" doctrine in Ellis v. United States District Court, 356 F.3d 1198, 1205 (9th Cir.2004) (en banc). The panel here revised its opinion in light of Ellis. Its current opinion holds that, since the district court's acceptance of Patterson's plea was not conditional (Ellis), and since "[j]eopardy ordinarily attaches when the court accepts a plea of guilty," Patterson was protected by the Double Jeopardy Clause from the moment his plea was accepted. United States v. Patterson (Patterson II), 381 F.3d 859, 864-65 (9th Cir. 2004).

The panel's opinion thus gives Patterson a windfall: When Patterson pled guilty, he anticipated that the district court would determine the number of marijuana plants involved and would then impose a sentence based on that amount. He disputed the actual number, to be sure, but he recognized that the determination would be left to the district court; he understood that, if the district court found (as the jury ultimately did in his trial) that he manufactured 100 or more plants, his minimum sentence would be 188 months. After the panel's decision, Patterson must now be sentenced within the statutory range for manufacturing an indeterminate amount of marijuana. For this crime, he faces a statutory maximum of 60 months. As Judge Tallman notes in his concurrence, "[n]ot even Patterson himself could have contemplated this windfall when he pled guilty, fully expecting that the disputed quantity of marijuana would be determined at sentencing." Id. at 867 (Tallman, J., concurring).

II

The panel notes that the district court unconditionally accepted Patterson's guilty plea. It also notes that, under our caselaw, jeopardy ordinarily attaches when a guilty plea is unconditionally accepted.¹ It then leaps to the conclusion that jeopardy attached at the time of Patterson's plea. But there's the rub: The panel skips the logical step between generalizing about when jeopardy ordinarily attaches and specifically concluding that it attached in this case. This is a leap that is prohibited by Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

In Johnson, the defendant had been indicted on four counts, two of which were lesser included offenses of the other two, and had then pled guilty to the lesser offenses. For double jeopardy purposes, a lesser included offense is the same as the associated greater offense. See Brown v. Ohio, 432 U.S. 161, 166-68 & n. 6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). If jeopardy had attached when the defendant pled guilty to the lesser offenses, the Double Jeopardy Clause would have barred the state from prosecuting him on the two remaining charges.

However, the Supreme Court rejected this view. It emphasized that the Double Jeopardy Clause embodies two concepts, "principles of finality and prevention of prosecutorial overreaching," 467 U.S. at 501-02, 104 S.Ct. 2536, and that prosecuting the defendant for the greater offenses after he pled guilty to the lesser offenses would run afoul of neither principle. Thus, the Court held, the state could try the defendant on the remaining offenses, id. at 501, 104 S.Ct. 2536, which means that jeopardy did not attach when the trial court accepted defendant's guilty plea.

There are two important doctrinal points in Johnson. First, jeopardy does not always attach when the defendant enters a guilty plea; Johnson itself illustrates this point. Cf. id. at 500 n. 9, 104 S.Ct. 2536 ("[T]he taking of a guilty plea is not the same as an adjudication on the merits after full trial...."). Second, the Court provided a framework—which the Patterson II panel ignores—for determining whether jeopardy attaches when a defendant pleads guilty. A court must consider the twin aims of the Double Jeopardy Clause: protecting a defendant's finality interests and preventing prosecutorial overreaching.

The First and Third Circuits have applied this framework in concluding that jeopardy did not attach when, as here, the district court accepted a defendant's guilty plea and then vacated it in the same proceeding. In Gilmore v. Zimmerman, 793 F.2d 564 (3d Cir.1986), the defendant pled guilty to involuntary manslaughter, a lesser included offense of criminal homicide. The district court vacated the plea after rejecting the prosecutor's recommended sentence, and then forced the defendant to stand trial. Id. at 567. The Gilmore court recognized that Johnson had undermined its previous rule that jeopardy attached when the district court accepted a guilty plea:

Like Johnson ..., this case involves a single prosecution, not successive ones.... The fact that his plea was stricken obviously puts him in no better position than that of a defendant whose plea remains intact. These precedents teach that the interests protected by the Double Jeopardy Clause's prohibition against successive prosecutions for the same offense simply are not implicated in the situation currently before us.

....

Appellant relies most heavily on the following observation of the court in [United States v.] Jerry [,487 F.2d 600, 606 (3d Cir.1973) (holding that jeopardy attached when the guilty plea was accepted)]: ["]Jerry must be considered to have been convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him, and jeopardy therefore attached with the acceptance of his guilty plea by the district court.["] It is true that this statement, coming as it did in the...