U.S. v. Patterson
| Decision Date | 16 May 2002 |
| Docket Number | No. 00-30306.,00-30306. |
| Citation | 292 F.3d 615 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Toby C. PATTERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gerald R. Smith, Assistant Federal Public Defender, Spokane, WA, for defendant-appellant Toby C. Patterson.
Nancy C. Cook, Assistant United States Attorney, Coeur d'Alene, ID, for plaintiff-appellee United States of America.
Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, Chief District Judge, Presiding. D.C. No. CR-99-00081-EJL.
Before NOONAN, TASHIMA and TALLMAN, Circuit Judges.
Opinion by Judge RICHARD C. TALLMAN; Concurrence by Judge NOONAN; Dissent by Judge TASHIMA.
Toby C. Patterson appeals his conviction and 188 month sentence for manufacturing 100 or more marijuana plants in violation of 21 U.S.C. § 841. Patterson contends that the district court violated the double jeopardy clause by vacating his guilty plea after it had been accepted. Patterson further alleges that the district court erred in denying his motions to suppress and to exclude evidence regarding the number of marijuana plants, and in admitting expert testimony about the marijuana plants. Patterson claims that the district court erred when it failed to provide the jury with the option of basing its verdict on the weight of marijuana rather than on the number of plants. Patterson also argues that the evidence was insufficient to support the guilty verdict. Patterson urges us to hold that the career offender provisions of the Sentencing Guidelines and the mandatory minimum sentences of 21 U.S.C. § 841 violate the Eighth Amendment. Finally, Patterson asserts that the district court erred in denying his motion for a downward departure.
We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm Patterson's conviction and sentence on all grounds.
Detective Sergeant George Gow received information from a citizen named Calvin Stevens about marijuana growing on property near Stevens' home in rural Bonner County, Idaho. Stevens told Gow that, while out for a walk, he noticed the strong smell of marijuana near a mobile home and saw pots of marijuana in a gated trailer on the property. Stevens informed Gow that he was familiar with the look and smell of marijuana since he had been "introduced to marijuana" in the Army. Stevens also stated that there was a humming noise coming from the trailer and that the trailer's windows seemed to be covered with plywood.
Stevens later met with Sergeant Gow and showed him the property at issue, although he did not actually take Gow onto the property. Sergeant Gow saw the trailer and heard the humming noise described by Stevens, a sound which Gow believed came from halogen grow lights that Gow had heard at other marijuana grow operations. After hearing Sergeant Gow's testimony regarding his own observations, which corroborated the information provided by Stevens, a state magistrate judge found probable cause to issue a search warrant for the property.
Sergeant Gow and three other officers went to the property to execute the search warrant. They entered the trailer and found a number of marijuana plants growing in boxes inside. They pulled some of the smaller plants out of the boxes to take as evidence and cut some of the larger stalks that they were unable to remove. The officers videotaped this five-hour search and ultimately seized a total of 278 marijuana plants.
Patterson was indicted in August 1999 on one count of knowingly and intentionally manufacturing 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). After initially entering a plea of not guilty, Patterson entered into a plea agreement on April 11, 2000, in which he agreed to plead guilty to manufacturing marijuana. The plea agreement stated that "the number of marijuana plants is in dispute, and the Defendant stipulates to no facts which relate to the number of marijuana plants." The Plea Agreement further provided that this issue "will be litigated at sentencing," which was scheduled for July 10, 2000. The Plea Agreement also provided that "the Court has not made any commitment relating to the appropriate sentence in this case, and is not bound by this agreement." (emphasis in original).
The district court carefully conducted the Rule 11 colloquy when the plea was taken on April 4, 2000. The court reviewed the written provisions of the agreement with the defendant on the record and clarified the sole remaining issue in contention:
Subsequently, on June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum, must be submitted to a jury and proven beyond a reasonable doubt. Patterson filed various objections to the Pre Sentence Report ("PSR"). The government filed a response to Patterson's objections arguing, inter alia, that the guilty plea should be set aside as insufficient under Apprendi because Patterson was not informed of the number of marijuana plants at the time he pled guilty. At the July 10, 2000, hearing the district court agreed that the plea was invalid because the number of marijuana plants was not stipulated to by Patterson, nor found by a jury beyond a reasonable doubt. The court therefore vacated the guilty plea and scheduled a jury trial for September 2000.
Prior to trial, the district court denied Patterson's motions to suppress evidence, concluding that the search warrant was supported by probable cause. The court also denied Patterson's motion to exclude videotaped evidence regarding the number of plants, reasoning that Patterson was not unduly prejudiced by the police officers' failure to preserve the pots in which the plants grew. Finally, the court granted Patterson's unopposed motion to weigh the marijuana prior to trial.
The case proceeded to trial over Patterson's objection. The jury found Patterson guilty of manufacturing marijuana. It returned a Special Verdict announcing, "We find the Defendant, Toby C. Patterson, knowingly and intentionally manufactured the following quantity of marijuana: One-hundred (100) or more marijuana plants." The district court sentenced Patterson to a term of 188 months' imprisonment and five years' supervised release. Patterson timely appealed.
Patterson contends that because jeopardy attached when the court accepted his guilty plea, the double jeopardy clause was violated when the district court vacated his guilty plea and proceeded to trial. Double jeopardy claims are reviewed de novo. See United States v. Byrne, 203 F.3d 671, 673 (9th Cir.), cert. denied, 531 U.S. 1114, 121 S.Ct. 861, 148 L.Ed.2d 774 (2001). Whether the district court is required to enforce a plea agreement is a question of law we review de novo. See United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993). We conclude that because the court conditionally accepted Patterson's plea, jeopardy did not attach, and Patterson was not twice placed in jeopardy for the same offense.
The plea agreement in the instant case provided that the parties did not agree on the sentence, that the court made no commitment about the sentence, and that it was not bound by the agreement. The agreement also stated that the number of marijuana plants would be litigated at sentencing and that Patterson was aware of the varying penalties under 21 U.S.C. § 841(b)(1) for different quantities of plants.
Rule 11(c) of the Federal Rules of Criminal Procedure requires that the district court determine that the defendant understands "the nature of the charge to which the plea is offered" before the court accepts a guilty plea. Fed.R.Crim.P. 11(c). During the thorough Rule 11 colloquy, the district judge told Patterson that if, "after considering the presentence report and any other evidence that it might have that something other than what was being recommended should be imposed, the Court can do that." The court further stated that it had "not made any commitment relating to the appropriate sentence in this case and is not bound by the plea...
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