U.S. v. Patterson, 00-30306.

• Decision Date: 20 August 2004
• Docket Number: No. 00-30306.,00-30306.
• Citation: 381 F.3d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Toby C. PATTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

381 F.3d 859

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

No. 00-30306.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 23, 2004.

Filed August 20, 2004.

Gerald R. Smith, Assistant Federal Public Defender, Spokane, WA, for the defendant-appellant.

Nancy D. Cook, Assistant United States Attorney, Coeur d'Alene, ID, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CR 99-0081 EJL.

Before NOONAN, TASHIMA, and TALLMAN, Circuit Judges.

TASHIMA, Circuit Judge:

Toby C. Patterson was convicted of one count of manufacturing marijuana in violation of 21 U.S.C. § 841 and sentenced to 188 months' imprisonment. In a prior opinion, we affirmed Patterson's sentence and conviction. United States v. Patterson, 292 F.3d 615 (9th Cir.2002). We held that jeopardy did not attach when the district court accepted Patterson's guilty plea and that the court accordingly did not err in vacating Patterson's plea and proceeding to trial over his objection. Id. at 622-25. We subsequently held en banc, however, that the district court does not have the authority to vacate a defendant's plea when the court has accepted the plea, but deferred a decision regarding whether to accept the plea agreement. Ellis v. United States Dist. Court, 356 F.3d 1198 (9th Cir.2004) (en banc). Because the en banc opinion in Ellis undercut the rationale of our prior opinion, we granted Patterson's petition for panel rehearing and withdrew our prior opinion. United States v. Patterson, 359 F.3d 1190 (9th Cir.2004). We now hold that the district court erred in vacating Patterson's guilty plea. We therefore vacate his sentence and remand with instructions to reinstate the original plea and sentence Patterson in accordance with that plea.

BACKGROUND

George Gow, a police officer with the Sandpoint City Police Department, in Idaho, received information from a citizen named Calvin Stevens about marijuana growing on property near Stevens' home. Stevens told Gow that, while out for a walk, he noticed a strong smell of marijuana near a mobile home and saw pots of marijuana in a gutted trailer on the property. Stevens also told Gow that he was familiar with the look and smell of marijuana because he had been "introduced" to it in the Army. Stevens further stated that there was a humming noise coming from the trailer and that the trailer's windows seemed to be covered with plywood.

Gow went with Stevens to look at the property, where Gow saw the trailer and heard the humming noise described by Stevens, a sound that Gow had heard at other marijuana grow operations coming from halogen grow lights. After considering Gow's testimony, a state magistrate determined that there was probable cause to search the property and so issued a search warrant.

Gow and three other officers went to the property to execute the search warrant, but there was no response when they knocked on the door of the mobile home. They entered the trailer and found a drying screen with bud marijuana drying on it. The officers also found a number of marijuana plants inside the home, growing in boxes estimated to be eight feet, by four feet, by five feet. 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 pull out. The officers videotaped the five-hour search and ultimately found a total of 278 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 in which he agreed to plead guilty to manufacturing marijuana. The plea agreement stated that the number of marijuana plants was in dispute and would "be litigated at sentencing," which was scheduled for July 10, 2000.

The district court carefully conducted the colloquy required by Rule 11 of the Federal Rules of Criminal Procedure when the plea was taken on April 4, 2000. The court reviewed the written provisions of the plea agreement and clarified the sole remaining issue in dispute:

THE COURT: Now, as counsel has pointed out and stated here in open court, the number of plants is in dispute, and the Court is going to have to resolve that on the time of sentencing, based upon the evidence as presented; that is in accordance with your understanding?

THE DEFENDANT: Yes, Your Honor.

* * *

THE COURT: [I]t is your position and your understanding that the Court has not made any commitment relating to the appropriate sentence in this case and is not bound by the plea negotiations?

THE DEFENDANT: Yes, I understand.

THE COURT: Because the number of plants has not been determined, neither this Court nor counsel nor anyone else could tell you what the sentence might be at this point?

THE DEFENDANT: Yes, I understand that, Your Honor.

THE COURT: It is my understanding that you do admit that you are responsible or guilty of manufacturing marijuana plants and that you are guilty of the elements of this particular charge as outlined by Mr. McHugh [the prosecutor], but that you remain silent or not admitting the number of marijuana plants; is that correct?

THE DEFENDANT: That is correct, Your Honor.

THE COURT: So again, other than not admitting to the number of marijuana plants, do you agree with the summary given by Mr. McHugh?

THE DEFENDANT: Yes, I do, Your Honor.

THE COURT: So you admit those facts and agree that those facts sustain each element of the charge with the exception of whether it be a class B, C or D felony, that will have to be determined once the Court determines the number of plants; right?

THE DEFENDANT: Yes, sir.

After finding that the plea was knowing and voluntary, and that there was a factual basis for each element of the offense, the court accepted the plea, set the date for sentencing, and told Patterson about preparation of the Presentence Report ("PSR"). While the court accepted the plea, therefore, it retained discretion to reject the plea agreement until after it had considered the PSR. The court admonished Patterson to be truthful with the probation officer preparing the PSR and reminded him that the court would "take everything into consideration right up to the day of sentencing."

Subsequently, on June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 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. Id. at 490, 120 S.Ct. 2348. Drug quantity is such a fact. United States v. Buckland, 289 F.3d 558, 568 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).

Patterson filed objections to the PSR on the same day that Apprendi was decided. On July 6, 2000, 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.

The jury found Patterson guilty of manufacturing 100 or more marijuana plants. The district court sentenced Patterson to a term of 188 months' imprisonment and five years' supervised release. Patterson filed a timely notice of appeal.

DISCUSSION

Patterson contends that the double jeopardy clause was violated when the district court vacated his guilty plea and proceeded to trial. "The Double Jeopardy Clause of the Fifth Amendment ... provides that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). It protects a defendant against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). Patterson's claim is predicated on the second of these three protections; he contends that jeopardy attached when the court accepted his guilty plea and that he accordingly could not be tried again for that same offense. Patterson further argues that his guilty plea should be reinstated and that he should be sentenced in accordance with that plea, which would be to a five-year maximum because he pled guilty to an unspecified amount of marijuana. We agree.

I.

Double jeopardy claims are subject to de novo review. United States v. Scarano, 76 F.3d 1471, 1474 (9th Cir.1996). Whether the district court is required to enforce a plea agreement is a question of law subject to de novo review. United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993). The adequacy of a Rule 11 plea hearing is also reviewed de novo. United States v. Seesing, 234 F.3d 456, 459 (9th Cir.2000).

II.

Rule 11 sets forth the procedures that the district court must follow in accepting a plea of guilty or nolo contendere.¹ The court must determine that the defendant understands his rights and the nature of the charge, that the plea is voluntary, and that there is a factual basis for the plea. Fed.R.Crim.P. 11(b). Rule 11(c) then describes the plea agreement procedure, setting forth three types of plea agreements. The defendant may agree to plead guilty in exchange for the government's agreement to (A) not bring or move to dismiss other charges, (B) make...