United States v. Toby C. Patterson

dissenting:

I respectfully dissent. The district court conducted a thorough plea colloquy, satisfying the requirements of Fed. R.Crim.P. 11, and unconditionally accepted Patterson’s plea of guilty. Jeopardy consequently attached. See United States v. Wong, 62 F.3d 1212, 1214 (9th Cir.1995) (citing United States v. Smith, 912 F.2d 322, 324 (9th Cir.1990), for the proposition that jeopardy attaches at the time the court accepts a guilty plea); accord United States v. Aliotta, 199 F.3d 78, 83 (2d Cir.1999) (stating that jeopardy generally attaches when the district court accepts the defendant’s guilty plea). Thus, the district *634 court did not have the authority to vacate the plea.

After finding that the plea was knowing and voluntary, and that there was a factual basis for each of the elements of the offense, the court accepted the plea, set the date for sentencing, and told Patterson about the Presentence Report (“PSR”) that was going to be prepared. The court found

The court then set the sentencing date and admonished Patterson to be truthful with the presentence investigator, reminding him that the court would “take everything into consideration right up to the day of…

Opinion by Judge RICHARD C. TALLMAN; Concurrence by Judge NOONAN; Dissent by Judge TASHIMA.

OPINION

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. §…

concurring:

The Fifth Amendment to the Constitution of the United States provides, inter alia: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The policy perceptible beneath this provision is the unfairness of the government making a person risk punishment again for the same offense after he or she has stood trial or its equivalent and escaped punishment. Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957). The amendment also protects against “a second prosecution for the same offense after conviction” and against “multiple punishments for the same. offense.” Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977). It constitutes “ ‘a constitutional policy of finality for the defendant’s benefit.’ ” Id., quoting United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971).

When Toby Patterson pleaded guilty to the crime of growing marijuana, he had not escaped punishment for growing 100 or more marijuana plants; rather, he was exposed to the risk that the court would so find; and the court presumably would have so found if a misreading of Apprendi had not led to…

292 F.3d 615 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 August 6, 2001. Filed May 16, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED 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. OPINION RICHARD C. TALLMAN, Circuit Judge. 1 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…