United States v. Toby C. Patterson

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: 1 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…

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 *861 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…

concurring:

I concur only because I believe we are bound by our recent en banc decision in Ellis v. United, States Dist. Court, 356 F.3d 1198 (9th Cir.2004) (en banc), to conclude that the district judge accepted Patterson’s plea and that jeopardy attached at that point in time. Under United States v. Thomas, 355 F.3d 1191 (9th Cir.2004), and United States v. Banuelos, 322 F.3d 700 (9th Cir.2003), we must remand this case for resentencing based on an indeterminate amount of marijuana.

I write separately because of the unfortunate result our precedents dictate in this recidivist case. Unlike Thomas , in which the sentencing court failed to examine the facts supporting the quantity of drugs and instead borrowed the quantity alleged in the indictment, 355 F.3d at 1198-1202 , this is a case where both parties had a full opportunity to present evidence of drug quantity to a jury, which found a substantial amount of marijuana grown by the defendant beyond a reasonable doubt. Unlike Banuelos , in which the defendant did not waive his right to have a jury determine quantity, 322 F.3d at 703 , this is a case where the defendant knowingly and voluntarily pled guilty, fully expecting that…