United States v. Toby C. Patterson

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.

*1096 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…

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. 1 ORDER: Dissent by Judge KOZINSKI; Dissent by Judge KLEINFELD. ORDER 2 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. 3 The petition for panel rehearing and the petition for rehearing en banc are DENIED. 4 KOZINSKI, Circuit Judge, with whom Judges O'SCANNLAIN, BYBEE, CALLAHAN and BEA join, dissenting from…

dissenting from denial of rehearing en banc:

I respectfully dissent from denial of rehearing en banc.

The error that we need to correct was made, not by the panel in this case, but by our en banc decision in Ellis v. United States District Court. 1 The panel in this case correctly noted 2 that the Ellis en banc decision overturned the established *1102 circuit law, United States v. Cordova-Perez, 3 which had been followed by the three-judge panel in Ellis. While perhaps the panel should have read the Supreme Court’s decision in Ohio v. Johnson 4 as limiting the logic of Ellis, I think that the panel in the case at bar correctly read Ellis as taking us on a course that made such a limitation difficult.

Ellis, though, was wrong. In our en banc decision, we let a prosecutor and defendant bind a court to a second degree murder conviction. The district court had tried to vacate the plea because the pre-sentence report showed that the crime was a cold-blooded, premeditated, thrill killing — as clear a first degree murder as there could be. We rejected the district court’s decision based on a misreading of a Supreme Court decision that had reversed us in quite a different context,…

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 th.e 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.