*1 prohibited from soon find ourselves we will America, UNITED of patriotic songs many- of STATES
using our album Plaintiff-Appellee, public settings. “God Bless America” and gone “America the Beautiful” will be sure, and whüe use of the first three stan- Toby PATTERSON, C. Defendant- Spangled zas of “The Star Banner” will Appellant. permissible, precluded we wül be stffl be straying into fourth.8 And cur- from No. 00-30306. rency Judges accept beware! can those Appeals, United States Court of if limit they results themselves to elements Ninth Circuit. tests, faüing good whüe to look at the principles that sense and animated those Argued Aug. and Submitted 2001. But so at place. they tests the first do May Filed 2002. price removing vestige of the awe all must feel at the immenseness of the we it, place
universe and our own small within
as well as the wonder we must feel
good country. fortune of our That wiU
cool the febrile nerves of a few at the cost removing healthy glow conferred
upon many citizens when the forbidden
verses, uttered, read, phrases, are or
seen. short, accept I cannot eliding simple phrase “under God” from our Allegiance,
Pledge when is obvious tendency religion its establish country or to
this interfere with the free (or non-exercise) religion
exercise is de
minimis.9
Thus, I respectfully part concur in part.
dissent stray thing we Nor will be able to into the fourth as a de minimis constitutional violation. "My Country stanza of 'Tis of Thee” for that say tendency What I do is that the de minimis matter. Pledge religion to establish a or to interfere with its free exercise is no constitu- misunderstood, emphasize 9. Lest I be I must tional violation at all. necessary decide case this it is not say, say, and I do not that there is such a *5 Smith, R. Assistant Pub- Gerald Federal Defender, WA, Spokane, lic for defendant- appellant Toby C. Patterson. Cook,
Nancy C. Assistant United States d’Alene, ID, plaiptiff- for Attorney, Coeur of America. appellee United States I George Gow re- Sergeant Detective named from a citizen information ceived marijuana growing Calvin Stevens about home near rural property on Stevens’ NOONAN, and TASHIMA Before County, Stevens told Gow Bonner Idaho. TALLMAN, Judges. Circuit walk, that, he noticed the out for a while marijuana near a mobile strong smell of Judge C. Opinion by RICHARD marijuana gated in a pots home saw TALLMAN; by Judge Concurrence informed property. on the Stevens trailer NOONAN; by Judge TASHIMA. Dissent with the look that he was familiar Gow marijuana he had been “in- since smell OPINION marijuana” Army. in the Ste- troduced humming also stated there was vens TALLMAN, Circuit C. RICHARD that the coming from trailer and noise Judge. trailer’s, to be covered windows seemed appeals his conviction Toby C. plywood. with manufacturing 188 month sentence Sergeant later with Gow Stevens met marijuana plants in violation 100 or more issue, property him and showed Patterson contends 21 U.S.C. actually take onto although he did not Gow the double district court violated property. Sergeant Gow saw trail- vaсating guilty plea jeopardy clause noise humming heard the described er and *6 fur- accepted. Patterson after had been Stevens, by a which Gow believed sound erred in that the district court alleges ther lights that halogen grow from Gow came suppress and to to denying his .motions marijuana grow opera- at other had heard the number of regarding exclude evidence hearing Sergeant After Cow’s testi- tions. admitting expert in marijuana plants, and observations, mony regarding his own marijuana plants. testimony about provid- information corroborated the which the district court Patterson claims that Stevens, magistrate judge by ed state jury provide to when it erred failed probable to issue search found cause on the option basing its verdict with the for property. warrant marijuana than on the weight of rather argues also three other officers plants. Sergeant number of Patterson Gow and sup- to property insufficient to execute the search that the evidence was went to urges Patterson port guilty They trailer and verdict. warrant. entered provi- marijuana plants grow- offender us to hold that the career a number of found and the Sentencing They pulled of the Guidelines in some ing sions boxes inside. sentences of to take mandatory plаnts minimum smaller of the boxes out Eighth larger § Amend- of the U.S.C. 841 violate as evidence and cut some Finally, asserts to they ment. were unable remove. stalks denying in his motion this five-hour videotaped district court erred officers The a total of departure. ultimately a downward and seized for search marijuana plants. jurisdiction under 18 U.S.C. have We August in Patterson was indicted § and we af- and 28 U.S.C. knowingly and intentional- firip on one count of conviction and sentence marijuana or more ly manufacturing 100 grounds. on all 841(a)(1) §§ you in of 21 could tell plants might violation U.S.C. what the sentence (b)(1)(B). point? at this initially entering After be guilty, of not Patterson entered into Yes, THE DEFENDANT: I under- April on in plea agreement that, which stand Your Honor. agreed plead guilty manufacturing
he my THE It understanding COURT: marijuana. plea agreement The stated you you do admit that responsi- are marijuana plants that “the number of is in guilty ble or of manufacturing marijuana dispute, stipulates the Defendant no plants you guilty and that are of the facts which relate to the number of mari- particular elements of this charge as juana The plants.” Agreement Plea fur- outlined McHugh Mr. prosecu- [the provided that ther this issue “will be liti- tor], you remain but silent or not gated sentencing,” which was scheduled admitting marijuana the number of July Agreement 2000. The Plea plants; is that correct? provided also that “the Court has not correct, THE DEFENDANT: That is any relating made ap- commitment to the Your Honor. case,
propriate sentence this and is not again,.other THE COURT: So than not agreement.” (emphasis bound this admitting marijuana number original). plants, you agree summary do with given by Mr. McHugh? carefully district conducted Yes, do, I DEFENDANT: Your 11 colloquy the Rule when the .THE Honor. April taken on 2000. The court re- THE provisions agree- you
viewed the written COURT: So admit those facts agree ment that those facts with the defendant on the record and sustain each charge element of the remaining exception clarified the sole issue con- with the B, felony, .ofwhether it be a D tention: class C or that will have to determined be once Now, THE as counsel COURT: has plants; Court determines.the number of pointed open out and stated here in right? court, plants dispute, the number of *7 Yes, THE DEFENDANT: sir.
and going the Court is to have to resolve sentencing, that on the time of based 26, 2000, Subsequently, on June the United* upon presented; the evidence as that is Supreme States Apprendi Court decided your understanding? accordance with 466, 490, Jersey, New (2000), held which Yes, THE DEFENDANT: Your Honor. fact, conviction, any prior other than a ‡ ‡ ‡ ‡ ‡" ‡ that increases, penalty that the for a crime be- THE your position COURT: [I]t maximum, yоnd statutory the must sub- be your understanding that the has Court jury proven beyond mitted a a to any relating not made commitment. to doubt. reasonable Patterson filed various appropriate the sentence this case objections Report to the Pre Sentence by plea negotia- and is not bound the (“PSR”). government The filed a re- tions? objections sponse arguing, to Patterson’s Yes, THE I DEFENDANT: under- alia, guilty plea inter that the should be stand. Apprendi set as insufficient under aside THE not COURT: Because the number of because Patterson was informed determined, plants marijuana plants has not been of at the time he neither number July hearing, anyone pled guilty. this Court nor counsel nor else At the Cir.1993). conclude that be- We plea was agreed court the district Pat- conditionally accepted marijuana the court cause the number invalid because Patterson, attach, and by jeopardy did not plea, to terson’s stipulated not plants was beyond placed jeopardy a reasonable jury Patterson was not twice by nor found the therefore vacated The court offense. doubt. for the same jury trial for and scheduled guilty plea
September A trial, denied to the district court Prior evidence, in the instant case suppress plea agreement to The motions Patterson’s agree warrant was on concluding parties that the search did not provided that the court cause. The by probable sentence, com- supported that the court made no to exclude Patterson’s motion sentence, also denied it mitment about the number regarding videotaped evidence agreement. The was bound Patterson was not reasoning that plants, stated that the number agreement also officers’ police unduly prejudiced marijuana litigated be at sen- plants would pots in which the preserve failure was tencing and that Patterson aware Finally, granted the court plants grew. under 21 varying penalties U.S.C. weigh unopposed motion 841(b)(1) quantities of for different trial. marijuana prior to plants. Patter to trial proceeded The case over 11(c) of the Federal Rules Crim- Rule objection. jury found Patterson son’s requires that the district inal Procedure marijuana. It re manufacturing guilty of determine that the defendant under- court announcing, Special Verdict “We turned charge nature of the which stands “the Patterson, Defendant, Toby C. find the ac- is offered” before intentionally knowingly and manufactured 11(c). cepts guilty plea. Fed.R.Crim.P. marijuana: following quantity of One- colloquy, During thorough Rule (100) marijuana plants.” or more hundred if, “after judge told Patterson district to a court sentenced Patterson The district report and considering presentence imprisonment and five 188 months’ term of ; that, might it have that any other evidence release. time years’ supervised being than rec- something other what ly appealed. imposed, the should be Court
ommended
II
stated
can do
The court further
that.”
any
“not made
commitment
had
Patterson contends that because
appropriate sentence
this
relating to the
*8
accepted
jeopardy attached when the court
by
plea negotia-
case and
not bound
the
plea,
jeopardy clause
guilty
his
the double
finding
plea
that
the
was
tions.” After
when the district
vacat
was violated
court
voluntary,
that
knowing
and
there was
and
to trial.
guilty plea
proceeded
and
ed’
of
a factual
for each of the elements
basis
de
jeopardy claims are reviewed
Double
offense,
plea,
accepted
the court
the
the
Byrne,
novo. See United States
and
Pat-
sentencing,
told
set the date
denied,
671,
Cir.),
F.3d
cert.
pre-
that
to be
the PSR
terson about
1114,
861,
Pat-
Finally, the court reminded
pared.
the district
is re
Whether
everything into
it would “take
terson that
a
is a
plea agreement
to enforce
quired
right up
day
of sen-
consideration
we
de
See
question of law
review
novo.
tencing.”
Fagan,
”
sentencing
guilty
date ar-
verdict?’ United States v. Buck
Before Patterson’s
(9th Cir.2002)
land,
rived,
Appren-
decided
Supreme
Court
(en banc)
decision,
(emphasis in original) (citing Ap-
this
the district
light
In
of
di.
motion,
2348).
court,
prendi
chose
530 U.S. at
government’s
on the
in
plea
gave
regard
and
him The answer
to Patterson is
defendant’s
to vacate
plea
plainly
a new
no.
option
negotiating
of either
dis-
going
to trial. As the
agreement
Patterson’s reliance on
States v.
United
noted,
parties
proceeded
all
had
trict court
(9th Cir.2000),
Nordby,
jury, and sentenced. marijuana. unspecified to an amount оf Rather, by a they finding were based on a
The district court vacated Patterson’s
jury
guilty
that Patterson was
of manufac-
upon
government’s
under-
based
marijuana plants.
turing
100 or more
post-Apprendi argument
standable
drug quantity
was submitted
pled
Patterson had never
to a third “ele-
issue
ment,”
by jury beyond
a reasonable
marijuana
involved and decided
quantity
Thus,
conviction and
But as we have now clari-
doubt.
his offense.
fied,
fit
the rule enun-
squarely
the distinction be-
sentence
within
“Apprendi eschews
*9
Apprendi,
in
by
Supreme
the
Court
sentencing factors and elements of
ciated
tween
Nordby,
recently,
in
acknowledged
not of
inquiry
crime: ‘the
is one
relevant
Buckland.
form,
by
panel
our en banc
in
required
but
the
find-
clarified
of effect—does
Nordby
on the
extent that
relied
ing expose
greater pun-
the
to a
To the
defendant
sentencing factors and
jury’s
than
the
distinction between
ishment
that authorized
determination,
acceptance
court’s
of Patter-
it
The district
making its
elements
likewise condi-
guilty plea here was
son’s
See 277 F.3d
by Buckland.
was overruled
court told Patterson
tional. The district
at 1182.
if,
presentence
considering
“after
the
that
that
it
report
any
other evidence
B
other
than
something
have that
might
should be
being
what was
recommended
“[jjeopardy
that
it is truе
While
can do that.” The
imposed, the Court
accep
the court’s
ordinarily
upon
attaches
reject
plea
the
court retained discretion
agreement,” United States
tance of a
of information it
agreement on the basis
.(9th Cir.1990),
Smith,
or on the basis
gained from either the PSR
conditionally ac
that is
guilty plea
would
any other evidence that
indicate
give
jeopardy.
rise to
See
cepted does not
improper.
In
plea agreement
that the
was
Cordova-Perez,
had
deciding
plea agreement
that the
that
(9th Cir.1995);
also 21 AM.
see
not reflect the law as
been entered into did
Law 337
Criminal
JUR.2d
Supreme
Ap-
the
Court
enunciated
Cordova-Perez,
65 F.3d at
the
properly
court
exer-
prendi,
the district
guilty to a lesser related
pled
defendant
cised its discretion.
government’s
for the
exchange
offense in
anyone involved in
At no time did
these
of other
promise to move for dismissal
stipulate
quantity
that
proceedings
'
rejected
the
charges. The district
would determine the sentence Patterson
viewing the PSR on the
agreement after
that
ultimately faced.
it was true
While
adequate-
did not
agreement
basis
everyone
entry
plea expected
at
of the
of the defen-
ly reflect
the seriousness
to make that factual determination
judge
Id. at 1554.
dant’s offense behavior.
We
prejudice to Pat-
sentencing,
at
we see no
acceptance of
district court’s
held
having
jury
do it since
terson
later
“impliedly contingent”
guilty plea
was
changed in the interim. The
the law had
PSR,
upon
of the
its review
might
possibility that the court
set aside
to re-
court therefore retained discretion
guilty plea
governing
law
because
ject
based on information
subse-
“is a risk inherent
changed
has
from the PSR. See id.
quently learned
bargain a defendant makes when he
concluded that
the district
We
agrees
accep-
to the court’s conditional
acceptance
guilty plea
of the
was
Here,
court’s
accep-
guilty plea.
tance of his
rejected
conditional and therefore.
defen-
tance was conditional.” See Cordova-Per
claim,
ez,
Therefore,
jeopardy
jeopar-
jeopardy
since
dant’s double
1. The dissent are.unable justify why government jury judge should be allowed rather than the determination to bargain to hold Patterson to the when it is was less favorable to Patterson or more favor- government, renege favorable to the but when government. bargain never able to the However, arguments these rest on it is not. changed party Only to it. vis-a-vis either assumption the dissent's mistaken that Patter- identity changed of the decision-maker when growing pled guilty unspecified an son Supreme Apprendi. At all Court decided marijuana. quantity of That is not correct. times, higher Patterson was at risk for sen- agreed times that at all the sole plants tence if 100 or more were found to quantity to be decided contested issue him, regardless grown by of wheth- have been could be determined. before final sentence
625 Further, 1557; Sanchez, while we held that a dis 65 at have F.3d United States v. authority (5th Cir.1980). court is without to vacate an 761, trict 763 Accord- “unconditionally accepted” plea, see United ingly, there was no jeopardy double viola- Partida-Parra, 629, v. 631 States tion in this Vacating plea case.- in (9th Cir.1988), the conditional nature of the order to quantity submit the issue to the acceptance guilty plea court’s of the here jury was not error. this
distinguishes case from Partida-Par Cordova-Perez, ra. See also F.3d Ill (noting 1555 n. 5 that nature conditional of acceptance plea court’s оf the distin Patterson contends that the dis guished Cordova-Perez’s case from Parti- trict court erred in denying his motion to das-Parra). Thus, the district court did suppress the evidence found as a result of vacating not err in Patterson’s conditional the.search because the search warrant was plea Apprendi. in of light supported by probable cause. We re prohibition “The Amendment’s Fifth view the district court’s denial of a motion a against placing jeop defendant ‘twice in to suppress evidence seized a search de ardy” represents policy a constitutional of Murillo, novo. See United States v. finality for the defendant’s benefit in fed 1169, Cir.2001), F.3d cert. de proceedings.” eral criminal - nied, -, 1342, U.S. 122 S.Ct. Jorn, 547, 27 400 U.S. 91 S.Ct. (2002). L.Ed.2d 245 findings The factual (1971). policy L.Ed.2d 543 That has not underlying that decision are reviewed for been offended this case. Patterson has magistrate clear error. See id. The subjected not been harassment judge’s finding probable cause is there prosecutions successive no there is fore reviewed for clear error and is accord question multiple or multiple pun trials significant ed deference. See United judge clearly ishments. Because the stat Hay, States 634 n. n by plea ed that he was not bound — Cir.2000), denied, U.S. -, cert. agreement plea negotiatiоns, he had the (2001). S.Ct. L.Ed.2d 88 right plea light to vacate the change sentencing in the law of as to who In determining probable whether .quantity would make the determination supported cause issuance of search by proof and what standard of as enunciat case, warrant this we must determine by Supreme ed in Apprendi.2 Court whether there was substantial basis for magistrate’s finding acceptance probable
The court’s
cause.
Patter
Gates,
213, 239, 103
guilty plea
son’s
Illinois v.
jeop
was conditional and
See
Cordova-Perez,
ardy did not attach. See
magistrate’s decision,” totality id. given finding probable a cause. See We common-sense id. at denial See affirm the district court’s of the circumstances. therefore to is entitled magistrate suppress. S.Ct. 2317. to of Patterson’s motion enforcement officer’s rely upon the law evaluating when
training experience IV him in the de information related that because the Patterson contends cause. See United probable termination of (9th in Gil, government destroyed pots Cir. which F.3d States 1995). con- marijuana grew, which he claims n only evidence of whether stituted Patterson does not establish roots, plants had the district court erred finding proba- clearly erred in magistrate n denying his motion to exclude evidence the search warrant. On ble cause to issue marijuana plants. about the number circum- totality of the contrary, contends that the de- Patterson further finding probable a justified stances his “con- struction of the evidence violated in this case. cause un- right stitutional of access to evidence” that Stevens de- Sergeant testified Gow der the Due Process Clause. See United containing pots of gutted a trailer scribed (9th Belden, States v. and smellеd marijuana, that Stevens saw Cir.1992). marijuana property, and that Ste- on the coming from humming noise vens heard for an abuse of dis We review further Sergeant the trailer. Gow testified cretion the district court’s decision wheth while that his own observations for er to exclude evidence as sanction information, in- this property confirmed preserve evidence. destrojdng failing marijuana and the cluding the smell of at 674. court’s deter See id. The district noise, similar to what humming which was government’s fail mination of whether the marijuana opera- had at other Gow heard potentially exculpatory evi preserve ure to tions. process due dence violated defendant’s testified as to Sergeant Gow also rights is reviewed de novo. See United Gow experience. own law enforcement Cooper, States assigned he stated that had been . Cir.1993) eight and that he drug years task force for marijuana investigated had numerous A including serving growing operations, twenty-five such search warrants at over matter, As an initial reliability, Ser- operations. As to Stevens’ the roots of the contends without geant testified that he had known Gow plants, there is no evidence of the number eighteen years and that Ste- Stevens for plants, and so the evidence marijuana vens had been introduced marijuana weight. amount of is its Patter familiar with Army and was therefore argument require son’s on the based marijuana. appearance and smell of “readily ment that there must be observa for ble evidence of root formation” order circum totality of the Given the marijuana plant plant counted as a stances, to be deference at significant and the sentencing purposes. See United magistrate’s tached to the determination Robinson, cause, did not States v. probable magistrate Cir.1994). that the de- Sergeant Patterson asserts clearly determining err *12 pots containing clearly healthy struction of the the roots and viable. The district impossible has made to determine court also found that Patterson was not roots, plants whether or not the had and unduly prejudiced by the destruction of that, accordingly, there is no evidence of pots the containing the roots because he marijuana plants. the number of This as- had access to the video of the search and sertion erroneous. would have opportunity the to cross-exam- ine the officers who plants. counted the Sergeant Gow testified the See id. The court also noted that it was plants that he counted did have roots. state federal authorities who collected not Gow further testified about his training and stored the evidence. See id. Based experience in differentiating between facts, on these the district’s court decision stages different plant growth. spe He not to exclude evidence of the number of cifically stated that when he counted the marijuana plants was not an abuse of dis- in plants operation Patterson’s he did not cretion. The district court’s denial of Pat- any plants thought include that he did not terson’s motion to exclude is therefore af- addition, have roots. video firmed. provides search also sufficient evidence of marijuana plants the number of found. (cid:127)C Therefore, unpersua Patterson’s claim is Patterson also contends that sive that the proper evidence of the government’s preserve failure to the roots marijuana amount of in this case is its process violated his due rights. “[U]nless weight. criminal defendant can show bad faith on part police, of the preserve failure to
B
potentially useful evidence does not consti
argues
that because the
process
tute a denial of due
of law.” Ari
plants
preserved by
roots of the
were not
Youngblood,
zona v.
government,
the district court
erred
(1988);
S.Ct.
United
allowing
government
present
other
Rambo,
States v.
).
marijuana
evidence about the number of
Cir.1996
plants. Factors to be considered in deter
argued
Patterson has neither
nor
mining whether evidence should be exclud
presented any evidence that
the officers
ed as a sanction for government destruc
failing
preserve
acted
bad faith in
of,
tion
preserve,
or failure to
evidence are
“Indeed,
roots.
he
not
chal
does
even
quality
government’s
of the
conduct
lenge thd district
finding
court’s
degree
prejudice
and the
to the defen
government'did not act in
bad faith”
Belden,
dant. See
Y actually plants merely cuttings. were or that, although further stated argues that the district court Patterson marijuana Barney experience had no with admitting expert testimony by a erred in testify about the common plants, he did horticulturalist, Danny L. Bar- Professor Reasoning that plants. characteristics of ney, regarding plants whether the he saw Barney’s experience weight went to police in video had root formations. testimony than to its given be his rather argues that whether the video admissibility, court decided that marijuana plants roots on the showed jury decide whether would be con- jury determination. Patterson also Barney’s testimony was credible. as an Barney qualified was not tends marijuana. expert on B the district court’s de pro We review Federal Rule of Evidence 702 expert testimony for an cision to admit vides: of discretion. See United States
abuse
scientific, technical,
special-
If
or other
(9th
Alatorre,
1098,
222 F.3d
Cir.
trier
knowledge
ized
will assist the
2000);
Hankey,
or to
fact to understand the evidence
(9th
denied,
issue,
Cir.),
qual-
cert.
determine a fact
witness
skill,
expert by knowledge,
as an
ified
education,
training
may
or
experience,
given
the district court is
Because
opinion
an
testify thereto
the form of
deciding
whether to
broad discretion
or otherwise.
may
expert testimony,
ruling
its
be
admit
“manifestly
if
erroneous.”
reversed
expert testimony
determining
“In
whether
(internal
Hankey,
quota
becomes require expert a considerable amount of Patterson contends Here, testimony. See id. the issue before failing district court erred in to instruct jury marijuana plants was whether the jury option basing that it had the of its actually seized had roots so as to be classi- weight marijuana, of the verdict on “plants” sentencing purposes. fied as for plants, rather than on the number of and roots, plant actually a has Whether failing option to include that on the plant thus meets the definition of Jury are re verdict form. instructions sentencing purposes, question is a whose as a whole to determine whether viewed by expert determination could be aided they guide misleading inadequate are testimony presented botanical such as jury’s deliberation. See United States in this case. (9th Dixon, v. Cir. 2000). adequate Barney
Professor
testified that
Whether the instructions
ly presented
theory
the defendant’s
plants
Sergeant
Gow cut and counted
novo,
likely
systems
they
de
but if the in
most
had root
because
case
reviewed
fairly
adequately
covered
healthy, vigorous,
were
and did not show structions
offense,
if
“wilting
you
such as
would see
the elements of the
we review
signs
you
simply
cutting
“precise
and stuck
instructions’
formulation” for an
had
taken
(internal quotations
of discretion. Id.
distinguished
in into the soil.” He
those
abuse
omitted).
jury
mis-
plants
other
in the video that he
instruction
from
seen
Whether
plants
attributable
is mine the number
statutory
crime
the elements
states
Patterson,
weight.
Its
rather
than the
Vallejo, 237 F.3d at
See
de novo.
reviewed
give
option
to use a
them the
decision
not to
district court’s
decision
1024. The
weight
special
a defendant’s
on the
verdict
considering
form over
special verdiсt
of dis
for an abuse
an abuse of discre-
objection is reviewed
did not constitute
form
Reed, 147
States
affirmed.
See United
tion and is therefore
cretion.
Cir.1998).
VII
“knowingly
stipulated to
Patterson
marijuana.”
manufactur[ing]
intentionally
be
contends that
involves the
a defendant’s offense
When
evidence that
there was no reliable
cause
drug quantity marijuana, growing of
existed,
evidence was insuf
any plants
equivalency ratio
using the
determined
There is
the verdict.
ficient to support
Sentencing
§ 2D1.1 of the United States
support
a conviction
sufficient evidence
Guidelines,
on the number
is based
which
if,
light
most
the evidence
viewing
Wegner,
States
plants.3
See United
any rational
government,
favorable
Cir.1995)
(stating
the essential
of fact could have found
trier
establishes
sufficient evidence
that “[w]hen
beyond a
of the crime
reasonable
elements
*15
actually grew and was
defendant
Wright,
215
doubt. See United States
conviction
plants,
of live
then
possession
denied,
Cir.),
531
1020, 1025
cert.
based on evidence
sentencing can be
313
121 S.Ct.
148 L.Ed.2d
U.S.
is
drug quantity
The
plants”).
of live
plants regardless
of
based on
number
police video of the search and Ser-
The
actually
plants were
seized
of
whether
testimony
geant
constitute sufficient
Gov/s
Patterson’s
or not. See id. at 926-28.
-
jury
a rational
to find that
evidеnce for
har-
marijuana plants, not
offense involved
marijuana plants, and that
grew
Patterson
prop-
marijuana; he was therefore
vested
systems. Pat-
they
plants with root
were
of
according to the number
erly sentenced
that there was insufficient
terson’s claim
mari-
weight of the
plants rather than the
support
verdict has no
evidence to
juana.
merit.
district court de
Although the
theory present
clined
VIII
authority supports his
jury,
no
case to
argues
the career
accord
claim that he should be sentenced
§
provisions of 4B1.1 of the Unit
offender
marijuana,
rather
ing
weight
of
Sentencing Guidelines and the
ed States
plants.
See United
than the number
(9th mandatory
sentencing provisions
minimum
Mason,
States
process,
§
Cir.1990)
of 21 U.S.C.
841 violate due
is
(holding that
defendant
Eighth Amend
equal protection, and the
theory
jury instruction on
entitled to a
further contends that
ment. Patterson
theory
supported by
if
of defense his
between the treatment
disparity
in the evi
law and has some foundation
dence).
marijuana manufacturers and those who
jury instruc
The district court’s
marijuana is
jury
merely possess or distribute
correctly
to deter-
tion
directed
marihuana,
weight
the usable
commentary
§
actual
to 2D1.1 of the Sentenc-
2D1.1,
ing
greater.”
§
marihuana
"[flor
Guidelines states
U.S.S.G.
whichever
adoрted
plants)
'has
the Commission
background.
cmt.
(cid:127)
plant,
equivalency
grams per
or the
of 100
ratio,
equivalency
Eighth
Amendment and the Due Pro-
arbitrary, and
according to
pos-
him to be sentenced
cess Clause.
convicted of
requiring
Carr was
marijuana plants, is irra-
number of
intent
session with
distribute 66.92
constitutionality of a sentence
tional. The
grams of cocaine
Because of two
base.
States v.
is reviewed de novo. See United
prior felony controlled substance convic-
Cir.
Reyes-Pacheco,
tions,
pur-
Carr’s sentence was enhanced
§
2001).
suant to
4B1.1 to 262 months. Since the
defendant’s sentence was less severe rela-
determining
whether
sen
tive to his offenses than other sentences
Amendment,
Eighth
violates the
we
tence
Court,
upheld by
Supreme
held
we
leg
“substantial deference” to
must accord
Eighth
challenge
that an
Amendment
appropriate pun
islative determinations of
by Supreme
his sentence was foreclosed
Michigan,
Harmelin v.
ishments. See
Further,
precedent.
Court
See id.
we
957, 998-99,
S.Ct.
rejected the defendant’s contention that
(1991)
Helm,
(citing
L.Ed.2d 836
Solem v.
§
process;
4B1.1 violates due
See id.
277, 290,
3001, 77
(1983)).
Eighth
Although
L.Ed.2d 637
application
Patterson’s claim that
pro
require
Amendment does not
“strict
provisions
the career offender
sentence,”
portionality between crime and
arbitrary
4B1.1
his case resulted in an
... extreme sentences that are
“forbids
disproportionate
must like
sentence
disproportionate’ to the crime.”
‘grossly
rejected.
“Generally,
long
wise be
as
as
Harmelin,
501 U.S. at
S.Ct.
imposed
the sentence
on defendant does
Solem,
(citing
463 U.S. at
limits,
statutory
not exceed
this court will
3001).
Eighth
not overturn it on
Amendment
*16
Parker,
grounds.”
A
(9th Cir.2001).
1114, 1117
F.3d
applica
contends that
Patterson
provisions
tion of the career offender
Nevertheless,
we evaluate
§
Sentencing
4B1.1 of the
Guidelines to his
constitutionality of the sentence under the
case,4 resulting
sentencing
in an increased
Eighth
by considering
Amendment
three
range,
process, equal protec
violates due
(1)
gravity
factors:
of the offense and
tion,
Eighth
and the
Amendment.
(2)
penalty,
harshness of the
the sentences
Carr,
imposed
In
oh other criminals
the same
United States v.
(3)
(9th Cir.1995),
jurisdiction,
imposed
the defendant claimed that
the sentences
§
in a
for
of the sanie crime in other
application of
4B1.1 resulted
sen-
commission
Solem,
disproportionate
jurisdictions.
See
463 U.S. at
grossly
tence
seri-
offenses,
the circumstances
prior
violating
ousness of his
thus
imprisonment for
B
minimum of his
marijuana plants, the
more
claims
rejecting Eighth
Amendment
to 235
range
sentеncing guideline
n
mini
mandatory consecutive
Further,
regarding
the 188-month sentence
months.
statutory
imposed
maximum
under 18 U.S.C.
mum sentences
was well within
him,
years.
924(c),
See 21 U.S.C.
“[generally,
§
stated that
applicable to
we have
841(b)(1)(B).
gravity of
Considering the
§
imposed on
de
long
as
as the sentence
case, manufacturing 100
in this
limits,
the offense
statutory
fendant does not exceed
and the fact
marijuana plants,
or more
Eighth
it on
this court will not overturn
was both at the
penalty imposed
Parker, 241
grounds.”
Amendment
range and well
minimum of the Guideline
at 1117. Patterson’s sentence is within
maximum,
cannot
statutory
we
below the
mandatory
statutory limits of
whose
“grossly
say that Patterson’s sentence
upheld
long
minimum sentences have
been
to his crime.
disproportionate”
Eighth
challenges.
Amendment
against
Kidder,
See,
e.g., United States
Further,
crimes “classified and
(9th Cir.1989). Moreover,
1328, 1334-34
felonies[,] ...
length
classifiable as
“grossly
was not so
Patterson’s sentence
actually imposed
purely
the sentence
crime so as to
disproportionate” to the
Rum
legislative prerogative.”
matter of
Eighth
violate the
Amendment.
See
Estelle, 445
100 S.Ct.
mel v.
U.S.
Harmelin,
501 U.S. at
(1980); Harmelin,
1133,
logical judgment
as
C
province
legisla
properly
within
(internal
courts”)
tures,
quotations
disparity
сhallenges
*17
omitted).
why
marijuana
is no reason
growers
There
for
between sentences
sentences for
legislature’s determination of
marijuana distributors and to the
committed
career offenders
rejected
felonies
also been
equivalency ratio have
less deference here
Belden,
should be accorded
We merely possess the pared to those who § challenge 4B1.1. This court has re to Wegner, 46 product”); harvested see also peatedly determined that Guidelines ver- (addressing pre-1995 F.3d at 926 sentencing unduly do not limit court’s the. n Guidelines, noting that Con- sion of the a defendant’s discretion to individualize regard to 2D1.1was to gress’ intent with sentence, not violate substan and thus do marijuana of See, “punish the manufacture process. e.g., or due procedural tive (9th severely”). challenges Patterson’s more Brady, F.2d 538 States v. 895 United Jones, are there- Cir.1990); Eighth under the Amendment v. United States Carr, 929, Cir.1990); 56 F.3d fore without merit. protects against prosecution IX “a second for the same after conviction” and offense contends that Patterson against “multiple punishments for adequately not consider court did district Ohio, same. offense.” Brown v. a dis departure. for Unless his motions depart refusal to downward trict court’s “ (1977). It constitutes ‘a constitutional lacks conclusion that on its based policy finality of for the bene defendant’s dis authority depart, a district court’s to ” Id., Jorn, quoting fit.’ cretionary depart refusal to downward 27 L.Ed.2d Sentencing is not re from the Guidelines States v. appeal. viewable on See United Cir.2001). Tam, Toby pleaded guilty When adequately a district court has Whether growing marijuana, the crime of he had for a sentence is stated the reasons escaped punishment growing and is reviewed dé novo. question of law rather, marijuana plants; or more he was Upshaw, See United States exposed to the risk that the court would so (9th Cir.1990). find; presumably and the court would misreading Apprendi have so found if a of clearly in this ease The record rejection had not led to and a district court’s refusal to indicates that the Patterson, jury finding Toby the number. depart from the Guidelines was not based therefore, jeopardy was not twice put that it lacked the authori on its conclusion life, limbs, any period definite Rather, ty depart. it was based on its subjected incarceration. He has not been history investigation of Patterson’s as own mul- prosecution punished to a second nor PSR, findings well as on the which the. tiple times for the same offense or de- Thus, adopted as its own. on finality prived any assurance of as to may not review the district appeal we I, there- punishment what his would be. discretionary depart court’s refusal fore, and in the concur his sentence from the Guidelines. downward parts Judge opinion. Tallman’s other X TÁSHIMA, Judge, dissenting: Circuit conviction and sentence áre
Patterson’s AFFIRMED. respectfully I dissent. The district thorough plea colloquy, court conducted
NOONAN, Judge, concurring: Circuit satisfying requirements of Fed. unconditionally accepted The Fifth Amendment to the Constitu- R.Crim.P. Jeopardy guilty. con provides, tion of the States inter United *18 subject v. any person sequently attached. See United States alia: “nor shall be (9th Cir.1995) 1212, jeopar- Wong, 62 F.3d 1214 put offense to be twice the same Smith, v. 912 F.2d policy perceptible (citing United States dy of life or limb.” The 322, Cir.1990), proposition for the is unfairness of 324 provision beneath this the the time the person pun- jeopardy risk that attaches government making the guilty plea); accord United accepts offense after court again ishment for the same (2d Aliotta, 78, Cir. v. 199 F.3d 83 equivalent trial or its States he or she has stood 1999) jeopardy generally at (stating v. that escaped punishment. and Green United States, 184, 187, 221, accepts district court the 2 taches when the 355 78 S.Ct. Thus, plea). the district guilty also defendant’s L.Ed.2d 199 The amendment 634 pressure. respects, or In all authority by to vacate coercion not have the
court did therefore, 11 requirements the of Rule plea. satisfied, plea validly were and the was knowing plea was finding After that (find id. at 977 by accepted the court. Cf. was a factual voluntary, and that there and right appeal knowing of the ing a waiver the elements of the of- for each of basis voluntary the district court and where en fense, plea, set the accepted gaged colloquy” in an “extended with the sentencing, and told Patterson date for Grant, defendant); United States v. (“PSR”) Report the Presentence about (5th Cir.1997) 788, (rejecting F.3d prepared. The court going that was be contention that he should be defendant’s found guilty plea be allowed withdraw fully cognizant is and that Mr. Patterson meticulously “the district court satis cause capable entering plea, an informed he of 11”). obligations Rule The fied its under of has been made aware of the nature sentencing made no rec plea agreement the elements that make the offеnse and ommendation, unusual and but this is not up charge, that as well as what specifically by authorized Rule would be to es- Government’s evidence Fine, 11(e)(1)(A). See United States v. guilt charge to this of manu- tablish his (en banc) (9th Cir.1992) (not- 596, F.2d marijuana. facturing The Court further ing plea pursuant to Rule plea guilty of has been finds that 11(e)(1)(A), government and that ac knowingly voluntarily, and entered cordingly promised to dismiss some guilt, of is an by his admission there counts, a specific not to recommend sen independent containing basis in fact Gilliam, v. tence); United States each of the essential elements of the (7th Cir.2001) (plea agreement offense. sentences, minimum and maximum noted therefore, Court, going The to ac- noted that the final determination re but cept plea guilty the Defendant’s of garding the would determined sentence be judgment guilt enter a thereon. court). subsequent acceptance sentencing then set the date and The court rejection plea agreement does not to be truthful with admonished Patterson See validly accepted plea. invalidate the presentence investigator, reminding Hyde, States United everything him that the court “take would (1997) right up day into consideration (“Guilty pleas accepted plea can be while sentencing.” Id. at 20. deferred, agreements accep are and the “The record demonstrates the dis- separated two can tance be accept- 11 in complied trict court with Rule Ewing, time.”); United States v. ing” plea. (4th Cir.1992) (noting Aguilar-Muniz, position flaw the defendant’s was “its Cir.1998). required by As Rule acknowledge failure to the distinction be Aguilar-Muniz, similar to the court ad- guilty plea agree tween a and a vised of the nature of the ment”). him, charges against the minimum and “ fully one penalties, rights guilty maximum and the Patter- entered ‘[A] *19 See id. at 976-77. The up. ... giving consequences son was aware of the direct must (or prom- by court also determined that there was a stand unless induced threats harassment), improper plea plea factual basis for the and that the ises to discontinue voluntary, misrepresentation (including unfulfilled or knowing was not obtained
635
decided,
tity.
Apprendi
After
was
the de-
by-
perhaps
promises),
unfulfillable
colloquy
that the Rule 11
improp
argued
nature
fendants
by their
that are
promises
relationship to the
the district court
proper
was insufficient because
having no
er as
”
bribes).’
(e.g.,
business
not inform them of all of the elements
prosecutor’s
did
1108,
Kaczynski,
offense,
guilty pleas
States v.
and that their
United
Cir.2001)
Brady v.
(quoting
1114
the threat of a harsher
were induced
755,
States,
742,
90 S.Ct.
397 U.S.
permissible
United
punishment
than was
under
(1970)) (alterаtion in
1463,
747
25 L.Ed.2d
that,
indictment. The court reasoned
—
denied,
-,
U.S.
original), cert.
Apprendi reduced the maxi-
though
even
(2002); In
1309,
152 L.Ed.2d
122 S.Ct.
possible penalty
mum
the defendants
rejected the
Supreme Court
Brady,
faced,
requirement
‘no
in the
“there is
intervening
contention
defendant’s
per-
must be
Constitution that a defendant
plea involun
guilty
rendered his
caselaw
admissions in
mitted to disown
solemn
plea
held that
tary. The Court
open court that he committed the act with
“because,
judicial
although later
intelligent
charged simply
he is
because it later
which
at the time of his
indicated that
decisions
penalty
...
develops that
the maximum
every
correctly assess
he ‘did not
plea
applicable
then assumed
has been held
decision,’
into his
entering
factor
relevant
judicial
inapplicable
subsequent
deci-
counsel, was
by competent
he was advised
Brady,
(quoting
Id.
397 U.S. at
sions.’”
faculties,
‘was
in control of his mental
1463) (alteration
757,
origi-
in the
90 S.Ct.
charge
nature of the
aware of the
made
nal).
pleas
Their
therefore were still valid
”
States,
Bousley
him.’
v. United
against
plea colloquies sufficient. Id.
and the
1604,
523 U.S.
Sánchez,
plea
was vol-
As
(1998)
Brady,
(quoting
L.Ed.2d 828
in the
untarily
“intelligently
made
1463) (citations
756-57,
at
90 S.Ct.
U.S.
Brady,
applicable
of the then
law.”
light
omitted).
fact,
misrepresenta-
In
“absent
major-
The
at
637
conclusion
Not
is Cordova-Perez’s
at
117
Hyde,
pleas. See
it
also incon-
suspect
Hyde,
is
because
1630.
S.Ct.
sistent with our decision Partida-Parra.
reversed
Supreme Court
Hyde, the
In
Partida-Parra,
government mistak-
the
had an
the defendant
our conclusion
plead
to
enly permitted the defendant
guilty plea
his
right to withdraw
absolute
than a
guilty to a misdemeanor rather
plea
accepted the
court
the district
before
set
felony
subsequently
moved to
1630.
Id. at
agreement.
plea,
already
which had
guilty
aside the
accepted
guilty
the
court had
The district
accepted by the district court.
been
on whether
decision
plea,
deferred
but
granted the motion and
district court
set
until the PSR
agreement
accept
plea
the
noted,
jury
for
trial.
howev-
the case
We
sentencing, the de
Before
prepared.
er,
authority un-
that “the district court’s
guilty plea,
to withdraw his
sought
guilty
fendant
an accepted
the Rules to revisit
der
the motion
court denied
but the district
The district court
plea is limited.” Id.
reason,
just
a fair and
provide
plea
questions
a
if
about the
may
failure
vacate
32(e). The Su
plea subsequently
to Fed.R.Crim.P.
for the
pursuant
factual basis
that, although
arise,
fair and
if the defendant shows a
reasoned
preme Court
reason,
just
if a fraud was committed
guilty plea and
“[t]he
true that
might be
dis
court.
Id. at 631-33. The
up togeth
upon the
are ‘bound
plea agreement
the
”
accordingly did not have author
trict court
(quoting
er,’
1630
id. at
S.Ct.
Rules or un
ity under either the Federal
Cordova-Perez,
1556),
guilty
at
the
plea agreements
der the “сommon law”
agree
plea
while the
plea
accepted
can be
3, 633-34;
Id. at 632 n.
plea.
to vacate the
674, 117
1630;
deferred, id. at
S.Ct.
ment is
Fagan,
F.2d
see also United States
guilty
nowhere state
“the Rules
(9th Cir.1993)
that,
(asserting
must be
plea agreement
the
plea and
guilty
a
accepts
court
“once the district
677, 117
id. at
S.Ct.
identically,”
treated
plea
fraud or breach of
plea, absent
that, once
therefore held
The Court
1630.
defendant, the court
by the
has
agreement
agree
plea
if the
accepted, even
plea
a
is
guilty plea
be
authority
vacate
no
32(e)’s
deferred,
requirement
Rule
ment
-
asserting
government motion
cause of a
just
a fair and
show
the defendant
(on
govern
fact
[the
a mistake of
‘that
Id.
plea applies.
to withdraw
reason
of a
prevented the formation
part)
ment’s]
677-80, 117
1630.
at
”)
Partida-
binding agreement’
(quoting
require-
Hyde focused on
Although
633) (alteration in
Parra,
32(e),
import of its
ments of Rule
Fleming,
States v.
original);
United
cf.
the court has ac-
clear—once
holding is
Cir.2001) (“When
F.3d
if it has deferred
plea,
a
even
cepted guilty
voluntary
knowing
a
with
presented
in order
plea agreement
acceptance
options
district court’s
agreement, a
plea
PSR,
may
defendant
to review the
Further,
a court ac
once
are limited....
showing a fair
plea only by
withdraw
‘it is bound
cepts plea agreement,
ability
just
”)
If the defendant’s
reason.
v. Man
States
bargain.’
(quoting United
limited,
Cir.1990));
fortiori,
plea
dell,
to withdraw
(stating
be at least
ability should
ly accepted
plea.
as Patterson
"
3. The statute that
proof
Patterson violated is 21
of a fact which the other does not.’
841(a).
Brown,
§
U.S.C.
The offense that is the lesser
(quot-