United States v. Toby C. Patterson

review, and remand for the BIA to consid- BROWNING, Before REINHARDT, er competent whether counsel would TALLMAN, Judges. Circuit otherwise, and, so, acted if to consider under the correct standard peti- OPINION thereby prejudiced. tioners were PER CURIAM: PETITION FOR GRANT- REVIEW Pursuant to the Supreme Court’s deci ED; REMANDED. case, sion in this United States v. Domin — Benitez,

guez 03-167, No. -, U.S. (2004), 124 S.Ct. 2333 overruling our deci sion, Benitez, United States v. (9th Cir.2002), we now ap AFFIRM pellant Carlos Dominguez Benitez’s convic tion. Our decision does not affect Beni right tez’s petition to file a for habeаs corpus pursuant to 28 U.S.C. 2255. America, UNITED STATES of Plaintiff-Appellee,

v. BENITEZ,

Carlos DOMINGUEZ aka Dominguez, Carlos Defendant- America, UNITED STATES of Appellant. Plaintiff-Appellee,

No. 00-50181. Toby United States Court of PATTERSON, Appeals, C. Defendant- Ninth Appellant. Circuit. No. 00-30306.

Aug. 2004. United Appeals, States Court of Mossman, Myra Barbara, CA, D. Santa Ninth Circuit. for defendant-appellant Carlos Dominguez Argued Submitted March Benitez. 2004. Aug. Filed Alejandro Mayorkas, N.

Attorney, Luege, Carmen R. Assistant ‍​‌‌‌​​​​​‌​​‌​‌​‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌​​​​‌‍Attorney, Ana, CA, Santa Smith, Pub- Assistant Federal

Gerald R. WA, Defender, for the defеn- Spokane, lic dant-appellant. Cook,

Nancy D. Assistant United States d’Alene, ID, plain- Attorney, Coeur tiff-appellee. TASHIMA, NOONAN,

Before TALLMAN, Judges. Circuit TASHIMA, Judge: Circuit convicted of one Toby C. Patterson was marijuana in viola- manufacturing count of and sentenced to tion of 21 U.S.C. prior In a imprisonment. months’ affirmed Patterson’s sentence opinion, we Patter- States v. and conviction. United Cir.2002). (9th son, We held attach did not Patterson’s accepted district court accordingly did not рlea and that the vacating pro- Patterson’s err objection. Id. at ceeding to trial over his banc, held en subsequently 622-25. We however, court does not that the district vacate a defendant’s authority have the plea when the court has regarding deferred a decision Ellis v. accept plea agreement. Court, F.3d 1198 Dist. Cir.2004) (en banc). (9th Because the en undercut the ratio- opinion Ellis banc Pat- prior opinion, granted our we nale of rehearing and petition panel terson’s prior opinion. withdrew Patterson, Cir.2004). 359 F.3d 1190 evidence and cut some of the larger stalks now hold that they We the district court erred were pull unable to out. The in vacating guilty plea. We officers videotaped the five-hour search therefore vacate his sentence and remand ultimately found a total of plants. with instructions to original reinstate the Patterson was indicted in August 1999 plea and sentence in accordance on one count knowingly of and intentional- plea. with that ly manufacturing 100 or marijuana more plants, 841(a)(1) in violation of 21 U.S.C. BACKGROUND (b)(1)(B). and initially After entering a Gow, George police a officer with the guilty, of not Patterson entered into a Sandpoint City Police Department, in Ida- plea agreement in which agreed he ho, received information from a citizen plead guilty to manufacturing marijuana. named marijuana Calvin Stevens about plea agreement stated that the num- growing property on near Stevens’ home. marijuana ber of plants in dispute was that, Stevens told Gow out for a while would litigated “be at sentencing,” which walk, he noticed a strong marijua- smell of 10, July scheduled for 2000. na near a mobile home and pots saw of The district carefully conducted marijuana in gutted a trailer on prop- colloquy required by erty. Stevens also that told Gow he was Federal of Rules Criminal Procedure when familiar with the look and smell of mari- April was taken on 2000. The juana because he had been “introduced” to court reviewed the provisions written it in Army. Stevens further stated that the plea agreement and clarified the sole there a humming noise coming from in remaining dispute: issue the trailer and that the trailer’s windows Now, THE COURT: as counsel has plywood. seemed be covered with pointed out and stated in open here Gow went with Stevens to look at the court, plants the number of dispute, is in property, where Gow saw the trailer and and the going Court is to have to resolve heard the humming noise described that on the time of sentencing, based Stevens, a sound that Gow had heard at upon presented; the evidence as that is marijuana other grow operations coming your accordance with understanding? from halogen grow lights. After consider- Yes, THE DEFENDANT: Your Honor. testimony, Gow’s magistrate a state * * * determined that there probable cause THE your position

to search COURT: is property [I]t and so issued a your undеrstanding search warrant. that the Court has any not made relating commitment Gow and three other officers went to the appropriate sentence in this case property to warrant, execute ‍​‌‌‌​​​​​‌​​‌​‌​‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌​​​​‌‍the search plea negotia- bound response but there was no they tions? knocked on the door of the mobile home. Yes, THE I under- .DEFENDANT: They entered the dry- trailer and found a stand. ing screen with marijuana bud drying on

it. The officers also found a number of THE COURT: Because the number marijuana home, plants inside the growing determined, plants has not been neither feet, eight boxes estimated to be by four this anyone Court nor counsel nor else feet, by They pulled five feet. you some could tell might what the sentence plants smaller out of the boxes to take as point? be this fact, prior con other than any Yes, held that I under- THE DEFENDANT: viction, penalty increases Honor. Your stand maximum, statutory beyond crime understanding my It is THE COURT: proven to a must be submitted responsi- you are do admit you Id. at beyond a reasonable doubt. marijuana manufacturing or ble is such Drug quantity S.Ct. guilty of you are plants Buckland, 289 fact. as charge particular elements denied, (9th Cir.) (en banc), cert. McHugh prosecu- [the by Mr. outlined 152 L.Ed.2d 122 S.Ct. silent or U.S. you remain tor], (2002). marijuana number admitting the that correct? plants; is the PSR on objections to filed Patterson correct, That is DEFENDANT: THE Apprendi was decided. day that the same Your Honor. 2000, filed a 6, the July On other than again, So THE COURT: objections, argu- tо Patterson’s response marijuana number of to the admitting alia, guilty plea should that the ing, inter summary the with you agree plants, do Apprendi under as insufficient set aside be McHugh? by Mr. given the informed of was not Patterson because Yes, do, I Your THE DEFENDANT: at the time he marijuana plants number of Honor. 2000, 10, July hearing, At the pled guilty. facts you admit those So THE COURT: agreed the district facts each that those sustain agree marijuana the invalid because number exception the charge the with element of Patterson, to stipulated was not plants B, felony, D a class C or it of whether be a reasonable jury beyond a nor found the once be determined that will to vacated The court therefore doubt. plants; the number of determines Court jury trial for a and scheduled guilty plea right? September Yes, sir. THE DEFENDANT: of man- guilty found Patterson knowing finding After marijuana plants. 100 or more ufacturing factual voluntary, that there a a Patterson to court sentenced The district offense, the for еach element basis and five imprisonment 188 months’ term of for set the plea, date accepted Patterson filed years’ supervised release. prep- Patterson about sentencing, and told appeal. notice of timely Report Presentence aration (“PSR”). accepted the the court While DISCUSSION therefore, it retained discretion plea, it had until reject after jeop contends the double Patterson admon- The court the PSR. considered the district ardy clause was violated truthful to be with ished Patterson guilty plea proceed court vacated his preparing officer PSR probation Jeopardy Clause “The Double ed trial. court would “take him reminded provides ... Amendment of the Fifth right up to consideration everything into subject for the ‘be same person no shall day sentencing.” jeopardy life put to be twice offence ” 161, Ohio, 432 U.S. 26, 2000, Brown v. or limb.’ on June Subsequently, (1977). 53 L.Ed.2d 187 Ap S.Ct. Court decided Supreme (1) a sec аgainst: protects It a defendant Jersey, 530 U.S. v. New prendi offense after (2000), prosecution ond same which 147 L.Ed.2d 435 S.Ct. (2) acquittal; prosecution second ting types forth three plea agreements. (3) conviction; same offense after and mul- The defendant may agree plead tiple punishments for the same offense. exchange for the government’s agree- Johnson, 493, 498, (A) Ohio v. 467 U.S. 104 ment to bring or move to dismiss (1984). S.Ct. (B) L.Ed.2d 425 Patter- charges, other make particular sen- predicated sоn’s claim is on the second of tencing court, recommendations to the or these protections; (C) three he contends that agree upon specific or sentence sen- when the attached tencing range. 11(c)(1)(A)- Fed.R.Crim.P. (C). and that accordingly he Under the first and types, third could not be again tried for that same court may accept reject or agreement, offense. argues further that his or it may defer its decision until it has guilty plea should be reinstated and thаt considered PSR. Fed.R.Crim.P. he should be sentenced in 11(c)(3)(A). accordance with The second type is not bind- which would five-year be to a court, on the and the court must advise maximum pled because he to an the defendant that he or she has no right unspecified amount marijuana. We withdraw the if rejects agree. recommendation. Fed.R.Crim.P.

11(c)(3)(B). If the rejects court plea the I. agreement, it must so parties inform the and give must the an opportuni- jeopardy Double claims are sub ty to withdraw the plea, as well as advise ject to de novo review. United States v. the defendant that if plea the is not with- Scarano, (9th Cir.1996). 76 drawn, may the court “dispose of the case Whether the district court is required to favorably less toward the defendant than plea enforce a agreement a question of the plea agreement contemplated.” Fed. subject law to de novo review. United 11(c)(5). R.Crim.P. (9th States v. Fagan, 996 F.2d Cir.1993). adequacy The of a plea Rule 11 The court district here very conducted a hearing is also reviewed de novo. United thorough Rule 11 colloquy. The court ad- (9th States v. Seesing, 234 F.3d vised of rights Patterson his and the na- .2000). Cir charge him, ture of the against and deter- mined plea voluntary and that

II. there a factual plea. basis for the The Rule 11 sets procedures forth the that court reviewed plea agreement then the the district court must follow in accepting with Patterson. agreement The did not a plea or nolo contendere.1 require The the to dismiss other court must determine the defendant charges; nor it specify any did sentencing rights understands his and the nature of Instead, recommendation. plea agree- the charge, plea is voluntary, and provided ment the parties did not that there is a factual basis for plea. agree sentence, on the and that the court 11(b). 11(e) Fed.R.Crim.P. ‍​‌‌‌​​​​​‌​​‌​‌​‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌​​​​‌‍then de- had made no commitment about the sen- plea agreement sсribes the procedure, set- tence and was not bound agree- 1. Rule 11 was part amended in 2002 visory "as Committee’s Note. The differences be- general restyling of the Criminal Rules tween the current version and the version in make easily them more understood and to effect the time hearing at of Patterson’s do style make terminology and analysis. consistent not affect The current version is throughout the rules.” throughout Fed.R.Crim.P. 11 Ad- cited opinion. has set plea the Where the defеndant also stated that

ment. The however, aside, is that general liti- rule marijuana plants would be number implicated by his jeopardy “double is not sentencing and gated recharged tried on penalties subsequently being under varying was aware of 841(b)(1) quanti- Taylor, count.” 920 F.2d at 602 different same U.S.C. Barker, 2; accordingly ac- n. plants. see also United States ties (9th Cir.1982) set guilty plea, (rejecting a date F.2d 590-92 cepted Patterson’s sentencing hearing, jeopardy advised claim where the defendant double murder, degree it would review PSR sub pled guilty Patterson that to second appropriate sen- determining sequently plea moved to set aside her before conviction, argued that the dis tence. then acceptance trict of her initial court’s III. as a first plea acquittal acted an as to degree murder case charge). Patterson’s In to evaluate Patterson’s order is, course, Taylor distinguishable from claim, must determine jeopardy doublе we and Barker it was his decision because attached when the dis jeopardy Instead, plea have the set aside. plea trict gov district court vacated on the properly vacated whether the district motion. accept ernment’s Once objections. See over Patterson’s acceptance ed the and deferred Kincheloe, Taylor v. “ however, the court was agreement, Cir.1990) ac (stating ‘an because govern to vacаte on the free can cused must before he suffer motion. United States v. Partida ment’s initial jeopardy,’ inquiry suffer [t]he double (9th Cir.1988). Parra, 629, 859 F.2d 631-34 analysis ... is whether jeopardy in double when”) ‘attached,’ so, if jeopardy has Ellis, here, In ac- as the district court (citation omitted) v. (quoting Unit Serfass cepted guilty plea the defendant’s but de- States, 377, 393, 1055, 95 ed 420 U.S. S.Ct. plea acceptance agreement ferred of the (1975)). 43 L.Ed.2d 265 We conclude that until prepared. after the After PSR court jeopardy accepted attached when the PSR, reviewing the the court the vacated that, it accepted once plea Patterson’s plea required on its own initiative and the authority have plea, the court did not plead higher to charges. defendant to government’s vacate on the plea to motion. Ellis, Prior to there had been some question question accep no a

There is the dis as “whether court’s guilty plea guilty trict court of a Pattеrson’s tance constitutes point jeopardy made commitment re ... though even it no which attaches garding impose acceptance it would or where the condi the sentence court’s Jeopardy ordinarily plea on the review agreement. tioned court’s of the accepts a attaches when the court the court’s determination guilty. Vaughan, appropriateness States v. 715 of United the sentence.” (9th 1373, Cir.1983); Faber, 2 F.2d n. accord United v. 57 875 1378 Statеs (9th Cir.1995) Aliotta, (discussing v. 199 F.3d v. 83 Adamson (2d Cir.1999) Ricketts, (9th Cir.1986) (rais (stating general “[a]s 789 F.2d 722 rule, rev’d, issue), attaches in a criminal not 483 resolving case accepts at the time the district court the U.S. 107 S.Ct. L.Ed.2d (1987)). guilty plea”). Although did concern defendant’s Ellis not jeopardy, double the en banc reject- dant was found of conspiring to position ed the taken our earlier prece- distribute an unspecified quantity of mari- dent that the district court’s acceptance juana, because “the Fifth Amendment “ ” guilty plea ‘imрliedly is contingent’ on our Constitution permit does not [the de- Ellis, the court’s review of the PSR. 356 fendant] to be tried twice for the same F.3d at 1205 (quoting offense”). The postponement court’s of the Cordova-Perez, sentencing decision did not postpone the Cir.1995)). Thus, although the district decision to accept the plea. The district court is ‍​‌‌‌​​​​​‌​​‌​‌​‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌​​​​‌‍reject free to plea agreement not did have authority to vacate the after accepting plea, it not is free оbjections. over Patterson’s vacate the either on govern- government The argues that district ment’s Instead, motion or sua sponte. court properly vacated original when the accepts a guilty plea but plea because the plea did not specify the rejects plea agreement, it becomes the amount marijuana and, accordingly, was choice defendant’s stand invalid because it not did contain an essen plea or tо plea. withdraw the Id. at 1208. tial element of the offense. See Fed. R. “Nowhere does Rule provide 11(b)(1)(G) Crim P. (requiring district district may dictate this choice.” Id. court to determine that the defendant un thus contemplates that the dis- derstands “the nature of each charge to rejection

trict court’s of a plea agree- which the defendant see pleading”); defendant, ment allows the also, e.g., Seesing, F.3d at 462 (holding court, to make the next decision with that the district court failed to meet the respect to the status plea.... 11(c)(1) requirements of Rule it omit only course available district ted an crime, element of the and that the court, upon rejecting agree- harmless). error Even assuming ment, is to advise of his may a plausible been argu rights, including the right to withdraw ment at the time the filed its plea. original opening brief, this contention clearly Id. at has been foreclosed our inter vening precedent. See United v. States Ellis makes clear that view expressed in Thomas, 1191, 1195(9th Cir.2004) some of prior that plea cases “ (discussing confirming cases drug that and the are ‘inextricably quantity offense). is not an element of the up bound together’ such that deferment of the decision whether accept to IV. agreement carrie[s] with it postponement Patterson pro- contends the proper of the decision whether accept to the plea” cedure on remand is to origi- reinstate his is no longer good lаw. Id. 1205 (quoting nal guilty plea and sentence him in accor- Cordova-Perez, 1556). 65 F.3d at The dis dance that plea. agree. with We trict here clearly accepted Patter plea; so, son’s when it did at pled Patterson guilty to an unspecified tached. United States v. quantity marijuana. Velasco- of We confronted the Cf. Heredia, 319 1086-87 Cir. question of procedure the proper on re- 2003) (stating that had mand pleads when defendant guilty to an lost its opportunity to prove that unspecified the de quantity drugs of in Thomas. fendant responsible was for more than 100 The in defendant pled Thomas to guilty kilograms marijuana of where the possession defen- with to intent cocaine distribute sen- permissible maximum ingly, quantity to the admit did

base but years prison, in is five on remand tence indictment. charged drugs that 841(b)(1)(D). § to U.S.C. pursuant ruled The district drug quantity “necessarily 706-07; admitted Banuelos, Velas F.3d at cf. and conse- indictment” in the allegation 1086-87 co-Heredia, n. F.3d at 1083 in accordance а sentence imposed remanding quently (affirming conviction this was held that We quantity. to with pursuant resentencing for resentencing for and remanded ap error 841(b)(1)(D) defendant where of cocaine quantity unspecified anon based to dis conspiring for conviction his pealed at 1198-1202. marijua Id. base. quantity unspecified an tribute na). Thomas, to Similar ad- Patterson chal only Here, although Patterson established unspecified an manufacturing resulting conviction

mitted to appeal on lenges addressed the dis marijuana. We followed trial that quantity jury from on proper procedure guilty plea, he of his Thomas court’s vacation trict the district appeal for been that he would does remand states specifically drug jury to necessarily determine ensued from empanel his conviction doubt. We a reasonable accord beyond case quantity plea.2 Patterson’s in reliance procedure Banuelos and agаinst with decided on all fours ingly is Banuelos, 322 F.3d guilty plea a valid on United entered Thomas. He failure to (9th Cir.2003), “the where amount unspecified of an manufacture re- the defendant from ac marijuana, elicit an admission the district which cor- not be quantity could drug garding following a careful cepted determination drug quantity Thus, properly “was by a rected colloquy. Thomas, F.3d at set forth general on remand.” offense of the convicted 841(a)(1) charged in offense §in —the Banuelos, pled guilty In for which only and the offense indictment marijuana but to distribute conspiracy for conviction.” a factual basis there marijuana for amount disputed remedy, appropriate at 706. Id. Banuelos be held liable. he should which therefore, the conviction and is to vacate sentence, not his con- only his challenged trial, rein resulting from his sentence is, he That viction. re- and remand guilty plea, state doubt a reasonable beyond admitted accordanсe sentencing in with un- an to distribute conspired that he im years’ of five to maximum which he marijuana. Thus amount specified 21 U.S.C. pursuant prisonment, general convicted properly 841(b)(1)(D). § 841(a)(1) § of- in forth offense set —the a factual basis there was for which fense CONCLUSION conviction, did not because Banuelos Ellis, accep- court’s the district Under change quantity at drug allocute condi- plea was tance of Patterson’s drug quanti- or admit hearing defective for tional. Nor was Acсord- agreement. ty in a written instructions, rulings, jury reason, evidentiary acknowledges 2. For this evidence, the constitu- sufficiency we do not if we reinstate sentencing guidelines and the tionality of the remaining he raises issues to address need sentencing provisions of mandatory minimum Accordingly, we not consider appeal. do on U.S.C. 841. challenges district court's to the specify failure to the quantity marijua- solution would scrupulously honor the na. The district court accordingly right erred defendant’s have a determine all vacating Patterson’s valid on relevant gov- aspects of his crime and punishment. ernment’s motion. It Ellis, is unfortunate that Banuelos,

VACATED REMANDED. and Thomas —cases that bear enough TALLMAN, Judge, Circuit concurring: technical similarity to this case to com- mand application their here, but that bear I only concur I because believe we are no resemblance at all in spirit require the bound our recent en banc — decision district court on remand to blind itself to United, Court, Ellis v. States Dist. jury’s findings drug on quantity ‍​‌‌‌​​​​​‌​​‌​‌​‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌​‌​‌​‌‌​​​​‌‍and (9th Cir.2004) (en banc), F.3d 1198 to con- sentence the defendant more leniently clude that the judge district accepted Pat- solely based on conviction for an unspeci- terson’s attached at fied amount of marijuana. Not even Pat- point in time. Under United States v. terson himself could have contemplated Thomas, Cir.2004), F.3d 1191 this windfall pled when he guilty, fully Banuelos, United States v. 322 F.3d 700 expecting that disputed quantity of (9th Cir.2003), we must remand this case marijuana would be determined at sen- for resentencing based on an indetermi- tencing. nate marijuana. amount of When the produces law a result that is I separately write because of the unfor- technically correct but is neither fair nor precedents tunate result dictate in this just, it is time to change the law. Because Thomas, recidivist case. Unlike in which only another en panel banc or the Su- the sentencing court failed to examine the preme Court justice can see is done facts supporting the quantity of drugs and light here in of existing Ninth au- Circuit instead borrowed quantity alleged in thority, I reluctantly concur in the disposi- indictment, 1198-1202, F.3d at this tion. is a case where both parties had full opportunity present evidence of drug

quantity jury, ato which found a substan-

tial marijuana amount of grown by the beyond

defendant a reasonable doubt. Banuelos, Unlike in which the defendant Singh BARAPIND, Kulvir did not his right waive to have a jury Petitioner-Appellant, quantity, determine 322 F.3d at a case where knowingly Jerry J. ENOMOTO, United States Mar- voluntarily pled guilty, fully expecting that shal for the Eаstern District of Cali- he would be sentenced upon based whatev- fornia, Respondent-Appellee. er marijuana amount of the district court Ellis, would later determine. And unlike No. 02-16944. in which court improperly “inject[ed] Appeals, Court of

itself into the charging decision vacat- Ninth Circuit. and requiring [the defendant] Aug. to plead higher charges[,]” 356 1203, this is a case where the learned Sekhon, Jagdip Singh Sekhon, Sekhon & district judge, in the operating unsettled Francisco, CA, San for Petitioner-Appel- wake of Apprendi, tried to craft a fair lant.

Case Details

Case Name: United States v. Toby C. Patterson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 20, 2004

Citation: 381 F.3d 859

Docket Number: 00-30306

Court Abbreviation: 9th Cir.