United States v. 2005-05-05 | 03-30306 | USA VPATTERSON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 00-30306
Plaintiff-Appellee, D.C. No.
v. CR 99-0081 EJL  D. IdahoTOBY C. PATTERSON,
Defendant-Appellant. ORDER

Filed May 6, 2005
Before: John T. Noonan, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Order;
Dissent by Judge Kozinski;
Dissent by Judge Kleinfeld
ORDER
The panel has voted to deny the petition for panel rehear-
ing, with Judge Tallman voting to grant it. Judge Tallman
votes to grant the petition for rehearing en banc. Judges Noo-
nan 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.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
4865

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KOZINSKI, Circuit Judge, with whom Judges
O’SCANNLAIN, BYBEE, CALLAHAN and BEA join, dis-
senting 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 (1984), and the law of two other cir-
cuits. It also gives Patterson an undeserved windfall by shav-
ing 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 long-
standing circuit split about when double jeopardy protections
kick in after a guilty plea.
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 manu-
facturing 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 Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), that any fact, other than a
prior conviction, that increases the penalty for a crime beyond
the statutory maximum—including, in this case, the number
of plants—must be submitted to a jury and proved beyond a
reasonable doubt. The number of plants had not been admitted
by Patterson, and, under Apprendi, the district court couldn’t
determine it. So the district court concluded that Patterson’s
plea was invalid and vacated it. Patterson was later tried, and
a jury convicted him of manufacturing 100 or more marijuana
plants.
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Patterson appealed, arguing that the Double Jeopardy
Clause prohibited the district court from vacating his guilty
plea and forcing him to stand trial. Under the Double Jeop-
ardy Clause, “once a defendant is placed in jeopardy for an
offense . . . the defendant may neither be tried nor punished
a second time for the same offense.” Sattazahn v. Pennsylva-
nia, 537 U.S. 101, 106 (2003). Its protections kick in, that is,
only after the defendant has been placed in jeopardy—or, to
use the technical expression, when jeopardy has attached. See
Serfass v. United States, 420 U.S. 377, 388 (1975). Thus, the
key question for the panel was whether jeopardy attached
when Patterson pled guilty, so that his subsequent trial would
amount to trying him a second time for the same offense.
The panel originally said it did not. It noted that, while
“ ‘[j]eopardy ordinarily attaches upon the court’s acceptance
of a plea agreement,’ a guilty plea that is only conditionally
accepted does not give rise to jeopardy.” United States v. Pat-
terson (Patterson I), 292 F.3d 615, 624 (9th Cir. 2002) (quot-
ing United States v. Smith, 912 F.2d 322, 324 (9th Cir. 1990))
(emphasis added) (alteration in original) (citation omitted).
Relying on a line of cases saying that a plea is “impliedly con-
tingent” on review of the Presentence Report, the panel held
that Patterson’s plea was conditional and thus jeopardy did
not attach when the district court accepted it. Id. at 624-25.
After the panel’s decision, we rejected the “impliedly con-
tingent” doctrine in Ellis v. United States District Court, 356
F.3d 1198, 1205 (9th Cir. 2004) (en banc). The panel here
revised its opinion in light of Ellis. Its current opinion holds
that, since the district court’s acceptance of Patterson’s plea
was not conditional (Ellis), and since “[j]eopardy ordinarily
attaches when the court accepts a plea of guilty,” Patterson
was protected by the Double Jeopardy Clause from the
moment his plea was accepted. United States v. Patterson
(Patterson II), 381 F.3d 859, 864-65 (9th Cir. 2004).
The panel’s opinion thus gives Patterson a windfall: When
Patterson pled guilty, he anticipated that the district court
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would determine the number of marijuana plants involved and
would then impose a sentence based on that amount. He dis-
puted the actual number, to be sure, but he recognized that the
determination would be left to the district court; he under-
stood that, if the district court found (as the jury ultimately did
in his trial) that he manufactured 100 or more plants, his mini-
mum sentence would be 188 months. After the panel’s deci-
sion, Patterson must now be sentenced within the statutory
range for manufacturing an indeterminate amount of mari-
juana. For this crime, he faces a statutory maximum of 60
months. As Judge Tallman notes in his concurrence, “[n]ot
even Patterson himself could have contemplated this windfall
when he pled guilty, fully expecting that the disputed quantity
of marijuana would be determined at sentencing.” Id. at 867
(Tallman, J., concurring).
II
The panel notes that the district court unconditionally
accepted Patterson’s guilty plea. It also notes that, under our
caselaw, jeopardy ordinarily attaches when a guilty plea is
unconditionally accepted.1 It then leaps to the conclusion that
jeopardy attached at the time of Patterson’s plea. But there’s
the rub: The panel skips the logical step between generalizing
about when jeopardy ordinarily attaches and specifically con-
cluding that it attached in this case. This is a leap that is pro-
hibited by Ohio v. Johnson, 467 U.S. 493 (1984).
In Johnson, the defendant had been indicted on four counts,
two of which were lesser included offenses of the other two,
and had then pled guilty to the lesser offenses. For double
jeopardy purposes, a lesser included offense is the same as the
associated greater offense. See Brown v. Ohio, 432 U.S. 161,
166-68 & n.6 (1977). If jeopardy had attached when the
defendant pled guilty to the lesser offenses, the Double Jeop-
1This rule is itself controversial. See section IV infra (pointing out that
the circuits have split on its validity).
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ardy Clause would have barred the state from prosecuting him
on the two remaining charges.
However, the Supreme Court rejected this view. It empha-
sized that the Double Jeopardy Clause embodies two con-
cepts, “principles of finality and prevention of prosecutorial
overreaching,” 467 U.S. at 501-02, and that prosecuting the
defendant for the greater offenses after he pled guilty to the
lesser offenses would run afoul of neither principle. Thus, the
Court held, the state could try the defendant on the remaining
offenses, id. at 501, which means that jeopardy did not attach
when the trial court accepted defendant’s guilty plea.
There are two important doctrinal points in Johnson. First,
jeopardy does not always attach when the defendant enters a
guilty plea; Johnson itself illustrates this point. Cf. id. at 500
n.9 (“[T]he taking of a guilty plea is not the same as an adju-
dication on the merits after full trial . . . .” ). Second, the Court
provided a framework—which the Patterson II panel ignores
—for determining whether jeopardy attaches when a defen-
dant pleads guilty. A court must consider the twin aims of the
Double Jeopardy Clause: protecting a defendant’s finality
interests and preventing prosecutorial overreaching.
The First and Third Circuits have applied this framework
in concluding that jeopardy did not attach when, as here, the
district court accepted a defendant’s guilty plea and then
vacated it in the same proceeding. In Gilmore v. Zimmerman,
793 F.2d 564 (3d Cir. 1986), the defendant pled guilty to
involuntary manslaughter, a lesser included offense of crimi-
nal homicide. The district court vacated the plea after reject-
ing the prosecutor’s recommended sentence, and then forced
the defendant to stand trial. Id. at 567. The Gilmore court rec-
ognized that Johnson had undermined its previous rule that
jeopardy attached when the district court accepted a guilty
plea:
Like Johnson . . . , this case involves a single prose-
cution, not successive ones. . . . The fact that his plea
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was stricken obviously puts him in no better position
than that of a defendant whose plea remains intact.
These precedents teach that the interests protected by
the Double Jeopardy Clause’s prohibition against
successive prosecutions for the same offense simply
are not implicated in the situation currently before
us.
. . . .
Appellant relies most heavily on the following
observation of the court in [United States v.] Jerry[,
487 F.2d 600, 606 (3d Cir. 1973) (holding that jeop-
ardy attached when the guilty plea was accepted)]:
[“]Jerry must be considered to have been convicted
by the entry of his plea of guilty just as if a jury had
found a verdict of guilty against him, and jeopardy
therefore attached with the acceptance of his guilty
plea by the district court.[”] It is true that this state-
ment, coming as it did in the context of a case
involving a single prosecution, is inconsistent with
the result we here reach. . . . [But] whatever value it
may retain in other contexts, in light of Ohio v.
Johnson, it can no longer be read to suggest that
double jeopardy interests are implicated in a case
like this.
793 F.2d at 569-71 (citation omitted).
The First Circuit reached the same conclusion in a similar
case a year later. See United States v. Santiago Soto, 825 F.2d
616 (1st Cir. 1987). It explained:
Underlying Johnson is the proposition that an
acceptance of a guilty plea is legally different from
a conviction based on a jury’s verdict. . . . In this
respect, the Court seems to have overruled our
[prior] double jeopardy analysis . . . .
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. . . .
. . . The mere acceptance of a guilty plea does not
carry the same expectation of finality and tranquility
that comes with a jury’s verdict or with an entry of
judgment and sentence . . . . Cf. Ricketts v. Adamson,
[483 U.S. 1] (1987) (assumes that jeopardy at least
attaches when the defendant was sentenced on his
guilty plea to a lesser included offense).
. . . Certainly in this case, in which the judge ini-
tially accepted the guilty plea but then rejected it
within the same proceeding, defendant was not
placed in jeopardy in any meaningful sense.
Id. at 619-20.
In this case, likewise, it is hard to see how one could apply
Johnson’s framework and nonetheless conclude, as the panel
does, that jeopardy attached when the district court accepted
Patterson’s guilty plea. Patterson certainly had a finality inter-
est: He had pled guilty to the only charge against him. But
this interest was relatively weak. As in Gilmore and Santiago
Soto, the district judge accepted the plea and then rejected it
in the same proceeding; no new charges were brought against
him. More importantly, his plea agreement contemplated, and
he acknowledged in his plea colloquy, that the district court
would determine the number of marijuana plants after the par-
ties litigated that issue. The number of plants involved was
the key issue in determining how long Patterson stayed in
prison, and it was more hotly contested than whether he man-
ufactured marijuana at all. Had Patterson been asked after his
guilty plea whether he thought his criminal proceedings were
basically over, he would surely have said no: He still faced a
contentious hearing on the sole issue that would make the dif-
ference between 15 years in prison and five.
As to prosecutorial overreaching, there was none. The pros-
ecution didn’t charge Patterson with a second crime after get-
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ting him to plead guilty. Instead, it entered a plea agreement
with Patterson in which both sides agreed that the number of
plants would be determined by the district court. When
Apprendi came down and called this approach into question,
the district judge came up with a solution that allowed a jury
to make this determination, and the prosecutor simply used it
to prove exactly what he had set out to prove from the begin-
ning: that Patterson had been growing 100 or more plants.
The panel’s conclusion that jeopardy nevertheless attached
creates a square conflict with the First and Third Circuits, and
with Johnson itself.
III
Perhaps the panel could have dealt with Johnson in its
opinion and nonetheless concluded that jeopardy attached. I
doubt it, but the panel does not even attempt to do so. Instead,
it holds that this case is controlled by Ellis v. United States
District Court, 356 F.3d 1198 (9th Cir. 2004) (en banc). This
is a strange view: Ellis didn’t say anything about double jeop-
ardy, a point even the panel recognizes. See Patterson II, 381
F.3d at 864-65. In fact, the only reference to double jeopardy
in Ellis is in Judge Kleinfeld’s dissent, where he pointed out
that the case could not have been resolved on those grounds
because of—you guessed it—Johnson. See Ellis, 356 F.3d at
1239 n.43 (Kleinfeld, J., dissenting).
Ellis held only that a district court does not have authority
to vacate a guilty plea on its own motion because no such
authority is granted in Rule 11. See Ellis, 356 F.3d at 1200
(“Because Rule 11 contains no provision permitting the dis-
trict court itself to determine that the plea should be vacated
following its rejection of the plea agreement, the district
court’s choice to do so here was error.”). It’s hard to see how
any conclusion about double jeopardy flows from this, as
there’s no inherent connection between the district court’s
authority to vacate the plea and the question of when jeopardy
attaches. Perhaps it bears on Patterson’s finality interest—had
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the panel applied Johnson’s analysis and considered that
interest. But the panel seems to assume that Ellis’s holding
alone dictates the result of its double jeopardy analysis.
The problem is not just that Ellis said nothing about the
double jeopardy issue addressed in Patterson II; it’s also that
the opinions are vastly different in scope. Ellis was simply an
interpretation of the Federal Rules of Criminal Procedure. The
fact that the holding was rooted in the federal rules meant that
it could be changed by amending the rules; no one questioned
that a differently written rule could permit a district judge to
vacate a guilty plea if he believed the sentence recommended
in the plea agreement was too lenient. See Ellis, 356 F.3d at
1221 (Kozinski, J., concurring) (“[I]f it really turns out to be
a big problem that district courts lack authority to vacate
guilty pleas, the Federal Rules of Criminal Procedure can be
tweaked to give them such power.”).
After Ellis, the panel might have been justified in reversing
on the theory that the district court exceeded its authority
under Rule 11. By holding instead that jeopardy attached
because the district court lacked authority to vacate defen-
dant’s plea, Patterson II elevates Ellis to a rule of constitu-
tional law. Thus, on the panel’s view, the constitutional
question of when jeopardy attaches in the context of a guilty
plea turns on what the federal rules say about the district
court’s authority to vacate the plea. This gives the rules far
more weight than is due.
IV
Our failure to take this case en banc is even more unfortu-
nate because it leaves intact our circuit’s rule that “[j]eopardy
ordinarily attaches when the court accepts a plea of guilty,”
Patterson II, 381 F.3d at 864—a rule that should be reconsid-
ered after Johnson.
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The first appearance of this rule in our caselaw came before
Johnson. In United States v. Vaughan, 715 F.2d 1373 (9th
Cir. 1983), we held:
Where there is neither a trial before a jury or a
judge but, instead, a defendant enters a plea of guilty
to one of the crimes with which he has been charged,
jeopardy ordinarily attaches as to that crime upon
acceptance of the plea by the court. See United
States v. Cruz, 709 F.2d 111, 114-[16] (1st Cir.
1983); United States v. Hecht, 638 F.2d 651, 657 (3d
Cir. 1981).
Id. at 1378 n.2. At the time, a number of circuits followed this
approach, with some even holding that jeopardy always
attached when the plea was accepted. See, e.g., United States
v. Sanchez, 609 F.2d 761, 762 (5th Cir. 1980) (“Jeopardy
attaches with the acceptance of a guilty plea.”); United States
v. Cambindo Valencia, 609 F.2d 603, 637 (2d Cir. 1979)
(“[I]t is axiomatic of the double jeopardy clause that jeopardy
attached once [the] guilty plea was accepted.”); United States
v. Bullock, 579 F.2d 1116, 1118 (8th Cir. 1978) (per curiam)
(“Of course, jeopardy would attach when a plea of guilty is
accepted.”).2
After Johnson, the First and Third Circuits—the two courts
we relied on when we adopted the “ordinarily attaches” rule
in Vaughan—revisited the issue. Both of them concluded that
their previous rule about when jeopardy attached could not
stand in view of Johnson. See Santiago Soto, 825 F.2d at 619
2One outlier was the Tenth Circuit. In United States v. Combs, 634 F.2d
1295 (10th Cir. 1980), Judge Logan concluded that jeopardy does not
attach until the trial court enters judgment and a sentence on the guilty
plea. Id. at 1298. However, this view did not command a majority of the
panel: Judge McKay dissented on the issue of when jeopardy attached, id.
at 1300-02 (McKay, J., dissenting), and the third panel member, Judge
Breitenstein, found it unnecessary to decide the point, id. at 1299 (Breiten-
stein, J., concurring).
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(“[T]he Court seems to have overruled our double jeopardy
analysis in Cruz.”); Gilmore, 793 F.2d at 571 (“[W]hatever
value [the old rule] may retain in other contexts, in light of
Ohio v. Johnson, it can no longer be read to suggest that dou-
ble jeopardy interests are implicated in a case like this.”); see
also pages 4869-71 supra.
Yet we have never reconsidered our own caselaw, which
was based on those overruled out-of-circuit decisions. When
we reiterated Vaughan’s rule in United States v. Smith, 912
F.2d 322, 324 (9th Cir. 1990), we didn’t even hint that John-
son may have had some bearing on the issue. In fact, we cited
as authority the First Circuit’s opinion in Cruz—which the
First Circuit had recognized as overruled three years earlier.
Cf. United States v. Cordova-Perez, 65 F.3d 1552, 1556 n.8
(9th Cir. 1995) (noting, in a different context, that “Cruz has
. . . been disapproved because it was influenced partly by dou-
ble jeopardy concerns which are inconsistent with Ohio v.
Johnson, 467 U.S. 493 (1984)”).
Nor are we the only circuit that has reaffirmed a pre-
Johnson rule about when jeopardy attaches in the context of
a guilty plea without considering whether the rule remains
valid. In United States v. Baggett, 901 F.2d 1546 (11th Cir.
1990), for instance, the Eleventh Circuit reaffirmed Sanchez’s
holding that jeopardy attaches when the plea is accepted, but
declined to mention Johnson. Id. at 1548 (“[W]ith respect to
the offense pleaded to, jeopardy normally attaches when the
court unconditionally accepts a guilty plea.”); see also, e.g.,
United States v. Ursery, 59 F.3d 568, 572 (6th Cir. 1995)
(“[J]eopardy attaches to a guilty plea pursuant to a plea agree-
ment upon the court’s acceptance of the plea agreement.”),
rev’d on other grounds, 518 U.S. 267 (1996); Fransaw v.
Lynaugh, 810 F.2d 518, 523 & n.9 (5th Cir. 1987) (“In a plea
bargaining context, the rule in this Circuit with respect to the
offense pleaded to is that ‘[j]eopardy attaches with the accep-
tance of a guilty plea.’ ” (quoting Sanchez, 609 F.2d at 762)
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(alteration in original)).3 But see United States v. Ritsema, 89
F.3d 392, 399 n.6 (7th Cir. 1996) (“The First Circuit’s holding
[in Cruz] was founded in limited part on the notion that jeop-
ardy attaches to the acceptance of a guilty plea . . . . To that
extent, Ohio v. Johnson is thought to have overruled Cruz.”
(citation omitted)); Bally v. Kemna, 65 F.3d 104, 107-08 (8th
Cir. 1995) (noting that “several federal courts have questioned
the rationale of cases holding that jeopardy attaches upon
acceptance of a guilty plea,” but assuming for purposes of the
case “that jeopardy attached when the court accepted the
guilty plea”).
This confusion has filtered down to the state courts, which
are likewise split on the question. Compare, e.g., State v.
Angel, 51 P.3d 1155, 1157-59 (N.M. 2002) (holding, citing
Johnson and Santiago Soto, that jeopardy did not attach when
trial court accepted a no contest plea but dismissed charges
before sentencing), with Peiffer v. State, 88 S.W.3d 439,
444-45 (Mo. 2002) (“[D]ouble jeopardy attaches to a guilty
plea upon its unconditional acceptance.” (citing Fransaw, 810
F.2d at 523)), and State v. McAlear, 519 N.W.2d 596, 599
(S.D. 1994) (“In the case of a plea bargain, jeopardy attaches
when the court accepts the guilty plea.” (citing Fransaw, 810
F.2d at 523)).
Patterson II provided an opportunity for us to finally con-
sider what Johnson has to say about when jeopardy attaches.
This is a recurring issue, and everyone involved—
3Johnson’s relevance did not escape a later Fifth Circuit panel, which
recognized that “the Supreme Court’s . . . decision in Ohio v. Johnson has
been regarded by the First Circuit as effectively rejecting the double jeop-
ardy concerns expressed in Cruz,” a point on which it cited, and agreed
with, Santiago Soto. United States v. Foy, 28 F.3d 464, 471 n.13 (5th Cir.
1994) (citation omitted). However, Foy, which was not a double jeopardy
case, did not reconsider Fransaw’s double jeopardy holding, and later
cases have ignored Foy (and Johnson) in concluding that jeopardy
attached when the trial court accepted a defendant’s guilty plea. See, e.g.,
United States v. Bond, 87 F.3d 695, 699 (5th Cir. 1996).
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prosecutors, defense attorneys and defendants—would have
benefitted from the thorough treatment of the issue that we
could have provided had we gone en banc. So far, our only
contribution has been to ignore Johnson. We should do better.
KLEINFELD, Circuit Judge, with whom GOULD and TALL-
MAN, Circuit Judges, join, dissenting from denial of rehear-
ing 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
noted2 that the Ellis en banc decision overturned the estab-
lished circuit law, United States v. Cordova-Perez,3 which had
been followed by the three-judge panel in Ellis. While per-
haps the panel should have read the Supreme Court’s decision
in Ohio v. Johnson4 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 presentence 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,
1Ellis v. United States Dist. Court, 356 F.3d 1198 (9th Cir. 2004) (en
banc).
2United States v. Patterson, 381 F.3d 859, 864-65 (9th Cir. 2004).
3United States v. Cordova-Perez, 65 F.3d 1552 (9th Cir. 1995).
4Ohio v. Johnson, 467 U.S. 493 (1984).
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United States v. Hyde.5 Now we continue down the mistaken
path we chose in the Ellis en banc.
I thought that the district court judge was right in Ellis, and
explained why in the repudiated panel opinion in that case.6
And I explained why the en banc decision was mistaken in
my dissent from the en banc decision in Ellis.7 My reasoning
is in print and need not be repeated here.
Now we reap what we sowed in Ellis. Again a defendant
ties the court into needless knots, preventing a just resolution
of the case that would take into account the defendant’s actual
conduct. I would have taken this case en banc to correct the
mistake we made in the Ellis en banc decision, and its conse-
quence in this case.
5United States v. Hyde, 520 U.S. 670 (1997).
6Ellis v. United States Dist. Court, 294 F.3d 1094 (9th Cir. 2002),
vacated, 313 F.3d 1094 (9th Cir.), and superseded, 356 F.3d 1198 (9th
Cir. 2004).
7Ellis, 356 F.3d at 1228-41 (Kleinfeld, J., dissenting).
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