Sunday, September 20, 2009

Case o' The Week: Don't Trust Prison Cooks - Contreras and the Abuse of Trust Adjustment

Do the cooks that make prison "food" enjoy a special "position of trust?" Not so much, says the Ninth in a good new sentencing case. United States v. Contreras,__ F.3d __, No. 08-50126, 2009 WL 2960623 (9th Cir. Sept. 17, 2009), decision available here.

Decision by Judge Tashima, joined by Judges Hawkins and visiting Judge Bright.

Facts: Ms. Contreras was convicted of conspiracy drugs and was hit with a two offense level specific offense adjustment at sentencing for “abuse of trust.” Id. at *1 (citing USSG § 3B1.3). The adjustment was based on the access Ms. Contreras’ job as a prison cook gave her to her drug clients, the prison inmates. Id. She appealed.

Issue(s): “Prior to 1993, the Sentencing Commission offered little guidance on this question [of what constituted a ‘position of trust.’] . . . Operating under this spare formulation, we held that the hallmark of a position of trust was ‘the extent to which the position provide the freedom to commit a difficult to detect wrong.’ United States v. Hill, 915 F.2d 502 (9th Cir. 1990) . . . In 1993, however, the Sentencing Commission substantially reformulated application note 1 to better distinguish cases warranting the enhancement . . . .The new language of the application note places a significant limit on the types of positions subject to the abuse-of-trust enhancement.” Id. at *2-*3 (some internal quotations and citations omitted). “We cannot reconcile the two tests in this case . . . because the two are at loggerheads.” Id. at *4.

Held: “We conclude that to the extent Hill conflicts with application note 1 of § 3B1.3, Hill is no longer good law; it has been overruled by the 1993 amendments to § 3B1.3's commentary.” Id. at *5. “[W]e reverse and remand for resentencing without the imposition of the § 3B1.3 enhancement.” Id.

Of Note: One of the many reasons we admire Judge Tashima is that he can’t resist a good zing. In footnote four, he dryly observes that one previous Ninth Circuit panel had endorsed the old, broad Hill test in a memorandum disposition because Hill “comprehensively discussed” the amended “abuse of trust” guideline. Id. at *3 n.4.

The problem with this mem dispo is that the 1990 Hill case preceded the 1993-amended guideline by three years. Id.

A nice illustration of why mem dispos shouldn’t be cite-able.

How to Use: The good new rule on the “abuse of trust” guideline brings the Ninth up to speed on the amended guideline. There’s two other interesting aspects to this short opinion as well. First, Judge Tashima fully identifies – then artfully dodges – the unresolved question of the standard of review of a sentence on appeal. Id. at *1 n.2.

The other intriguing analysis is the panel’s defense of its power to articulate the new rule; note that this three-judge panel effectively overrules the old Ninth Circuit Hill case. Id. at *4. To accomplish this, Judge Tashima holds that the 1993 amendments overruled the old Hill case, and because no subsequent panel had attempted to reconcile Hill with the amended guideline the Contreras panel could acknowledge the overruling. That’s a handy principle to tuck away for future fights before three-judge panels.

For Further Reading: As we’ve observed before, Judge Tashima has long been a respected leader in the Ninth Circuit on tough issues of federal sentencing. He was impetus behind the brave (and correct, albeit overruled) decision that struck down the core federal drug statute as unconstitutional after Apprendi. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). He’s staunchly limited the expansion of the “modified categorical” approach when a conviction lacks an element of the generic offense. United States v. Jennings, 515 F.3d 980 (9th Cir. 2008). He understands the injustice of sentencing on acquitted conduct, and has given some pointers on how to tackle this travesty. United States v. Grissom, 525 F.3d 691 (9th Cir. 2008). And he’s always called ‘em like he sees ‘em: he’s scorned post-Booker appellate review as an “empty formality,” United States v. Carter, 560 F.3d 1107, 1124 (9th Cir. 2009), and has “curse[d] the opacity of the guidance [the Ninth Circuit has] received from above” in the post-Booker era. United States v. Autery, 555 F.3d 864, 878 (9th Cir. 2009).

For a collection of interesting cases from this always-interesting Judge, visit our blogs here.

Image of prison food from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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