Thursday, September 17, 2009

U.S. v. Contreras, No. 08-50126 (9-17-09). The 9th is over the Hill. That is, this panel has overruled U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990), which required an adjustment for abuse of a position of trust if the defendant had "the freedom to commit an offense." Since Hill, the Guidelines Commission revised 3B1.3 commentary, emphasizing that the focus on abuse of position is whether the position involved any "professional or managerial discretion." In the case here, the defendant worked as a cook in a prison. She was only cursorily searched each day upon entering, and so used this freedom to smuggle in a buffet of drugs (heroin, meth, and marijuana) into the prison and dispense it to the inmates (seconds on the brownies?). At sentencing, she was given a two-level bump for abuse of position. The 9th (Tashima joined by Bright and Hawkins) reversed and remanded. The Hill test, the panel decided, was stale, and had been supplanted by new commentary. The 9th itself had chaffed under it, limiting its application, and the panel effectively said that Hill should have been tossed after 1993. Indeed, the panel looked to the 11th Circuit, which had a case on all fours (also a prison cook) where the abuse of position adjustment was not warranted because there, as here, the cook had neither professional nor managerial discretion. The 9th here clarifies the meaning of this adjustment, in that discretion means great leeway in making judgments that are given great deference. The defendant here had none.


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