Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding, DC No. 2:06-cr-00353 SJO.
The opinion of the court was delivered by: Tashima, Circuit Judge
Argued and Submitted November 19, 2008 -- Pasadena, California
Before: Myron H. Bright,*fn1 Michael Daly Hawkins, and A. Wallace Tashima, Circuit Judges.
Katie Sue Contreras was convicted for her participation in a drug-smuggling conspiracy operated out of Ironwood State Prison, where she worked as a prison cook. She appeals her sentence, arguing that the district court's two-level enhancement of her offense level for abuse of a position of trust under United States Sentencing Guideline ("U.S.S.G.") § 3B1.3 was in error.
We agree, and reverse the sentence.*fn2 Contreras' position at the prison did not involve any "professional or managerial discretion," U.S.S.G. § 3B1.3 cmt. n.1 (2005), and therefore she did not hold a position of trust under the Guidelines. To the degree United States v. Hill, 915 F.2d 502 (9th Cir. 1990), compels a different result, it antedates and conflicts with the current version of the commentary to the Guidelines, and, therefore, has been overruled.
I. Jurisdiction and Standard of Review
We have jurisdiction over Contreras' appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because this appeal turns on an interpretation of the Sentencing Guidelines, it is a question of law which we review de novo. See United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007) ("We review de novo the district court's interpretation of the United States Sentencing Guidelines.").*fn3 "On appeal, we first consider whether the district court committed significant procedural error . . . ." United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v. United States, 128 S.Ct. 586, 597 (2007)). Such significant procedural error includes incorrectly calculating the applicable Guidelines range. Id.
Contreras worked as a prison cook at Ironwood State Prison in Blythe, California. As a prison employee, she was subject to only a cursory search when she entered the prison each day, and enjoyed unmonitored contact with inmates in the prison kitchen.
Relying on these liberties, Contreras began smuggling drugs into Ironwood. She hid the drugs in her lunch bag, often using cans of iced tea outfitted with false compartments to foil any inspections. Once inside the prison, she distributed the drugs to inmates involved in the smuggling ring. She was paid for her efforts, and successfully managed to smuggle heroin, methamphetamine, and marijuana into Ironwood.
An independent investigation by the DEA uncovered Contreras' activities, and she eventually pled guilty to one count of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)-(B), 846.
The district court sentenced Contreras to 41 months' imprisonment after determining that she had a criminal history category of I and a total offense level of 22, yielding a sentencing range of 41 to 51 months. The offense level included a two-level enhancement for the abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3. The court applied the enhancement because Contreras' ...