United States v. Contreras

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50126
Plaintiff-Appellee, D.C. No.
v.
 2:06-cr-00353-
SJO-6
KATIE SUE CONTRERAS, Seal F La
Gorda, ORDER AND
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 2, 2010*
Filed February 2, 2010
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima,
Sidney R. Thomas, M. Margaret McKeown,
Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,
Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr.
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1873
1874 UNITED STATES v. CONTRERAS
COUNSEL
Thomas P. O’Brien, United States Attorney, Los Angeles,
California; George S. Cardona, Acting United States Attor-
ney, Los Angeles, California; Christine C. Ewell, Daniel B.
Levin and Michael J. Stern, Assistant United States Attor-
neys, Los Angeles, California, for plaintiff-appellee the
United States of America.
Thomas W. Kielty, Los Angeles, California, for defendant-
appellant Katie Sue Contreras.
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it
is ordered that this case be reheard en banc pursuant to Circuit
UNITED STATES v. CONTRERAS 1875
Rule 35-3. The case is submitted without oral argument. See
Fed. R. App. P. 34(a)(2).
OPINION
PER CURIAM:
We adopt as our own the three-judge panel’s opinion in
United States v. Contreras, 581 F.3d 1163 (9th Cir. 2009),
except that we do not agree that the three-judge panel had
authority to overrule cases decided after the 1993 amendment
to the Guidelines. We vacate that portion of the opinion start-
ing with “Notwithstanding Willard or the 1993 amendments
. . .” 581 F.3d at 1167, column 1, line 1, and ending with
“Equally certain . . . is the fact that,” 581 F.3d at 1168, col-
umn 2, line 13, as well as the second to last paragraph, which
says “We conclude that to the extent Hill . . . overruled by the
1993 amendments to § 3B1.3’s commentary,” 581 F.3d
1168-69.
We overrule United States v. Peyton, 353 F.3d 1080,
1090-91 (9th Cir. 2003); United States v. Brickey, 289 F.3d
1144, 1153-55 (9th Cir. 2002); United States v. Hoskins, 282
F.3d 772, 778-79 (9th Cir. 2002); United States v. Technic
Servs., Inc., 314 F.3d 1031, 1048-49 (9th Cir. 2002); United
States v. Medrano, 241 F.3d 740, 746 (9th Cir. 2001); United
States v. Velez, 185 F.3d 1048, 1051 (9th Cir. 1999); United
States v. Isaacson, 155 F.3d 1083, 1084-86 (9th Cir. 1998);
United States v. Oplinger, 150 F.3d 1061, 1068-70 (9th Cir.
1998); United States v. Hill, 915 F.2d 502, 506 (9th Cir.
1990), and any of our other cases, to the extent they conflict
with our interpretation of U.S.S.G. § 3B1.3.
1876 UNITED STATES v. CONTRERAS
TASHIMA, Circuit Judge, concurring:
I concur in the judgment and all of the en banc court’s
opinion, except for the second sentence of the first paragraph,
and write briefly to explain my position.
This case was taken en banc on the issue of whether the
three-judge panel overstepped its authority in holding that
United States v. Hill, 915 F.2d 502 (9th Cir. 1990), had been
overruled by the 1993 amendment of application note 1 of
U.S.S.G. § 3B1.3. See United States v. Contreras, 581 F.3d
1163, 1164, 1168-69 (9th Cir. 2009) (“Contreras I”). The
three-judge panel’s mode of analysis is set forth in Contreras
I, id. at 1167-68. By vacating that portion of Contreras I,
although adopting the remainder of the three-judge panel’s
opinion, the en banc court has disapproved of that mode of
analysis. Although the reasons for its disapproval are unex-
pressed, presumably they are bottomed on the en banc court’s
reading of circuit precedent, particularly Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) (en banc).
I continue to abide by the three-judge panel’s reading and
application of circuit precedent in the circumstances of this
case and adhere to that portion of my opinion in Contreras I.
With that caveat, I join in the court’s opinion.