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). 

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COUNSEL

Thomas P. O’Brien, United States Attorney, Los Angeles,

California; George S. Cardona, Acting United States Attorney, Los Angeles, California; Christine C. Ewell, Daniel B.

Levin and Michael J. Stern, Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee the

United States of America.

Thomas W. Kielty, Los Angeles, California, for defendantappellant 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

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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 starting 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, column 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.

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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 unexpressed, 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.

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