This is how you properly ignore contrary circuit precedent. Because even if a dozen panels keep applying the same test, if the statute changed in the meantime, and the panels (and/or parties) didn't notice or discuss that change, then they aren't binding.
Glad Judge Tashima caught this one. Too bad it took six years to get it right.
But we're all good now.
(For the record: Being a cook in a prison may allow you to smuggle in a lot of drugs, but that's not a "position of trust" that involves "professional or managerial discretion" to get you a two-level sentencing enhancement.)
