Babb

MEMORANDUM **

Janice Babb was convicted for stealing a total of $286,610.55 from the United States Postal Service (“USPS”). Babb claims on appeal that the sentencing court erred by (1) applying a two-point abuse of trust sentence. enhancement, and (2) ordering her to pay restitution under the Mandatory Victims Restitution Act (“MVRA”) for theft that occurred prior to that statute’s date of enactment. We reject Babb’s argument that the sentence enhancement should not have been applied, but remand for a redetermination of the restitution amount.

The sentencing court was correct to assess a § 3B1.3 two-point sentence enhancement for abuse of a position of public or private trust. 2000 U.S.S.G. § 3B1.3. The applicability of § 3B1.3 in Babb’s case is controlled by this Circuit’s very recent decision in United States v. Hoskins, 282 F.3d 772 (9th Cir.2002). The Court in Hoskins held that a K-Mart security guard was not subject to a § 3B1.3 enhancement for his participation in a robbery of a K-Mart. Id. at 779. More importantly for our purposes, the Court endorsed the use of two criteria to determine when § 3B1.3 should apply: “(1) ‘the inability of the trustor objectively and…