United States v. Robert Fine, Jr.

We revisit here the issue of what conduct is relevant to a sentence imposed under the sentencing guidelines. Fine was indicted for fourteen counts relating to mail fraud. He pleaded guilty to two. The other twelve were dismissed. The sentencing guidelines make the prison time depend on the amount of money involved in the scheme. Can the money involved in the twelve dismissed counts be considered? Yes.

We had, in the panel decision which we now reconsider, reversed the sentence on two grounds, one of which was that the court had improperly aggregated the amount of the loss in the dismissed counts with the amount in the two counts which Fine admitted. United States v. Fine, 946 F.2d 650, 651-52 (9th Cir.1991). The panel decision interprets United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1990) (amended opinion), in a way which puts it in conflict with United States v. Turner, 898 F.2d 705 (9th Cir.), cert. denied, 495 U.S. 962 , 110 S.Ct. 2574 , 109 L.Ed.2d 756 (1990), and in following that construction of Castro-Cervantes , the panel reached a conclusion which we are unable to reconcile with Turner . Our reconsideration en banc is limited to the question of whether the…