Greene

SUPPLEMENTAL MEMORANDUM **

Larry Clare Greene appeals the sentence imposed after his conviction on mail and wire fraud charges in violation of 18 U.S.C. §§ 1342 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 , we resubmit the case concurrently with the filing of this disposition, and we affirm. By separate memorandum decision previously filed we affirmed Greene’s underlying conviction.

Greene contends that because he was acquitted on count 44, the district court erred by applying the loss alleged in that count toward its calculation of his offense level. We review 1) the district court’s interpretation of the Sentencing Guidelines de novo; 2) the district court’s application of the Sentencing Guidelines to the facts of this case for abuse of discretion; and 3) the district court’s factual findings for clear error. United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir.1997).

Under U.S.S.G. § lB1.3(a)(2), relevant conduct for purposes of determining a defendant’s sentencing guideline range includes all acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” A sentencing court may consider conduct even…