FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 22-50142

             Plaintiff-Appellee,            D.C. No.
                                         3:18-cr-03072-
 v.                                         TWR-1

ANDREW HACKETT,

OPINION

             Defendant-Appellant.

      Appeal from the United States District Court
         for the Southern District of California
      Todd W. Robinson, District Judge, Presiding

        Argued and Submitted August 21, 2023
                Pasadena, California

               Filed December 18, 2024

 Before: Marsha S. Berzon, Johnnie B. Rawlinson, and
          Daniel A. Bress, Circuit Judges.

             Opinion by Judge Rawlinson;
              Dissent by Judge Berzon
2                        USA V. HACKETT


                          SUMMARY *


                         Criminal Law

    The panel affirmed the district court’s judgment in a case
in which Andrew Hackett, a stock promoter, was convicted
and sentenced for conspiracy to commit securities fraud and
securities fraud in connection with the manipulative trading
of a public company’s stock.
   The district court imposed a 16-level sentencing
enhancement under the pre-November 1, 2024, version of
U.S.S.G. § 2B1.1(b)(1)(I), which applies if the loss exceeds
more than $1.5 million. (The 2024 versions of the guideline
and commentary do not apply to this case.)
    Hackett argued on appeal that the district court erred by
following the commentary to § 2B1.1, which defines “loss”
as the “greater of actual loss or intended loss.” U.S.S.G. §
2B1.1 cmt. n.3(A). According to Hackett, this court should
follow the framework articulated in Kisor v. Wilkie, 

 (2019), to determine whether § 2B1.1 is genuinely
ambiguous as it pertains to the definition. In Hackett’s view,
because “loss” does not include intended loss in its ordinary
meaning, applying intended loss to enhance his sentence
impermissibly expanded the guideline.
    The panel reviewed for plain error because Hackett’s
objection to the district court’s loss calculation was not
sufficiently specific to preserve de novo review.


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       USA V. HACKETT                        3


    The panel held that the district court’s reliance upon the
definition of “loss” set forth in the commentary withstands
plain error review because any error was not clear or obvious
given this court’s precedent recognizing both actual and
intended loss, and because there is a lack of consensus
among the circuit courts on this issue.
   In a concurrently filed memorandum disposition, the
panel addressed Hackett’s additional challenges to his
conviction and sentence.
    Judge Berzon dissented. She wrote (1) Hackett’s
challenge on appeal includes a narrower argument than a
generic challenge to the “intended loss” commentary, in that
he also argues that the term “intended loss” does not include
a loss that was discussed or hoped for but was never
attempted to be implemented; (2) regardless of whether
Hackett preserved a wholesale challenge to any inclusion of
intended loss in § 2B1.1 calculations, he certainly preserved
a narrower objection urging a substantial-action threshold to
determine intended loss; (3) as to that argument, if not to the
broader one, de novo review is appropriate; and (4) that
argument is potentially meritorious, although its application
to this case cannot be determined without further district
court consideration.
4                        USA V. HACKETT


                           COUNSEL

Carlton F. Gunn (argued), Law Office of Carlton F. Gunn,
Los Angeles, California, for Defendant-Appellant.
Zachary Howe (argued) and Mark R. Rehe, Assistant United
States Attorneys; Daniel E. Zipp, Assistant United States
Attorney Chief, Appellate Section, Criminal Division;
Randy S. Grossman, United States Attorney; United States
Department of Justice, Office of the United States Attorney,
San Diego, California; Aaron P. Arnzen, Bottini & Bottini
Inc., La Jolla, California; for Plaintiff-Appellee.

OPINION

RAWLINSON, Circuit Judge:

    Andrew Hackett (Hackett) appeals his conviction for one
count of conspiracy to commit securities fraud in violation
of 

, 981(a)(1)(C), and 

(c);
and one count of securities fraud in violation of 15 U.S.C.
§§ 78j(b), 78f(f), 

(a)(1)(C), 

(c), and 

.10b-5. Hackett also appeals
the forty-six months of imprisonment imposed following his
conviction. Hackett specifically challenges the district
court’s reliance on the commentary to United States
Sentencing Guidelines (U.S.S.G.) § 2B1.1, which defines
loss as “the greater of actual loss or intended loss.” U.S.S.G.
§ 2B1.1 cmt. n. 3(A). 1


1
  As we discuss later, the Sentencing Commission recently amended the
relevant Guidelines provision and commentary. Those revisions do not
                             USA V. HACKETT                              5


    We have jurisdiction under 

, and we
affirm the judgment of the district court. 2
                        I. BACKGROUND
    Kevin Gillespie (Gillespie) was the founder and CEO of
First Harvest, an investment bank. First Harvest primarily
consulted with cannabis companies that were preparing to go
public or to raise capital. 3 In 2016, First Harvest became a
publicly traded company. Gillespie consulted with Annetta
Budhu (Budhu), the owner of Baywall, Inc., in taking First
Harvest public. Baywall, Inc. was compensated 200,000
restricted shares 4 in First Harvest in exchange for Budhu’s
assistance.
    Gillespie testified that the company began to lose
approximately $125,000 a month after going public.
According to Gillespie, the company was “[s]teadily raising
capital month in and month out.” But on several occasions,
Gillespie acquired toxic debt. 5
   Around the time Gillespie was taking on toxic debt,
Budhu introduced Gillespie to Hackett, a Canadian stock

apply to this case. Unless otherwise noted, all citations of the Guidelines
and commentary in this opinion are of the versions in effect prior to the
recent 2024 amendments.
2
 In a memorandum disposition filed concurrently with this opinion, we
address Hackett’s additional challenges to his conviction and sentence.
3
    First Harvest was subsequently renamed Arias Intel (Arias).
4
 The restricted shares could not be sold for 180 days after First Harvest
went public.
5
 Gillespie described toxic debt as “like taking a very, very bad loan.”
According to Gillespie, if the debt is not repaid, the debt holder will
continuously sell shares of the company on the open market “until it’s
basically worthless.”
6                          USA V. HACKETT


promoter. Gillespie and Hackett engaged in several
telephone discussions regarding successful stocks that
“[Hackett’s] group had participated in.”          Gillespie
researched one of the stocks and described it as a “pump-
and-dump scheme.” 6
    Through his company Free Life Investments, Hackett
agreed to loan First Harvest $300,000 in exchange for a
convertible promissory note. According to the promissory
note, Hackett would receive 750,000 shares at $0.40 per
share plus interest if after one year Harvest failed to repay
Hackett $300,000 plus five percent interest. But the
agreement was not executed. According to Gillespie,
Hackett’s “money was [not] available and [Hackett’s
partner] had capital available.” So First Harvest entered into
an agreement with Hackett’s partner, Robert Farrill (Farrill)
that was “substantially similar” to the agreement with
Hackett. Farrill wired $300,000 to First Harvest and
converted the promissory note into 750,000 shares. 7
    Hackett also contracted with Budhu to receive Baywall’s
restricted shares. Budhu then contacted Clear Trust, LLC
(Clear Trust), a stock transfer agent, and requested that Clear

6
  A pump-and-dump scheme “involve[s] the touting of a company’s
stock . . . through false and misleading statements to the marketplace.”
United States v. Zolp, 

, 717 n.1 (9th Cir. 2007) (internal
quotation marks omitted). “After pumping the stock, [f]raudsters make
huge profits by selling their cheap stock into the market.” 

 (citations
omitted). The critical steps in the “pump-and-dump scheme” are control,
pump, and dump.
7
  Although Hackett was no longer a party to the agreement, he remained
involved through telephone conversations with Gillespie. Hackett
encouraged Gillespie to use the $300,000 to invest in a marketing plan,
and also suggested that Gillespie file an “S-1 [form] so that the shares
would become free trading quickly.”
                            USA V. HACKETT                                 7


Trust transfer 200,000 shares of First Harvest stock to Free
Life Investments, Hackett’s company, and lift the transfer
restrictions under Rule 144 of the Securities Exchange Act
of 1934. 8 Prior to lifting the restrictions on sale of the
Baywall shares, Clear Trust received a share purchase
agreement for 200,000 shares of stock between Baywall,
Inc., as seller and Free Life Investments as purchaser; a legal
opinion; and a seller’s representation letter from Hackett on
behalf of Free Life Investment. In the representation letter,
Hackett agreed to comply with Rule 144.
    After the restrictions were lifted by Clear Trust, Hackett
promoted First Harvest stock, and recruited others to
promote First Harvest stock. Hackett and his co-defendants
paid Stellar Media Group, LLC to develop and distribute
newsletters promoting First Harvest and Arias stock.
Subject lines included text such as: “HVST stock has expert
analysts drooling. Profit now,” “Experts love this stock. It
could help you profit by 291%,” “ASNT stock could net you
the biggest gains of 2018,” and “ASNT stock is in a position
to gain up to 1,880%.”

8
  Under Rule 144, a shareholder must present the shares, a seller’s
representation letter that the shareholder will comply with Rule 144
when selling shares, and a legal opinion that the shareholder is qualified
to resell under Rule 144. In the representation letter, the seller represents
that: the resell of the shares would comply with Rule 144 and would be
sold “within a reasonable period of time.” The seller also represents that
(1) no payment was made “in connection with the offer or sale of the
Shares to any person or entity except any customary broker’s
commission or dealer’s charges,” (2) there was no solicitation of or
arrangement “for the solicitation of orders to buy in anticipation of or in
connection with the proposed sale,” (3) the seller did not act “in concert
with any person in selling the Shares,” and (4) the seller did not
“engage[] in a plan with anyone else to dispose of the Shares.” See Note
to 

(f)(1).
8                       USA V. HACKETT


    Hackett also used call rooms to promote stock purchases.
David Wolfson (Wolfson) was the owner of several call
rooms in California, and was associated with the owner of a
call room located in the Philippines. Wolfson described a
call room as “an office with agents, salespeople, openers,
and closers who market and sell various things.” According
to Wolfson, the sales agents used “predictive dialer”
software that called “10, 12 lines at a time per person until it
reached a contact” from a list of credited investors that
Wolfson bought “from lead brokers.” Hackett introduced
Wolfson to Liana Millhouse (Millhouse) to work with
Wolfson. Hackett informed Wolfson that “most of the stock
[Hackett] was successful in selling came as a result of Ms.
Millhouse’s work.” Wolfson acknowledged that sales
agents would tout the pitched stock with statements that
were not always “completely honest.” For example, agents
represented that the stocks had favorable growth, price, and
appreciation potential. When an investor expressed interest
in buying shares, the sales agents would notify Wolfson, and
he would alert Millhouse of a prospective purchaser.
Millhouse would “give a specific price to execute the trade.”
The price provided by Millhouse was often higher than the
market price. Wolfson and other sales agents were paid
commissions for stock sales.
    The activities of Hackett and his co-defendants were
exposed by FBI informant, Michael Forster (Forster), who
was involved with many pump-and-dump schemes. In 2017,
Forster arranged a meeting at the airport with an unknown
individual. When Forster arrived, he was met with an arrest
warrant from the FBI. Forster was offered a cooperation
agreement, requiring him “to begin recording and capturing
all correspondence with anyone and everyone involved in
pump and dumps, with stock fraud.” Forster provided all
                       USA V. HACKETT                        9


recordings, text messages, and emails with the co-defendants
to the FBI.
     Hackett and his co-defendants were subsequently
charged with one count of conspiracy to commit securities
fraud, and one count of securities fraud. The indictment
alleged that Hackett and his co-defendants promoted and
recruited others to promote Arias and its stock “in order to
artificially avoid the deflation of, maintain the price of, and
inflate the share price of Arias stock.” The allegations
include Hackett’s participation in the manipulative trading
of Arias stock, and “engag[ing] call room operators to
contact potential investors and convinc[ing] them to
purchase Arias stock, in exchange for a portion of the
investments made by those investors.” Once the stock was
artificially inflated through these tactics, Hackett sold the
stock in the open market. Hackett was convicted on both
counts.
    The district court imposed a sixteen-level sentencing
enhancement under § 2B1.1(b)(1). The court found that
Hackett owned 550,000 shares and intended to sell each
share at four to five dollars a share. The district court used
the lower amount to calculate an intended loss amount of
$2.2 million. Hackett’s counsel objected to the court’s
calculation of the amount of loss, but did not object that
intended loss was a legally invalid way to calculate the
amount of loss. The commentary to § 2B1.1(b)(1) defines
loss as “the greater of actual loss or intended loss.” See
U.S.S.G. § 2B1.1 cmt. n. 3(A). The district court obviously
relied upon the commentary to determine that the loss caused
by Hackett was “the intended loss amount had the venture
10                         USA V. HACKETT


been successful.” 9     After applying a sixteen-level
enhancement, the district court sentenced Hackett to forty-
six months of imprisonment. Hackett filed a timely appeal.
    Our colleague in dissent posits that “Hackett’s challenge
on appeal to his sentence includes a narrower argument than
a generic challenge to the intended loss commentary.
Hackett also argues that the definition of loss [in the
Guideline itself] . . . does not include intended loss that never
takes place, at least in contexts such as that here.” Dissenting
Opinion, p. 25 (internal quotation marks omitted)
(alterations in the original). However, a review of the entire
paragraph from Hackett’s brief confirms that Hackett’s
challenge is indeed to the guideline commentary definition
of loss. The entire paragraph reads:

         This [Kisor v. Wilkie, 

 (2019)]
         makes guideline commentary authoritative
         only when the actual guideline is ‘genuinely
         ambiguous.’ The definition of ‘loss’ may
         vary in some respects, in some contexts, but
         it does not include ‘intended loss’ that never
         takes place, at least in contexts such as that
         here [United States v. Banks, 

         (3d Cir. 2022)] was correct in holding the
         ‘intended      loss’      application     note




9
  Our colleague in dissent takes the position that “the district court did
not refer to the Guidelines’ commentary to § 2B1.1.” See Dissenting
Opinion, p. 24. However, the district court’s use of the phrase “intended
loss” mirrors the language used in Comment Note 3(A).
                      USA V. HACKETT                      11


       impermissibly expands the guideline for
       ‘loss,’ and this Court should follow Banks.

   Read in its entirety the paragraph, selectively quoted
from Hackett’s brief in the Dissenting Opinion,
unmistakenly presents a challenge to the Guideline
Commentary.
    The balance of the Dissenting Opinion relies on an
analysis that was not included in Hackett’s briefing or
mentioned during his oral argument. Accordingly, we
briefly make three additional points in response:

   1. Hackett’s fraudulent scheme was not “contemplated
but unimplemented.” Dissenting Opinion, p. 32. As
previously detailed, Hackett orchestrated a classic “pump-
and-dump” scheme.
    2. Tellingly, the Dissenting Opinion does not cite one
case that has adopted our dissenting colleague’s proferred
interpretation of § 2B1.1 to include only “losses tethered to
a defendant’s substantial actions.” Dissenting Opinion, p.
29.
    3. The Sentencing Commission recently amended
§ 2B1.1 to move the “intended loss” language from the
commentary into § 2B1.1 itself. United States Sentencing
Guidelines Manual, November 1, 2024, § 2B1.1(b)(1),
Notes to Table (A) (“Loss is the greater of actual loss or
intended loss”). We acknowledge that the 2024 amendment
does not apply to Hackett’s sentencing. However, we
include discussion of the amendment because the
amendment supports our position that the intended loss
calculation challenged by Hackett and our dissenting
colleague is not inconsistent with the Guidelines’ “overall
12                      USA V. HACKETT


structure and purpose.”      Dissenting Opinion, p. 31.
Importantly, the Sentencing Commission explained that the
amendment to § 2B1.1 was made due to the “conflicting
court decisions” following the Supreme Court’s decision in
Kisor, and to disavow the Third Circuit’s approach as
articulated in Banks.     See United States Sentencing
Commission Guidelines Manual 2024, Supplement to
Appendix C, November 1, 2024.           This explanation
undermines Hackett’s argument that the intended loss
calculation is incompatible with other provisions of the
Guidelines.
                      II. DISCUSSION
     A. Standard of Review
    Section 2B1.1(b)(1) of the Sentencing Guidelines directs
district courts to increase a defendant’s offense level “[i]f the
loss exceeded $6,500.” It then provides a graduated
schedule for increasing the offense level if the losses exceed
certain amounts. Relevant here, if the loss exceeds more
than $1.5 million, a 16-level enhancement applies. See
U.S.S.G. § 2B1.1(b)(1)(I). The Guidelines do not define
“loss.” But commentary in the Guidelines’ Application
Notes states that “loss is the greater of actual loss or intended
loss.” U.S.S.G. §2 B1.1 cmt. n. 3(A). On appeal, Hackett
argues that under Kisor “intended loss” is not a permissible
interpretation of “loss” as used in the Guidelines.
    The parties disagree on the standard of review that we
should apply to this question. The Government contends
that we should review for plain error. Hackett argues that
we should review de novo. Hackett maintains that he raised
an objection “to the presentence report’s loss calculation and
methodology.” He also maintains that “even [if] there was
not a sufficient objection,” this issue is a question of law and
                        USA V. HACKETT                       13


the government would not be prejudiced if we decide the
issue.
     Under the “contemporaneous-objection rule . . . a party
must inform the court – when the court ruling or order is
made or sought – of the action the party wishes the court to
take, or the party’s objection to the court’s action and the
grounds for that objection. . . .” United States v. Klensch, 

 (9th Cir. 2023) (citations, alteration, and
internal quotation marks omitted). “Sentencing objections
must have a specific substantive basis that provides the
district court with an opportunity to address the error in the
first instance and allows this court to engage in more
meaningful review.” 

 (citation and internal quotation
marks omitted).
    Hackett’s objection to the district court’s loss calculation
was not sufficiently specific to preserve de novo review. See
United States v. Grissom, 

 (9th Cir. 2008).
In his objections to the calculations in the Presentencing
Report (PSR), Hackett did not take issue with using intended
loss as a measure of loss. He instead argued that the
calculation in the PSR of intended loss in the amount of
$4,750,000 was flawed. He maintained that he owned
550,000 shares rather than 950,000 shares of stock, and that
the price should have been less than five dollars per share.
There was thus no objection to use of intended loss, as set
forth in the Application Note, but to the amount arrived at
after application of that loss metric. At the sentencing
hearing, Hackett made the same objection to the
Government’s application of market-share analysis to
calculate intended loss.
    At the sentencing hearing, Hackett likewise did not argue
that intended loss was a legally improper measure of loss,
14                      USA V. HACKETT


whether under Kisor or otherwise. Nor did Hackett clearly
advocate for a loss calculation based on the actual losses of
the victims, as opposed to a loss amount based on “the actual
market price at the time of sale,” which was effectively
another way to calculate loss based on intended loss. The
government had argued in its sentencing memorandum that
actual loss would be difficult to determine because Hackett
“hid his transactions in nominee and/or offshore accounts.”
Hackett did nothing to rebut this statement at the sentencing
hearing.
    And far from maintaining that intended loss was an
improper metric of loss, Hackett’s counsel, if anything,
accepted that intended loss could be an appropriate measure
of loss. Among other things, counsel stated that “there
seems to be a number of different manners in which one can
try to calculate loss,” and that “there are different ways to
calculate the intent to view the intent in these types of deals.”
Counsel’s argument that “[t]he actuality of what happened
here was I think even more important,” referred to counsel’s
central argument at the sentencing hearing: that the district
court should use the actual market price at the time of the
sale to calculate loss, as the government had endorsed in the
cases of Hackett’s co-defendants. But Hackett’s argument
in favor of avoiding disparities among co-defendants is
distinct from the claim he now advances on appeal: that
“intended loss” is not a permissible interpretation of
Guidelines “loss” under Kisor.
    Hackett points out that we have said that “[i]t is claims
that are deemed waived, or forfeited, not arguments.”
United States v. Kirilyuk, 

 (9th Cir.
2022). But we do not think it can be fairly said on this record
that Hackett is advancing the same claim that he did in the
district court. And unlike in Kirilyuk, Hackett at sentencing
                       USA V. HACKETT                       15


accepted the premise that the interpretation of “loss” in the
Guidelines’ Application Notes, which included intended
loss, could be a permissible reading of “loss” in U.S.S.G.
§ 2B1.1(b)(1). Kirilyuk is therefore distinguishable. In
short, because Hackett did not sufficiently object to the
district court’s reliance on the commentary to determine the
loss amount for the enhancement, we conclude that our
review is for plain error. See id.
    Finally, we reject Hackett’s argument that we should
exercise our discretion to review the Kisor argument de
novo. See United States v. McAdory, 

(9th Cir. 2019) (explaining that we are “not limited” to plain
error review when the question is purely legal and the failure
to raise it below would not prejudice the opposing party). As
we explained above, Hackett did essentially nothing to
develop in the district court the factual basis for an actual
loss calculation— a factual, not legal issue. And had Hackett
more properly objected under Kisor, the government could
have offered, and the district court could have considered,
alternative ways of calculating loss. Undertaking that
analysis now, so many years after the original sentencing,
would prejudice the government. For all these reasons, plain
error review remains the most appropriate on this record.
   B. Plain Error Review
    “A trial court commits plain error when (1) there is error,
(2) that is plain . . ., and (3) the error affects substantial
rights.” United States v. Ramirez-Ramirez, 

 (9th Cir. 2022) (citation and alteration omitted). Error
constitutes plain error when it is so obvious that a district
court judge should be able to avoid the error without the
benefit of an objection. See United States v. Klinger, 

 (9th Cir. 1997), as amended (citation omitted).
16                        USA V. HACKETT


“If those conditions are met, we have discretion to notice
such error, but only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Ramirez-Ramirez, 

 (citation and internal
quotation marks omitted).
    Hackett argues that the district court erred by following
the guideline commentary, which defines “loss” as the
“greater of actual loss or intended loss.” § 2B1.1 cmt.
n.3(A).10      According to Hackett, the commentary’s
definition expands “beyond the ordinary meaning of loss.”
Hackett insists that we follow the framework articulated in
Kisor to determine whether § 2B1.1 is genuinely ambiguous
as it pertains to the definition of “loss.” In Hackett’s view,
because “loss” does not include intended loss in its ordinary
meaning, applying intended loss to enhance his sentence
impermissibly expanded the guideline.
    In Kisor, the Supreme Court instructed courts to
“exhaust all the traditional tools of construction” to
determine whether a regulation is “genuinely ambiguous”
after analyzing its “text, structure, history, and purpose.”

 (citation and internal quotation marks
omitted). If after exhausting these “tools of construction,”

 the regulation is not “genuinely ambiguous,” no
deference should be given to the agency’s interpretation of
the regulation. 

10
   Under U.S.S.G. § 2B1.1 cmt. n.3(A)(i), “actual loss” is the
“reasonably foreseeable pecuniary harm that resulted from the offense.”
“Intended loss” is “the pecuniary harm that the defendant purposely
sought to inflict,” including “intended pecuniary harm that would have
been impossible or unlikely to occur (e.g., as in a government sting
operation, or an insurance fraud in which the claim exceeded the
insurance value).” Id. at cmt. n.3(A)(ii).
                        USA V. HACKETT                        17


    We have not previously held that the term “loss” under
§ 2B1.1 is genuinely ambiguous. Rather, we have often
recognized “intended loss” as part and parcel of the plain
meaning of the term “loss.” See United States v. Tulaner,

 (9th Cir. 2008) (“In determining the
amount of the loss, the greater of the actual or intended loss
applies. . . .”) (citing U.S.S.G. § 2B1.1 cmt. n. 3(A)). See
also United States v Popov, 

 (9th Cir.
2014) (“Section 2B1.1 of the Guidelines provides that the
applicable loss is the greater of the actual loss or the intended
loss. . . .”) (citation omitted); United States v. Jenkins, 

 (9th Cir. 2011) (“Typically, loss is the greater
of actual loss or intended loss . . .”) (citation omitted).
    We concluded in United States v. Castillo, 

 (9th Cir. 2023), that the analysis in Kisor must be
conducted when applying Stinson v. United States, 

 (1993). In Stinson, the Supreme Court held that
Sentencing Guidelines commentary “that interprets or
explains a guideline” is “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” 

.
But Castillo held that “[the] more demanding deference
standard articulated in Kisor applies to the Guidelines
commentary.” Castillo, 

.
    In a recent opinion, decided before Castillo, we applied
Stinson to determine that a $500-per-credit card loss
multiplier set forth in the commentary to § 2B1.1 is
“inconsistent with, or a plainly erroneous reading of” “loss”
under that Guideline. Kiriliyuk, 

 (citation
omitted). We clarified that, while “dictionary definitions for
‘loss’ may vary, . . . [n]o reasonable person would define the
loss from a stolen credit card as an automatic $500 rather
than a fact-specific amount.” 

 (citation, alteration,
18                        USA V. HACKETT


and internal quotation marks omitted). We specifically held
that “loss” cannot mean a pre-determined, contrived amount
with no connection to the crime committed. 

 (citation and
internal quotation marks omitted). Rather, Ҥ 2B1.1 is
driven by the amount of loss caused by the crime.” Id.
(citation and internal quotation marks omitted) (emphasis in
the original). We determined that application of the “$500-
per-card multiplier” as provided in the guideline
commentary “operate[d] as an enhanced punishment, rather
than an assessment of ‘loss’ tied to the facts of the case.” Id.
(emphasis in the original).11
    In Kiriliyuk, we did not specifically address whether the
commentary’s definition of “loss” as including both actual
and intended loss impermissibly expanded that term as a
matter of law. Id. at 1138. But, the opinion did reference
both actual and intended loss. See id. (“As determined by
the Probation Office, Kiriliyuk’s conspiracy involved $1.4
million in actual losses or $3.4 million in intended
losses. . . .”).  This inclusion is consistent with our
established practice of referencing both actual loss and
intended loss when interpreting the term “loss.” Tulaner,

; Popov, 

; Jenkins, 

.
    In sum, we have not grappled with the effect of the Kisor
decision on the deference we have afforded the definition of
“loss” in the guideline commentary. We decline to do so
now because any error was not clear or obvious given our
precedent recognizing both actual and intended loss, and
because there is a lack of consensus among the circuit courts
on this issue. See United States v. Ghanem, 

,

11
  Hackett has never argued that the assessment of loss in his case was
not “tied to the facts of the case.” 

                       USA V. HACKETT                       19


1131 (9th Cir. 2021) (“[An error] cannot be plain if there is
no controlling authority on point and where the most closely
analogous precedent leads to conflicting results.”) (citations
and internal quotation marks omitted).
    Our sister circuits have varied in their determinations of
whether Kisor permits application of the definition of “loss”
set forth in the commentary. In Banks, 55 F.4th at 257, the
Third Circuit reasoned that “[t]he ordinary meaning of ‘loss’
in the context of § 2B1.1 is ‘actual loss.’” The Third Circuit
focused on the absence of the term “intended loss” in the
Guideline as an indication “that the Guideline does not
include intended loss.” Id. (footnote reference omitted). The
Third Circuit also relied on dictionary definitions of the term
“loss.” See id. at 257-58. The Third Circuit did, however,
acknowledge that “loss” could mean “intended loss” when
taken “in context.” Id. at 258. However, the Third Circuit
observed that “in the context of a sentence enhancement for
basic economic offenses, the ordinary meaning of the word
loss is the loss the victim actually suffered.” Id. (footnote
reference and internal quotation marks omitted). The Third
Circuit “accord[ed] the commentary no weight” because in
the Third Circuit’s view, “the commentary expands the
definition of loss” by including intended loss. Id. (internal
quotation marks omitted).
    In contrast, the Sixth Circuit deferred to the
Commission’s interpretation of “loss” because the term
“[fell] within [the] zone of ambiguity” of § 2B1.1.” United
States v. You, 

 (6th Cir. 2023) (internal
quotation marks omitted). The Sixth Circuit concluded that
“the definition of loss has no single right answer,” and
relying solely on the definition of the word “loss” does not
sufficiently engage in the Kisor analysis. 

 (citation
omitted). The Sixth Circuit disagreed with the Third
20                     USA V. HACKETT


Circuit’s analysis in Banks. The Sixth Circuit criticized
Banks as “attempt[ing] to impose a one-size-fits all
definition” “without consulting the traditional tools of the
commentary’s structure, history, and purpose.” 

(citations and internal quotation marks omitted). The Sixth
Circuit explained that the inclusion of intended loss is
consistent with the Guidelines’ purpose of “assess[ing] the
seriousness of the offense and the defendant’s relative
culpability.” 

 (citations and internal quotation marks
omitted). The Sixth Circuit also reasoned that excluding
intended loss would result in “vastly different sentences for
similarly culpable defendants.” 

. The Sixth Circuit
expressly linked its analysis to the defendant’s situation,
observing that “[f]or someone like [the defendant], who was
arrested before causing actual loss, including losses that she
intended is a reasonable way to gauge her culpability.” 

    One month later, in United States v. Smith, 

,
798 (6th Cir. 2023), the Sixth Circuit reiterated that the term
“loss” is “ambiguous.” In Smith, the Sixth Circuit undertook
to further explain why the term “loss” is ambiguous. 

. The Sixth Circuit referenced “Kisor’s demand that [a
court] look at the whole structure of the Guidelines” in
assessing ambiguity. 

. Included within that
structure is Ҥ 1B.1.3, which is the relevant-conduct
guideline.” Id. The Sixth Circuit emphasized that “[t]he
relevant-conduct guideline instructs the court to consider all
harm that resulted from the acts and omissions of the . . .
undertaken criminal activity and all harm that was the object
of such acts and omissions.” Id. (citation, alteration, and
internal quotation marks omitted) (emphasis in the original).
The Sixth Circuit observed that “[the] use of the term ‘harm’
in the relevant-conduct guideline clearly contemplates harm
that actually occurred and harm that the person intended to
                         USA V. HACKETT                          21


cause.” Id. (internal quotation marks omitted) (emphasis in
the original). The court explained that “[t]he context of the
Guidelines therefore renders the term ‘loss’ in [§ 2B1.1]
ambiguous.” Id.
     The Tenth Circuit resolved a similar issue in United
States v. Maloid, 

, 808 (10th Cir. 2023), by
focusing on whether Kisor overruled Stinson. The Tenth
Circuit explicitly held that “[t]he Supreme Court has not
abrogated Stinson or the deference we have routinely given
the Guidelines’ commentary.” 

.12 According to
the Tenth Circuit, Kisor is a “middle-ground approach to
govern the relationship between the Judiciary and executive
agencies.” 

. The court observed “that Kisor had
everything to say about executive agencies and precious
little about the Sentencing Commission,” which is “a critical
distinction.” 

 The court emphasized that the Commission
is different from executive agencies because “it speaks as an
agent of the Judiciary to help judges properly sentence
defendants.” 

. In contrast, agencies address
“policy concerns as agents of the President.” 

 (citation
and internal quotation marks omitted).
    The First, Fourth, and Eleventh Circuits have addressed
under plain error review whether “loss” in § 2B1.1
encompasses intended loss. In United States v. Gadson, 

 (1st Cir. 2023), the First Circuit determined that
even if Kisor abrogated Stinson, no binding precedent
indicated that the district court’s reliance on the Guideline
commentary’s definition of the term “loss” was plainly

12
  In an unpublished opinion, the Tenth Circuit concluded that Maloid
foreclosed the argument that the term “loss” in § 2B1.1 encompasses
only “actual loss.” See United States v. Foreman, No. 22-1255, 

 at *1-*2 (10th Cir. Feb. 12, 2024).
22                     USA V. HACKETT


erroneous. The First Circuit observed that the Banks
decision did not establish plain error because the Third
Circuit had “expressed no opinion as to whether its
interpretation was ‘clear or obvious’” and had indicated that
its holding applied only “in certain contexts.” 

. The
First Circuit also reasoned that, like the Ninth Circuit, it
“regularly” used both actual loss and intended loss to
calculate “the harm (both actual and intended) inflicted by
the fraudster’s nefarious activities, and that intended loss is
frequently a better measure of culpability than actual loss.”

 (citations and internal quotation marks omitted).
    In an unpublished disposition, the Fourth Circuit took a
similar approach, determining that the district court did not
plainly err by affording deference to the guideline’s
commentary, because there is no “settled law of the Supreme
Court or [the] circuit.” United States v. Limbaugh, No. 21-
4449, 

 at *4 (4th Cir. Jan. 6, 2023) (citation
omitted). The Fourth Circuit declined to “say that the district
court committed a clear or obvious error in treating as valid
longstanding Guidelines commentary to which the
defendant did not object.” 

 (internal quotation marks
omitted). The Fourth Circuit concluded that circuit authority
provides no “robust consensus” that would “allow [the court]
to label as plain any error committed here.” 

 (citation and
internal quotation marks omitted).
    Similarly, the Eleventh Circuit held that its precedent
“did not specifically and directly resolve the question of
whether § 2B1.1’s definition of loss is ambiguous.” United
                          USA V. HACKETT                           23


States v. Verdeza, 

 (11th Cir. 2023)
(alteration and internal quotation marks omitted).13
    After reviewing these cases, we feel comfortable in our
conclusion that there is no consensus among the circuits on
this issue.
                     III. CONCLUSION
    The district court did not plainly err by relying upon the
definition of “loss” set forth in the commentary to § 2B1.1.
Because of the unsettled nature of the law on this issue, any
error was not clear or obvious. See United States v.
Thompson, 

 (9th Cir. 1996) (“[W]e do not
see how an error can be plain error when the Supreme Court
and this court have not spoken on the subject, and the
authority in other circuits is split.”) (citation omitted).
    AFFIRMED.




13
   The Eleventh Circuit had previously ruled that Kisor applies to the
Commission’s commentary. United States v. Dupree, 

 (11th Cir. 2023) (en banc) (“Kisor’s clarification of Auer [v.
Robbins, 

 (1997)] deference applies to the Guidelines and
its commentary.”).
24                         USA V. HACKETT


BERZON, Circuit Judge, dissenting:

    The majority opinion misconstrues both the procedural
history of this case and the meaning of the relevant
Sentencing Guideline. 1 I would reverse, vacate Hackett’s
sentence, and remand to the district court for resentencing.
                                   I.
    On appeal, Hackett challenges a loss-based sentence
enhancement under Guideline § 2B1.1. The district court
calculated a loss of $2,200,000 by multiplying 550,000 stock
shares by a price of $4 per share, which triggered “an
adjustment of 16 levels upward for the intended loss amount
in this case.” The court found that Hackett “at one time held
550,000 shares” of First Harvest, considering “only those
shares that [Hackett] had, not the ones that [he] talked about
acquiring.” And it determined $4 as the “target price of the
pump aspect” by “credit[ing] the conversation” in which
Hackett “discussed the 4 to 5 dollar per share target with
respect to the pump aspect of this scheme.” In pronouncing
the sentence, the district court did not refer to the Guidelines’
commentary to § 2B1.1. See Maj. Op. at 23 (“The district
court . . . rel[ied] upon the definition of ‘loss’ set forth in the
commentary to § 2B1.1.”).



1
  As the majority notes, the relevant Guideline has now been changed,
by moving the commentary regarding “intended loss” into the Notes to
the loss amount table included in the Guideline. See Maj. Op. at 4–5 n.1;
U.S.S.G. App. C, Amdt. 827 (Nov. 1, 2024). All references in this dissent
to the Guideline and the commentary are to the version at the time of
sentencing (“the Guideline”). There has been no change in the Guideline
as to the issue addressed in this dissent, except that the commentary I
rely on later, see pp. 29–30, infra, is now in the Notes.
                        USA V. HACKETT                        25


    The majority opinion considers Hackett’s challenge as
one solely to the validity of the Guidelines’ commentary
stating that “loss is the greater of actual loss or intended
loss.” U.S.S.G. § 2B1.1 cmt. 3(A). And the majority reviews
that challenge for plain error, reasoning that he objected to
the amount of loss calculation rather than to the district
court’s deference to the guideline commentary on the
definition of intended loss. Maj. Op. at 13. But Hackett’s
challenge on appeal to his sentence includes a narrower
argument than a generic challenge to the “intended loss”
commentary. Hackett also argues that the “definition of
‘loss’ [in the Guideline itself] . . . does not include ‘intended
loss’ that never takes place, at least in contexts such as that
here.” The majority’s suggestion that, on appeal, Hackett
only “specifically challenges the district court’s reliance on
the commentary to United States Sentencing Guidelines
(U.S.S.G.) § 2B1.1” is thus incorrect. Maj. Op. at 4.
    At sentencing, Hackett preserved a context-specific
objection to the district court’s broad construction of “loss”
in § 2B1.1. In his objections to the Presentence Report’s
(PSR) Guidelines calculations, Hackett challenged a
proposed offense-level increase based on an intended loss
figure of $4,750,000. Hackett’s written objection to the PSR
argued that “the conclusion in the PSR of an intended loss of
$4,750,000 is flawed,” objecting to the use of “some
amorphous hopeful price in the future” to calculate the loss
amount rather than the “market price at the time of sale.”
    At his June 2022 sentencing hearing, Hackett renewed
his challenge to the PSR’s method of calculating and
imputing a loss amount to him. He emphasized that “there
are different ways to calculate the intent or to view the intent
in these types of deals, because there may have been
discussions, but those discussions never necessarily were
26                     USA V. HACKETT


anything more than mere discussions. The actuality of what
happened here was[,] I think[,] even more important.”
Hackett maintained that the $4 price discussed was too
speculative to be used in loss calculations because no
substantial action was taken toward selling at that price:

       I will address your $4 calculation
       specifically. The problem is that these
       conversations all occur before anything is
       really ever kind of formalized, or for that
       matter really arrived at by these defendants.
       Because there is all sorts of different
       discussions. Budhu is talking about $2, and
       then they talk about $4, and then this
       discussion about $5.

As a result of this tentativeness and vacillation, Hackett
further argued,

       it could be fairly stated that those numbers
       that were thrown out [in discussions] weren’t
       even numbers that people were really
       planning on or intending. They were just
       discussing [those prices] as mere
       opportunities or possibilities. And I think
       there is a difference between mere
       opportunities and possibilities and something
       that was, in fact, intended by the parties.

(Emphasis added.)
    Hackett’s objection in district court thus fairly previewed
the narrower argument he urges—if briefly and somewhat
opaquely—on appeal: Even if “intended loss” is properly
                            USA V. HACKETT                                27


included in the loss calculation, the sentence enhancement
based on loss does not apply in the current context.
    Hackett’s challenge to the district court’s loss calculation
emphasized that even intended loss must be predicated on
the “actuality of what happened”—that is, actions
performed, not actions contemplated but abandoned.
Regardless of whether Hackett preserved a wholesale
challenge to any inclusion of intended loss in § 2B1.1
calculations, I would hold that he has certainly preserved a
narrower objection urging a substantial-action threshold to
determine intended loss. As to that argument, if not to the
broader one, de novo review of his legal position is
appropriate. 2 Addressing it, I would hold that the argument
is potentially meritorious, although its application to this
case cannot be determined without further district court
consideration.
                                    II.
    Section 2B1.1(b)(1) provides that “[i]f the loss exceeded
$6,500,” a defendant’s offense level should be increased as
the Guideline indicates. U.S.S.G. § 2B1.1(b)(1). For a loss
of “[m]ore than $1,500,000,” a 16-level increase applies. Id.
As the language of the Guideline indicates and as explicated
by the commentary, the attributed loss does not include loss
never realized because of a failure to carry out substantial
action toward executing an inchoate plan. As that

2
  Like the majority, I do not address de novo whether the entire concept
of “intended loss” is inconsistent with § 2B1.1, applying Kisor v. Wilkie,

 (2019), and United States v. Castillo, 

 (9th Cir.
2023). I agree that that issue was not raised in the district court and so is
reviewable only for plain error. On my approach to the case, there is no
reason to conduct that plain error review, as Hackett is entitled to
resentencing in any event.
28                     USA V. HACKETT


interpretation was not applied by the district court, Hackett
should be resentenced applying the proper understanding of
the Guideline and commentary, read together.
    First, the text of the Guideline itself is straightforward.
Section 2B1.1’s reference to situations where “the loss
exceeded . . . $1,500,000” does not sweep in loss attributable
to plans an individual never substantially implemented.
    Section 2B1.1 “does not define ‘loss.’ In interpreting the
Guidelines, we apply the ordinary tools of statutory
interpretation and look to the plain meaning of its terms. See
Kisor v. Wilkie, 

 (2019). Such tools
include ‘consult[ing] dictionary definitions, which we trust
to capture the common contemporary understandings of the
word.’” United States v. Kirilyuk, 

 (9th
Cir. 2022) (citations omitted). The Guideline’s use of the
past tense—“loss exceeded”—underscores that § 2B1.1’s
plain language refers to losses that are at least readily
quantifiable based on a defendant’s concrete actions. See
Loss, Black’s Law Dictionary (12th ed. 2024) (defining
“loss” as “the disappearance or diminution of value”); id.
(“When the loss is a decrease in value, the usual method of
calculating the loss is to ascertain the amount by which a
thing’s original cost exceeds its later selling price.”).
    Although “‘loss’ can have a range of meanings,” we have
recognized that it “cannot mean a . . . contrived amount with
no connection to the crime committed.” Kirilyuk, 

. In Kirilyuk, we rejected the imposition of an
automatic assessed loss of $500 per stolen credit card
number rather than an amount tethered to the facts of a
particular offense. See 

. Here, the same
insistence that sentence enhancements must bear a
“connection to the crime committed,” 

, should
                        USA V. HACKETT                       29


make us wary of reading “loss” so broadly as to reach
intended loss predicated on actions a defendant discussed but
never took steps to perform.
     Second, the history of § 2B1.1 also supports linking
“loss” to concrete action by a defendant in furtherance of an
offense. The 1987 Guidelines provided for a sentence
enhancement pegged to “the value of the property taken,”
with a tiered table of values specified under the heading of
“[l]oss.” U.S.S.G. § 2B1.1(b)(1) (1987). That is, the original
framing of § 2B1.1 understood “loss” as an amount
attributable to a defendant’s actions, viz. taking property.
See id.; see also U.S.S.G. § 2B1.1(b)(1) (Jan. 1988). The
June 1988 Guidelines replaced “the value of the property
taken” with, simply, “the loss,” which language (still also
reflected in the Guideline’s table heading) endured at the
time of sentencing. U.S.S.G. § 2B1.1(b)(1) (June 1988).
    Third, the commentary, read as a whole, is in this respect
consistent with the Guideline’s text, confirming that “loss”
in § 2B1.1 refers at least to losses tethered to a defendant’s
substantial actions. The commentary’s discussion of
“[i]ntended loss” includes two examples of “intended
pecuniary harm that would have been impossible or unlikely
to occur.” U.S.S.G. § 2B1.1 cmt. 3(A)(ii). In both “a
government sting operation” and “an insurance fraud in
which the claim exceeded the insured value,” a defendant
takes substantial action to effectuate a loss, but the loss does
not occur due to third-party actions or policies beyond the
defendant’s control. Id. Hackett, in contrast, maintains that
he took no similar action to effectuate the loss for which the
district court held him responsible. His one-time discussion
of selling at $4 per share—the price the district court used to
calculate total loss—could turn out to be far afield from a
nearly complete transaction that would have occurred but for
30                     USA V. HACKETT


police deception or an insurance maximum. Whether it is or
not would depend on factors such as whether Hackett tried
but failed to sell his shares at $4 per share, or whether, in
contrast, he never tried to implement the inchoate plan and
decided instead—as his district court challenge suggested—
to sell at the market price on a particular day, whatever that
price was.
    More broadly, the commentary to § 2B1.1 indicates that
“loss” in the Guideline only sweeps in “[i]ntended loss” that
a “defendant purposely sought to inflict.” Id. (emphasis
added). “Sought” suggests doing something toward an end,
not just talking about it. Read alongside the examples above,
the commentary’s requirement of intentional pursuit lends
further support to a reading of § 2B1.1 that enhances a
defendant’s sentence based only on losses he proactively
attempted to generate.
     Fourth, this reading of “loss” coheres with criminal
law’s broader approach to inchoate crimes. The law of
attempt generally emphasizes that legal liability for a
criminal attempt requires that concrete acts be taken toward
committing the underlying offense. That is, “[t]o constitute
an attempt, the mere intent to commit a crime is not enough;
the performance of an act is also necessary,” to “distinguish
situations of ‘preparation,’ not deserving of criminal
punishment, from situations of genuine attempt.” 1
Wharton's Criminal Law § 7:5 (16th ed. 2023); see id.
(listing actions that support attempt liability). In the same
vein, our court has long recognized that criminal liability
attaches only when some substantial step has been taken
toward committing a crime, with an inchoate plan
insufficient to trigger liability. See United States v.
Saavedra-Velazquez, 

 (9th Cir. 2009)
(noting that “the definition [of attempt] at common law . . .
                       USA V. HACKETT                       31


requires a ‘substantial step towards committing the crime’”
(citation omitted)); United States v. Buffington, 

 (9th Cir. 1987) (requiring “conduct constituting
a substantial step toward commission of the crime”); see also
United States v. Gracidas-Ulibarry, 

(9th Cir. 2000) (collecting sources).
    Fifth, looking to the Guidelines’ overall structure and
purpose, other provisions make clear that sentencing must
rest on injuries attributable to actions actually undertaken—
not merely contemplated but abandoned—by a defendant.
Section 1B1.3’s discussion of relevant conduct provides that
a defendant’s offense level “shall be determined on the basis
of . . . all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all harm
that was the object of such acts and omissions.” U.S.S.G.
§ 1B1.3(a)(3) (emphasis added). Subsections (a)(1) and
(a)(2) sweep in “all acts and omissions committed . . . or
willfully caused by the defendant” and, for joint offenses,
“all acts and omissions of others . . . that occurred” within
certain parameters. U.S.S.G. § 1B1.3(a)(1), (a)(2)
(emphases added). This language, relied on by the
government as support for the proposition that “loss”
includes “intended loss,” makes clear that for Guidelines
purposes an “object” counts as harm only if a concrete act or
omission with that object occurred, not if it was only
contemplated. These provisions support a consistent reading
of the Guidelines in which sentencing is based on harms,
including losses, attributable to a defendant’s actual actions.
The commentary to § 1B1.3 confirms this understanding of
“harm.” One note refutes the idea that the Guidelines’
conception of “harm” includes those that have not been
realized but were only risked, stating that “[u]nless clearly
indicated by the guidelines, harm that is merely risked is not
32                      USA V. HACKETT


to be treated as the equivalent of harm that occurred.”
U.S.S.G. § 1B1.3 cmt. 6(B).
     Sixth, the fact patterns in other cases on intended loss are
instructive in parsing § 2B1.1. The majority opinion invokes
case law from other circuits to buttress its analysis. But most
of the cases on which it relies do not match Hackett’s
situation as he portrays it. Those cases permit attributing
intended loss to a defendant in situations where that
defendant took substantial steps toward carrying out an
offense directed at causing a loss of a certain amount, but
that amount of loss did not materialize due to circumstances
beyond the defendant’s control. They therefore underscore
that § 2B1.1’s use of “loss” does not include amounts
attributable to contemplated but unimplemented plans.
    For example, in Banks, the Fourth Circuit determined
that “Banks’s plot was to open Gain Capital [Group]
accounts and make electronic deposits into those accounts,
but his deposits were drawn on bank accounts with
insufficient funds. He then tried to withdraw funds from
these accounts, with the goal being to complete the
withdrawals/transfers before the lack of supporting funds
could be detected.” United States v. Banks, 

, 251
(3d Cir. 2022) (internal quotation marks omitted). The
defendant “made fraudulent deposits of $324,000 and
unsuccessfully executed 70 withdrawals/transfers totaling
$264,000” with Gain, although Gain “suffered no actual
loss” and “did not transfer a single dollar to Banks.” 

    Similarly, the Sixth Circuit in Smith held that the
“intended loss” amount in a scheme “defraud[ing] banks and
their customers” by misusing account holders’ personal
information included the actual losses “plus the funds the
conspirators tried to steal but were unsuccessful at
                           USA V. HACKETT                             33


obtaining.” United States v. Smith, 

, 792-93 (6th
Cir. 2023). And in Gadson, the First Circuit explained that
the “coconspirators obtained the names and personal
information . . . of real individuals, and then used that
information to apply for [specific] loans for themselves in
those persons’ names, with no intention of repaying the
loans.” United States v. Gadson, 

 (1st Cir.
2023). 3 Finally, the Eleventh Circuit in Verdeza described
the intended loss of $3.4 million as representing the total
amount two clinics billed to an insurer as part of a fraudulent
healthcare operation, although the insurer “grew suspicious
. . . [and] denied the claims.” United States v. Verdeza, 

 (11th Cir. 2023).
    In each of these instances, it appears, the defendant took
substantial actions that were meant to achieve the amount of
intended loss attributed, but was thwarted by external
circumstances or their own errors.
                                 ***
    I am convinced that, considered along with the
commentary, the Guideline’s reference to “loss” is not
ambiguous as to the contextual issue Hackett preserved on
appeal. See Kisor, 

. Section 2B1.1’s use of
“loss” clearly excludes intended losses attributable only to a
defendant’s contemplated but unperformed actions. We do
not punish thought crimes and so cannot rely for sentencing

3
  “To support the loan applications, Gadson and his coconspirators also
created and used fraudulent supporting documents, such as counterfeit
driver’s licenses, pay stubs, and lease agreements.” United States v.
Gadson, 

 (1st Cir. 2023). The opinion does not contain
more information about how the intended loss was calculated based on
the factual circumstances or how “the district court here determined that
intended loss was greater than actual loss.” 

.
34                     USA V. HACKETT


purposes on evidence of an intent never manifested by
substantial action.
                             III.
    As to how my interpretation of Section 2B1.1 applies
here: The factual record in this case is, unfortunately, murky.
In calculating the loss amount under § 2B1.1, the district
court attributed 550,000 total shares to Hackett, although it
is not immediately clear whether Hackett took steps to
effectuate the sale of all of those various shares. My reading
of the record suggests that Hackett did pump the value of
First Harvest stock and then sell thousands of shares of that
stock at the resulting elevated market price (which was
higher than it would have been absent fraudulent pumping).
Later, there was a near-complete loss of value in the
remaining First Harvest stock because the market for that
stock was flooded with shares for sale. But the underlying
record is not sufficiently developed to provide a full factual
account of Hackett’s relevant conduct or of the connection
between such conduct and the prices and total shares the
district court attributed to him in determining a $2,200,000
loss and thus a 16-level enhancement under § 2B1.1.
    Various questions remain: How many of the 550,000
shares attributed to Hackett were sold on the open market
versus through call rooms versus via other means versus
never sold at all? At what price was each of those shares
ultimately sold? Who had control over which blocks of stock
at which points in time? What substantial actions did Hackett
take—not just consider—with respect to selling the shares
under his control as part of his offense conduct? And what
led Hackett not to sell his shares at the price he discussed on
the phone call: his own decision to sell sooner at a different
price, market forces beyond his control that foreclosed the
                       USA V. HACKETT                       35


contemplated price, or some other factor? The answers to
these important questions, which bear directly on how much
loss the Guidelines should attribute to Hackett, are not
evident in the record and briefing before us.
    “[A]s a general matter, if a district court errs in
sentencing, we will remand for resentencing on an open
record—that is, without limitation on the evidence that the
district court may consider.” United States v. Matthews, 

 (9th Cir. 2002) (en banc). Because the answers
to the above questions are not available at this juncture, I
would remand the case on an open record so that the district
court can apply the correct interpretation of “loss” in § 2B1.1
when resentencing Hackett, after conducting any necessary
additional fact-finding.