The record indicates that the district court did not rely on counts that had been dismissed pursuant to a plea agreement; it used only the losses associated with the two counts contained in the superseding information. Thus, even if we assume that United States v. Fine, 946 F.2d 650, 651-52 (9th Cir. 1991), rehearing granted, 963 F.2d 1258 (9th Cir. 1992), and United States v. Castro-Cervantes, 927 F.2d 1079, 1081-82 (9th Cir. 1991) (amended opinion), are still valid authorities, they do not apply here. In both of those cases, the district courts included losses associated with charges dismissed pursuant to a plea agreement in their calculations of the total losses caused by the defendants' frauds.

Gallegos also cites decisions of this circuit holding that sentences from cases consolidated for sentencing are related under section 4A1.2. See United States v. Bachiero, 969 F.2d 733, 734 (9th Cir. 1992); United States v. Chapnick, 963 F.2d 224, 228 (9th Cir. 1992); United States v. Fine, 946 F.2d 650, 653-54 (9th Cir. 1991), superceded in nonpertinent part, 975 F.2d 596 (9th Cir. 1992) (en banc); see also United States v. Delvecchio, 920 F.2d 810, 812-13 (11th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 156, 121 L.Ed.2d 106 (1992). While acknowledging that these cases interpret pre-1991 versions of Note 3, Gallegos nevertheless urges us to follow them.

The district court imposed a sentence of 30 months, based on an offense level of 18. The sentence was consistent with the $4.3 million figure described in the plea agreement. Appellant's first argument is that this court's panel decision in United States v.Fine, 946 F.2d 650 (9th Cir. 1991), prohibits the district court from relying on dismissed counts in determining the applicable guideline range. However, this court has since ruled en banc that the relevant conduct provisions allow the sentencing judge to take into account groupable offenses which were charged but to which the defendant has not pleaded guilty. United States v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc).

The district court's determination will not be disturbed `unless it is without foundation.'" United States v. Fine, 946 F.2d 650, 652 (9th Cir. 1991) (citation omitted) (emphasis in original), rev'd on other grounds, 975 F.2d 596, 598 n. 1 (9th Cir. 1992) (en banc). Since there were no facts in dispute, the district court satisfied its responsibility to make findings by adopting the recommendations in the Presentence Report. United States v. Marquardt, 946 F.2d 283, 285 (9th Cir. 1991).

Smith appeals the district court's interpretation and application of the Sentencing Guidelines. Because one of the issues presented in this case — interpretation of "relevant conduct" under the Sentencing Guidelines — was one of the issues briefed for en banc consideration in United States v. Fine, 946 F.2d 650 (9th Cir. 1991), reh'g en banc granted, 963 F.2d 1258 (9th Cir. 1992), we deferred submission of this appeal pending the resolution of Fine. Fine was issued on September 14, 1992. United States v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc).

Although we rely on the amended guidelines, we note that the Ninth Circuit has recently overruled United States v. Gross, 897 F.2d 414 (9th Cir. 1990), the only case upon which Elmendorf relied. United States v. Anderson, 942 F.2d 606, 614 n. 5 (9th Cir. 1991) (indicating that Gross should not be followed); United States v. Palmer, 946 F.2d 97, 99 (9th Cir. 1991) (overruling Gross); United States v. Fine, 946 F.2d 650, 653-654 (1991) (same), rehearing en banc granted, 963 F.2d 1258 (9th Cir. 1992). In addition, two decisions of this Court concerning relatedness decided after Elmendorf contain language that seems inconsistent with that case.

The Ninth Circuit has, however, held it to be unfair for a district court to enhance a sentence based on charges dismissed pursuant to a plea agreement. United States v. Fine, 946 F.2d 650, 652 (9th Cir. 1991), reh'g en banc granted, 963 F.2d 1258 (9th Cir. 1992). Cases from this circuit include United States v. Lawrence, 915 F.2d 402, 406-08 (8th Cir. 1990); United States v. Hoelscher, 914 F.2d 1527, 1544 (8th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991); United States v. Streeter, 907 F.2d 781, 791 (8th Cir. 1990); United States v. Johnson, 906 F.2d 1285, 1290-91 (8th Cir. 1990); United States v. Sleet, 893 F.2d 947, 948-49 (8th Cir. 1990); United States v. Cohoon, 886 F.2d 1036, 1037-38 (8th Cir. 1989) (per curiam); United States v. Allen, 886 F.2d 143, 144-46 (8th Cir. 1989); United States v. Ehret, 885 F.2d 441, 445 (8th Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990); United States v. Williams, 879 F.2d 454, 457 (8th Cir. 1989); United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir. 1989); United States v. Mann, 877 F.2d 688, 690 (8th Cir. 1989).

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.

Because we vacate Robins's sentence on this ground, we do not reach Robins's alternative argument that the district court incorrectly enhanced his base offense level by relying on the amount of drugs covered by counts dropped pursuant to the plea agreement. Cf. United States v. Fine, 946 F.2d 650 (9th Cir. 1991), reh'g granted, 963 F.2d 1258 (1992). Sentence VACATED. Case REMANDED for resentencing.

See United States v. Gross, 897 F.2d 414, 416-17 (9th Cir. 1990). Whether or not that decision is sound (it has been discarded in the Ninth Circuit, see United States v. Fine, 946 F.2d 650, 653-54 (1991), reh'g in banc granted, 963 F.2d 1258 (9th Cir. 1992), following an in banc reversal of its premise that commentary may be disregarded, see United States v. Anderson, 942 F.2d 606, 613-14 (9th Cir. 1991) (in banc)), the broad sweep of the "consolidation for sentencing" category indicates that the Commission is taking a fairly generous view of what constitutes "related" sentences for purposes of career offender sentencing and suggests that the three categories are not exclusive. If the three categories in note 3 were deemed exclusive, some very odd consequences would result.