United States v. James B.A. Niven, 952 F.2d 289 (9th Cir. 1991). · Go Syfert
United States v. James B.A. Niven, 952 F.2d 289 (9th Cir. 1991). Cases Citing This Book View Copy Cite
“he court may aggregate the amount of losses in calculating the offense level for the guidelines sentence, so long as it imposes concurrent sentences for the pre-guidelines and guidelines offenses.”
124 citation events (21 in the last 25 years) across 14 distinct courts.
Strongest positive: United States v. Mark Douglas Zubick (ca9, 1995-03-23)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Mark Douglas Zubick (3×) also: Cited as authority (rule), Cited "see, e.g."
9th Cir. · 1995 · quote attribution · 1 verbatim quote · confidence high
he court may aggregate the amount of losses in calculating the offense level for the guidelines sentence, so long as it imposes concurrent sentences for the pre-guidelines and guidelines offenses.
cited Cited as authority (rule) Amended September 5, 2017 State of Iowa v. Eddie Tipton
Iowa · 2017 · confidence medium
Gelais, 952 F.2d 90 , 96–97 (5th Cir. 1992); United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
discussed Cited as authority (rule) State of Iowa v. Eddie Tipton (2×)
Iowa · 2017 · confidence medium
Gelais, 952 F.2d 90, 96-97 (5th Cir. 1992); United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
discussed Cited as authority (rule) State v. Kay
Utah · 2015 · confidence medium
See, e.g., United States v. Bennett, 765 F.3d 887, 894 (8th Cir.2014); United States v. Siddons, 660 F.3d 699, 705 (3d Cir.2011); United States v. Gray, 367 F.3d 1263, 1269-70 (11th Cir.2004); United State v. Crossley, 224 F.3d 847, 859 (6th Cir.2000); United States v. Kimler, 167 F.3d 889 , 894 n. 6 (5th Cir.1999); United States v. Barger, 178 F.3d 844, 847 (7th Cir.1999); United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390 , 1398 (4th Cir.1993); United States v. Eisen, 974 F.2d 246 , 263-64 (2d Cir.1992); United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991); United State…
discussed Cited as authority (rule) United States v. Wahid
9th Cir. · 2010 · confidence medium
Before November 1, 1990, the Commentary provided that “if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score.” See United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991).
discussed Cited as authority (rule) United States v. WR Grace
D. Mont. · 2006 · confidence medium
The Ninth Circuit endorsed the opposite approach in United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991), overruled on other grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir.1996).
discussed Cited as authority (rule) United States v. Smith
4th Cir. · 2004 · confidence medium
Under Toussie, however, whether an offense is continuing "turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue." United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991).
discussed Cited as authority (rule) United States v. Alfred Smith (2×)
4th Cir. · 2004 · confidence medium
Under Toussie , however, whether an offense is continuing "turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue." United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991).
cited Cited as authority (rule) United States v. Fitch
9th Cir. · 2002 · confidence medium
See United States v. Allen, 153 F.3d 1037, 1040-41 (9th Cir.1998); United States v. Lee, 995 F.2d 887, 889 (9th Cir.1993); United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Michael A. Yashar
7th Cir. · 1999 · confidence medium
The dissent stated that it could only be so considered if it met the Toussie test, in which “ ‘the analysis turns on the nature of the substantive offense, not on the specific characteristics of the charged conduct.’” Id. (emphasis in original) (citing United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Lori Blitz, AKA Jackie Cross, United States of America v. Jerry Pierre Sainte Marie, United States of America v. Kristen Leon Hall, AKA Leon Hall, United States of America v. Jacob Giffin, United States of America v. Norman Hefferan, AKA Bill Edwards AKA Norm Craig, United States of America v. Harold Larsen
9th Cir. · 1998 · confidence medium
See United States v. Nash, 115 F.3d 1431, 1441 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1054 , 140 L.Ed. 117 (1998); United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991); Nelson v. United States, 178 F.2d 458, 458-59 (9th Cir.1949); see also United States v. St.
discussed Cited as authority (rule) United States v. Blitz
9th Cir. · 1998 · confidence medium
See United States v. Nash, 115 F.3d 1431, 1441 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1054 , 140 L.Ed. 117 (1998); United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991); Nelson v. United States, 178 F.2d 458, 458-59 (9th Cir.1949); see also United States v. St.
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Joseph v. NASH, Defendant-Appellant
9th Cir. · 1997 · confidence medium
This court has held that there is a presumption against finding continuing violations unless the language of the statute compels such a conclusion or the nature of the crime involved is such that Congress “must assuredly have intended that it be treated as a continuing one.” United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991).
discussed Cited as authority (rule) United States v. William Williams
9th Cir. · 1997 · confidence medium
See, e.g., United States v. Hutchison, 22 F.3d 846, 855 (9th Cir.1993) ("actual loss" where defendant fraudulently obtained bank loan would refer to "the amount of the loan, minus the value of the collateral pledged") (citation omitted); United States v. Galliano, 977 F.2d 1350, 1352 (9th Cir.1992) (discussing "actual loss" in a context which suggests that court was referring to "net loss"), cert. denied, 507 U.S. 966 (1993); United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (per curiam) (holding that district court's calculation of actual loss which was based on net loss was not clearl…
discussed Cited as authority (rule) United States v. Steven Hepburn
9th Cir. · 1996 · confidence medium
See, e.g., United States v. Hutchison, 22 F.3d 846, 855 (9th Cir.1993) (in case where defendant fraudulently obtained bank loan, court stated that "actual loss" would refer to "the amount of the loan, minus the value of the collateral pledged") (citation omitted); United States v. Galliano, 977 F.2d 1350, 1352 (9th Cir.1992) (discussing "actual loss" in context which suggested that court was referring to "net loss"), cert. denied, 507 U.S. 966 (1993); United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (per curiam) (holding that district court's calculation of actual loss which was based …
cited Cited as authority (rule) United States v. Robert Ernest Lindley, Aka: Robert E. Lindley Aka: Robert L. Lindley, United States of America v. William Edward Cooper, United States of America v. Valerie Jensen
9th Cir. · 1996 · confidence medium
"The court need only make a reasonable estimate of the loss, given the available information." United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (quoting § 2F1.1, comment (n. 8)).
discussed Cited as authority (rule) United States v. Larry Dwight Jaynes and April Marie Jaynes
10th Cir. · 1996 · confidence medium
Relying on Toussie , the Ninth Circuit has concluded that, whether or not a crime is a continuing offense depends on “the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue.” United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Marvin Morris Mitchelson
9th Cir. · 1995 · confidence medium
United States v. Mullins, 992 F.2d 1472, 1479 (9th Cir.), cert. denied, 113 S.Ct. 2997 (1993); United States v. Niven, 952 F.2d 289, 293-94 (9th Cir.1991). 20 Mitchelson argues that the court's calculation method still violated the Double-Jeopardy Clause because, if the court had employed the other sentencing method approved by Niven, he would have received a shorter sentence.
cited Cited as authority (rule) United States v. Bernard J. Morgano, Dominick Palermo, Nicholas Guzzino, Peter Petros, Sam Nuzzo, Jr. And Samuel Glorioso
7th Cir. · 1994 · confidence medium
See also United States v. Roederer, 11 F.3d 973, 976-77 (10th Cir.1993); United States v. Scarano, 975 F.2d 580, 584 (9th Cir.1992); United States v. Niven, 952 F.2d 289, 293-94 (9th Cir.1991).
cited Cited as authority (rule) Medicare & Medicaid Guide P 42,940 United States of America v. Wendy Miller Desalvo
9th Cir. · 1994 · confidence medium
United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991). 8 .
discussed Cited as authority (rule) United States v. Carlos I. Miro (2×) also: Cited "see"
5th Cir. · 1994 · confidence medium
We recognize the apparently contrary position taken by the Ninth Circuit in United States v. Niven, 952 F.2d 289, 294 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Miro (2×) also: Cited "see"
5th Cir. · 1994 · confidence medium
We recognize the apparently contrary position taken by the Ninth Circuit in United States v. Niven, 952 F.2d 289, 294 (9th Cir. 1991).
discussed Cited as authority (rule) United States v. Agha Khan
9th Cir. · 1994 · confidence medium
Accordingly, we have recognized that a district court may impose consecutive sentences on pre-guideline and guideline counts so long as the sentence for the guideline count is calculated "solely with reference to losses not considered in imposing the pre-guidelines sentence." See United States v. Niven, 952 F.2d 289, 294 (9th Cir.1991); United States v. Scarano, 975 F.2d 580, 586 (9th Cir.1992).
cited Cited as authority (rule) United States v. Hilario Figueroa
9th Cir. · 1994 · confidence medium
United States v. Niven, 952 F.2d 289, 291-92 (9th Cir.1991); United States v. Anderson, 942 F.2d 606, 616 (9th Cir.1991) (en banc).
cited Cited as authority (rule) United States v. James Joseph Gerard, United States of America v. Judith Ann Gerard
9th Cir. · 1994 · confidence medium
United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991).
discussed Cited as authority (rule) United States v. James B.A. Niven
9th Cir. · 1994 · confidence medium
United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990). 13 In the first appeal this court was concerned that "the district court may have considered the pre-Guidelines loss incurred prior to November 1, 1987 in imposing the pre-Guidelines sentence of 5 years, yet counted that loss again in calculating the fifty-one month sentence under the Guidelines." United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991).
examined Cited as authority (rule) United States v. Robert Morales, Sr. (6×) also: Cited "see, e.g."
9th Cir. · 1993 · confidence medium
As this passage makes clear, the analysis turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue. 24 952 F.2d 289, 293 (9th Cir.1991) (per curiam) (emphasis added). 25 Contrary to the majority's reasoning, it is not dispositive that the corrupt behavior out of which Morales's convictions arose was ongoing and part of a single pattern of illegal conduct.
discussed Cited as authority (rule) United States v. James Edward Roederer
10th Cir. · 1993 · confidence medium
A court avoids a double jeopardy violation when it “aggregate[s] the amount of losses in calculating the offense level for the Guidelines sentence, so long as it imposes concurrent sentences for the pre-Guidelines and Guidelines offenses.” United States v. Scarano, 975 F.2d 580, 586 (9th Cir.1992) *977 (citing United States v. Niven, 952 F.2d 289, 294 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Ronald L. Rushton
9th Cir. · 1993 · confidence medium
A court will analyze "the nature of the substantive offense, not ... the specific characteristics of the conduct in the case at issue." United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991) (mail and wire fraud criminalize each specific use of the mail or wire and are complete when the fraudulent matter is placed in the mail or wired, therefore the offenses are not continuing); see Hutchinson, slip op. at 4297-98 (whether a bank fraud scheme actually straddled the effective date of the Guidelines is a question of fact for the district court to resolve). 4 Rushton claims that he should have …
discussed Cited as authority (rule) United States v. Donald Vaile
9th Cir. · 1993 · confidence medium
United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991). 17 In the present case, the district court concluded that the defendant waived counsel before each of the challenged prior misdemeanor convictions.
discussed Cited as authority (rule) United States v. Richard Ian Silver
9th Cir. · 1993 · confidence medium
To avoid double punishment, the court had to choose between " 'mak[ing] an express finding as to the sums of monies lost as a result of the offenses underlying the pre-Guidelines counts and Guideline counts, [and then] calculat[ing] the Guidelines sentence solely with reference to losses not considered in imposing the pre-Guidelines sentence,' " or, " '[a]lternatively, ... aggregat[ing] the amount of losses in calculating the offense level for the Guidelines sentence [and then] impos[ing] concurrent sentences for the pre-Guidelines and Guidelines offenses.' " Id. (emphasis added) (quoting Unit…
discussed Cited as authority (rule) Darrell B. Warren v. United States (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
"In contrast, an uncounseled misdemeanor may be used to enhance a subsequent sentence where the lack of counsel is not due to the operation of law, but because the defendant knowingly waived his right to counsel." United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991).
cited Cited as authority (rule) United States v. Roger Alan Lee
9th Cir. · 1993 · confidence medium
We adopted the same qualified view of uncounseled misdemeanor convictions in United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Brian Hutchison
9th Cir. · 1993 · confidence medium
However, the application of the Sentencing Guidelines is reviewed de novo, id., *854 and factual determinations made in applying the Guidelines are reviewed for clear error, United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991).
cited Cited as authority (rule) United States v. Angelo T. Commito
9th Cir. · 1993 · confidence medium
See Scarano, 975 F.2d at 580 ; United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Arnold Brauff, United States of America v. Arnold Brauff
9th Cir. · 1993 · confidence medium
"An offense initiated before November 1, 1987 but not completed until after that date comes within the ambit of the Sentencing Guidelines." United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991) (per curiam).
discussed Cited as authority (rule) United States v. Aji Ashley, Aka: Elizabeth Alexander (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
The court need only make a reasonable estimate of the range of loss, given the available information.' " United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (per curiam) (district court properly determined that the loss attributable to defendant's criminal conduct was between two and five million dollars based upon the Federal Bureau of Investigation's accounting, which indicated that the defendant took over seven million dollars and returned approximately three million dollars to investors) (quoting U.S.S.G. § 2F1.1, comment. (n. 8)). 14 Here, Ashley agreed in the plea agreement that sh…
discussed Cited as authority (rule) United States v. Ricardo S. Scarano (2×) also: Cited "see, e.g."
9th Cir. · 1992 · confidence medium
United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Anthony D. Casias, United States of America v. Leo Casias
9th Cir. · 1992 · confidence medium
United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991). 18 Appellants allege error in the sentencing court's finding that part of the money diverted from the student travel tour funds was used to pay restitution for a 1983 larceny conviction.
discussed Cited "see" United States v. Pontz
1st Cir. · 2025 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991) (holding that wire and mail fraud were not continuing offenses because "[e]ach offense is complete when the fraudulent matter is placed in the mail or transmitted by wire, respectively"), overruled on other grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
cited Cited "see" United States v. Mark Gelazela
9th Cir. · 2019 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
cited Cited "see" United States v. Johnson
D.S.D. · 2015 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991) (per curiam).
discussed Cited "see" United States v. Powell
D.R.I. · 2015 · signal: accord · confidence high
Accord, United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991) (“As [Toussie] makes clear, the analysis turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at is sue.”). 6 In addition to going beyond Tous-sie’s framework by holding “continuous offense” a fact-specific instead of offense-generic doctrine, the Phan conclusion that § 641 charges a continuing offense is inconsistent with the concept of “inherent nature.” The hallmarks of an “inherently continuing” offense are “a particular statute ... clearly contemp…
discussed Cited "see" United States v. Winn (2×) also: Cited "see, e.g."
D. Nev. · 2014 · signal: see · confidence high
See Niven, 952 F.2d at 293 overruled on other grounds by Scarano, 76 F.3d at 1477 (“[T]he [Toussie ] analysis turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue.”).
discussed Cited "see" United States v. Dunne
10th Cir. · 2003 · signal: see · confidence high
Section *1165 1001 was intended “to protect the Government from the affirmative, aggressive and voluntary actions of persons who take the initiative; and to protect the Government from being the victim of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions.” Brogan v. United States, 522 U.S. 398, 413 , 118 S.Ct. 805 , 139 L.Ed.2d 830 (1998) (Ginsburg, J., concurring) (quotation omitted); see United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991) (holding that, in determining whether a crime is a continuing offens…
discussed Cited "see" United States v. John Wesley Scrivener
9th Cir. · 1999 · signal: see · confidence high
Under the Sentencing Guidelines, “[t]he court need only make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1, comment, (n.9); see United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991).
discussed Cited "see" UNITED STATES of America, Plaintiff-Appellee, v. Gerald ORTLAND, Defendant-Appellant (2×)
9th Cir. · 1997 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991), overruled in part by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir.1996)(overruling the double jeopardy portion of Niven).
cited Cited "see" United States v. Joe Bert Hunt
9th Cir. · 1997 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (per curiam).
cited Cited "see" United States v. Leonard Cooper and Tanya Cooper, United States of America v. A.C. Allen
9th Cir. · 1996 · signal: see · confidence high
See United States v. Niven, 952 F.2d 289, 291 (9th Cir.1991) (per curiam) (the amount of loss need not be precise ... the court need only make a reasonable estimate of the range of loss).
discussed Cited "see" UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SCARANO, Defendant-Appellant (2×)
9th Cir. · 1996 · signal: see · confidence high
See Niven, 952 F.2d 289 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James B.A. NIVEN, Defendant-Appellant
90-50110.
Court of Appeals for the Ninth Circuit.
Dec 23, 1991.
952 F.2d 289
Michael J. Treman, Santa Barbara, Cal., for defendant-appellant., Carolyn Kubota, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Boochever, Kozinski, O'Scannlain, Per Curiam.
Cited by 74 opinions  |  Published
PER CURIAM:

James B.A. Niven appeals his sentence for mail and wire fraud. Niven contends that the district court erred in calculating his adjusted offense level. Niven asserts eight errors: (1) an erroneous loss calculation; (2) incorrect adjustment for role as supervisor or manager; (3) refusing to give a downward adjustment for acceptance of responsibility; (4) inclusion of prior convictions when he was not represented by counsel; (5) considering that he was on unsupervised release at the time of his present offense; (6) separately sentencing him for offenses initiated before November 1, 1987 rather than treating them as continuing offenses completed after that date; (7) including the pre-Guidelines portions of the total loss when determining both the pre-Guidelines and Guidelines sentence; and (8) not limiting the order of restitution to the offenses for which he was convicted. We consider each in turn.

I

Pursuant to Guidelines section 2F1.1, the district court determined that the loss attributable to Niven’s criminal conduct was between $2 and $5 million dollars and, accordingly, added ten points to Niven’s base offense level. Niven contests the district court’s loss calculation. [1] We review the district court’s legal interpretations of the Guidelines de novo, and its factual determinations made in the course of applying the Guidelines for clear error. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990).

“The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level, regardless of the number of counts of conviction.” U.S.S.G. § 2F1.1, comment (n. 6). “The amount of loss need not be precise.... The court need only make a reasonable estimate of the range of loss, given the available information.” Id., comment (n. 8). Here, the Federal Bureau of Investigation’s accounting revealed that Niven had taken $7.7 million and had returned approximately $3.7 million to investors. Thus, the district court’s estimate, based upon the FBI accounting, that the loss ranged between $2 and $5 million was not clearly erroneous.

II

Niven challenges the two-point offense-level increase for his role in the offense as an “organizer, leader, manager, or supervisor.” U.S.S.G. § 3Bl.l(c). Section 3B1.1 applies only when the offense is committed by more than one person who is criminally responsible for the commission of the offense. United States v. Anderson, 942 F.2d 606, 616-17 (9th Cir.1991) (en banc). Here, although there was some evidence before the district court from which it could so conclude, the record is not clear whether the district court’s upward adjustment was based on a finding[*292] that Eric Laing was also criminally responsible for the offenses. Accordingly, we remand this case to the district court to reconsider this upward adjustment in light of Anderson.

III

Niven contends that he was entitled to a two-point offense level reduction for “acceptance of responsibility” pursuant to section 3E1.1 of the Guidelines. We review a district court’s decision on acceptance of responsibility for clear error. See United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991).

As evidence of his acceptance of responsibility, Niven notes that he testified at trial, admitting that he formed the companies and made the representations for which he was charged. Likewise, Niven notes that he substantially cooperated with the government in this complicated, document-laden proceeding.

If these factors comprised the sum total of the evidence regarding Niven’s acceptance of responsibility, we might be inclined to agree. However, there is more. The district court observed:

During the trial, [Niven] showed no contrition. In my view he testified falsely in certain instances.... [¶] But in terms of a judgment about his credibility and contrition, I am convinced he has none. It seems to me he is a cold and callous individual and that he ought to suffer some of the same miseries he’s caused others.
When I looked upon this defendant, as I do all, I looked for some redeeming feature and found none. Zero. That’s unusual.

Based upon our review of the record, we cannot say that the district court’s observations were clearly erroneous. Accordingly, we conclude that the district court’s refusal to give a downward adjustment for acceptance of responsibility was not erroneous.

IV

Niven also contests the two-point adjustment to his criminal history score. His prior convictions, Niven contends, should not result in such a high criminal history score since (1) he was not represented by counsel on one conviction, and (2) it was pure fortuity that he was on unsupervised probation at the time of the present offense, as any “greater” sentence would have already been completed.

The use of uncounseled convictions to increase a criminal history score was considered by Application Note 6 to section 4A1.2 of the Guidelines which, prior to November 1, 1990, provided that “if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score.” Here, we find no such constitutional violation. The Constitution is implicated when a defendant is tried, over his objection, without state provision of counsel. See Scott v. Illinois, 440 U.S. 367, 369-70, 99 S.Ct. 1158, 1159-60, 59 L.Ed.2d 383 (1979). In contrast, an un-counseled misdemeanor may be used to enhance a subsequent sentence where the lack of counsel is not due to operation of law, but because the defendant knowingly waived his right to counsel. Cf. Baldasar v. Illinois, 446 U.S. 222, 223, 228, 100 S.Ct. 1585, 1585, 1588, 64 L.Ed.2d 169 (1980).

V

We are also unpersuaded by Niven’s argument concerning his probationary (albeit unsupervised) status. In United States v. McCrudden, 894 F.2d 338 (9th Cir.), cert. denied, 494 U.S. 1060, 110 S.Ct. . 1534, 108 L.Ed.2d 773 (1990), we held that “[t]he non-supervisory status of a sentence of probation does not exempt it from section 4Al.l(d).” Id. at 339. It is true that had Niven been jailed for the second offense rather than given probation, he would have had a lower criminal history score. However, we see no inconsistency. A subsequently enhanced penalty is not an unfair exchange for a prior grant of leniency. See id. (“It is not unreasonable to enhance the punishment of an offender[*293] who again violates the law before fully serving his prior punishment.”).

VI

An offense initiated before November 1, 1987 but not completed until after that date comes within the ambit of the Sentencing Guidelines. See United States v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990). Niven reasons that his offenses were “continuing offenses” completed after November 1, 1987, and thus, they meet this criterion for exclusive sentencing under the Guidelines.

“[T]he doctrine of continuing offenses should be applied in only limited circumstances.” Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). An offense should not be deemed continuous “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Id. As this passage makes clear, the analysis turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue. Here, the offenses at issue — 18 U.S.C. §§ 1341 and 1343 — criminalize each specific use of the mail or wire. Each offense is complete when the fraudulent matter is placed in the mail or transmitted by wire, respectively. Thus, the offenses for which Niven was convicted are not continuing offenses, and the district court did not err in sentencing him under pre-Guidelines law for those counts committed prior to November 1, 1987.

VII

Niven next contends that, even if certain counts pre-date the Guidelines, the inclusion of losses associated with those counts in calculating the loss under U.S.S.G. § 2F1.1 subjected him to multiple punishment for the same offenses. The question before us, then, is how a sentencing court should calculate an offense level under the Guidelines, when the amount of loss upon which it usually would rely has already served as the basis for a separate pre-Guidelines sentence.

The district court sentenced Niven to five years imprisonment for those counts involving offenses completed from late 1982 to November 1, 1987, the effective date of the Sentencing Guidelines. For the counts encompassing crimes committed between November 1, 1987, and the time of his arrest in November 1988, the district court used the total losses incurred over the six-year period to increase Niven’s adjusted offense level by ten points. See U.S.S.G. § 2Fl.l(b)(l)(K) (1988). Thus, the district court may have considered the pre-Guide-lines loss incurred prior to November 1, 1987 in imposing the pre-Guidelines sentence of five years, yet counted that loss again in calculating the fifty-one month sentence under the Guidelines.

When offenses would require grouping of multiple counts under section 3D1.2(d), as is the case here, the Guidelines state that the relevant conduct in determining the applicable guideline range includes “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2) (1988). The Sentencing Guidelines do not, however, empower a sentencing court to count again the same loss the court already had considered in imposing a pre-Guidelines sentence. [2] Inclusion of the pre-Guidelines portion of the total loss when determining both the pre-Guidelines and Guidelines sentences potentially violates the Double Jeopardy Clause, which “protects against multi-[*294] pie punishments for the same offense.” United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986). We must ascertain whether construction of a provision of the Sentencing Guidelines is “ ‘fairly possible by which the constitutional question may be avoided.’ ” United States v. Watt, 910 F.2d 587, 592 (9th Cir.1990) (quoting United States v. Security Indus. Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982)).

The government argues that the district court has discretion to order that a sentence imposed on the pre-Guidelines counts be served consecutively to a sentence imposed on the Guidelines counts. See United States v. Parks, 924 F.2d 68, 71 (5th Cir.1991); United States v. Watford, 894 F.2d 665, 669 (4th Cir.1990). There are, however, two distinct issues involved. The threshold issue of whether a court can calculate an offense level for a Guidelines count by using losses for which the defendant already has been sentenced is a legal question that does not involve any discretion. Only after this question is answered would one consider the issue of whether pre-Guidelines and Guidelines sentences should run concurrently or consecutively.

The record is unclear whether the district court prevented multiple punishment by rendering a shorter pre-Guidelines sentence than it would have otherwise, because the court foresaw that it would be taking the total amount of losses into account when sentencing as to the Guidelines counts. Hence, we remand and direct the court to make an express finding as to the sums of monies lost as a result of the offenses underlying the pre-Guidelines counts and Guidelines counts, and to calculate the Guidelines sentence solely with reference to losses not considered in imposing the pre-Guidelines sentence. Alternatively, the court may aggregate the amount of losses in calculating the offense level for the Guidelines sentence, so long as it imposes concurrent sentences for the pre-Guidelines and Guidelines offenses.

VIII

Invoking the Victim and Witness Protection Act of 1982 (“VWPA”), 18 U.S.C. §§ 3663 and 3664, the district court ordered Niven to pay restitution in the amount of $1,635,978. The district court arrived at this figure by (1) identifying victims seeking restitution, and (2) determining the losses inflicted upon each identified victim based upon the government’s tracing of investor funds. [3] Niven contends that the restitution order exceeds that authorized by the VWPA.

We agree. In Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Supreme Court held that restitution under the VWPA must be limited to the offense of conviction. Id. at 1981; see also United States v. Garcia, 916 F.2d 566, 567 (9th Cir.1990). Prior to Hughey, in United States v. Pomazi, 851 F.2d 244 (9th Cir.1988), we held that the offense of wire fraud “includes the fraudulent scheme ... and restitution may be ordered in an amount caused by the entire scheme rather than only in the amount caused by a particular mailing.” 851 F.2d at 249 (quotation omitted). Pomazi, however, was overruled by Hughey. See United States v. Sharp, 941 F.2d 811, 814-15 (9th Cir.1991). “Even when the offense of conviction involves a conspiracy or scheme, restitution must be limited to the loss attributable to the specific conduct underlying the conviction.” Id. The restitution order here exceeded that authorized by the VWPA as construed in Hughey.

“The appropriate remedy for a sentence imposed in excess of the sentencing court’s authority is to vacate the entire sentence and remand for resentencing.” United States v. Blue Mountain Bottling Co. of Walla Walla, 929 F.2d 526, 529 (9th Cir.1991). This is true even where only the restitutionary portion of a sentence is vacated. See id.; see also Sharp, United States v. Jenkins, 884 F.2d 433, 441 (9th Cir.1989), cert. denied, 493 U.S. 1005, 110 S.Ct. 568, 107 L.Ed.2d 562 (1990).

[*295] IX

We vacate Niven’s sentence and remand for resentencing. If the government again seeks an upward adjustment under section 3Bl.l(c), the district court should consider the request in light of United States v. Anderson, 942 F.2d 606 (9th Cir.1991) (en banc).

VACATED and REMANDED.

1

. The loss table contained in section 2F1.1 has been subsequently amended. However, we apply the Guidelines provision effective as of the date of Niven’s sentencing. See United States v. Mims, 928 F.2d 310, 312 n. 1 (9th Cir.1991).

2

. The Sentencing Commission apparently agrees:

If the relevant conduct for an offense committed on or after November 1, 1987, overlaps with conduct sanctioned as part of a pre-November 1 count, there would be a potential for double counting unless the pre-guideline counts were sentenced concurrently. The court will have to carefully fashion the sentence with these concerns in mind.

U.S. Sentencing Comm’n, Questions Most Frequently Asked About the Sentencing Guidelines 4 (Dec.1990).

3

. The district court instructed the parties to agree upon these two items, a task accomplished during a brief recess in the sentencing phase.