with whom LAY and BRIGHT, Senior Circuit Judges and McMILLIAN, Circuit Judge, join, dissenting.
I respectfully dissent. With the promulgation of guideline section lB1.3(a)(2), the Sentencing Commission has created sentencing policy without authority from Congress.
A.
In 1984, Congress established the United States Sentencing Commission. Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 217(a), 98 Stat. 1837, 2017-27 (codified as amended at 28 U.S.C. § 991-998 (1988)). Congress charged the Commission, among other things, with promulgating guidelines and policy statements for use in determining and implementing criminal sentences. 28 U.S.C. § 994(a). Thereafter, the Commission promulgated a comprehensive set of guidelines and policy statements, including the guideline at issue here, entitled “Relevant Conduct,” U.S.S.G. § 1B1.3. The relevant conduct guideline reads:
Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that of*429fense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts or omissions; and
(4) any other information specified in the applicable guideline.
(b) Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence). Factors in Chapters Four and Five that establish the guideline range shall be determined on the basis of the conduct and information specified in the respective guidelines.
The Chairman of the Sentencing Commission, United States Circuit Judge William W. Wilkins, Jr., and General Counsel John R. Steer have called the relevant conduct guideline “the cornerstone of the federal sentencing guideline system.” William W. Wilkins & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 496 (1990) (hereinafter Wilkins & Steer). In promulgating the relevant conduct guideline, the Commission adopted a so-called “real offense” philosophy. See U.S.S.G. § 1B1.3, comment, (backg’d.). In other words, the Commission sought to punish offenders for “the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted.” See U.S.S.G. Ch. 1, Pt. A.4(a), p.s.1 To this end, subsection (a)(2) of the relevant conduct guideline requires courts, in determining an offender’s base offense level, to include “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).
Subsection lB1.3(a)(2) applies to all offenses, whether charged or uncharged, that ordinarily must be grouped together, pursuant to U.S.S.G. § 3D1.2(d), for purposes of calculating the applicable sentencing range. Id., comment, (n. 2). Offenses must be grouped together, under section 3D1.2(d), whenever “the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.”2 Galloway’s offense, theft from interstate shipment, falls within *430this grouping requirement. See U.S.S.G. § 3D1.2(d) (incorporating by reference U.S.S.G. § 2B1.1).
My review focuses on whether the Commission exceeded its statutory authority, or acted arbitrarily, in drafting U.S.S.G. § lB1.3(a)(2) to include uncharged property crimes like Galloway’s. See Fidelity Fed. Savs. & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 154, 102 S.Ct. 3014, 3023, 73 L.Ed.2d 664 (1982). At oral argument before the panel, we inquired where the Sentencing Commission derived the authority to promulgate the uncharged conduct provisions of section lB1.3(a)(2). The government could not cite us to any specific statutory provision in the enabling act or elsewhere. We also asked the government to explain the Commission's rationale for incorporating the grouping provisions of section 3D1.2(d) into the relevant conduct guideline. On this issue, we received an equally unsatisfactory response from the government.
After a thorough search of the pertinent statutes and legislative history, I now conclude that the Sentencing Commission exceeded the scope of its statutory authority in promulgating the uncharged conduct provisions of section lB1.3(a)(2) under the facts of this case. United States v. Davern, 970 F.2d 1490, 1495-98 (6th Cir.1992) (en banc) (Merritt, C.J., dissenting) (Congress did not authorize relevant conduct provisions adopted by Sentencing Commission). I make clear that my position in no way infringes on the traditional authority of sentencing courts to consider unconvict-ed criminal conduct for an applicable sentence within the guideline range. See infra pp. 435-36.
1. Scope of Authority
The Commission’s authority to issue sentencing guidelines derives from 28 U.S.C. § 994 (1988). Subsection 994(a) directs the Commission to promulgate and distribute “guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case.” 28 U.S.C. § 994(a)(1) (emphasis added). The remainder of section 994 lays out a general floor plan for guideline promulgation, including several explicit specifications. 28 U.S.C. § 994(b)-(x). The Commission has no discretion to ignore these statutory directives. See S.Rep. No. 225, 98th Cong., 2d Sess. at 163 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3346 (“[t]he sentencing guidelines ... must be consistent with all pertinent provisions of titles 18 and 28”). Nonetheless, in at least two instances, the Commission failed to follow express and implied legislative directives.
2. Incremental Punishment
In section 994(i), Congress provides specific instructions about how the Commission should punish multiple instances of criminal misconduct. Incremental punishment is authorized “in a case where a defendant is convicted of” multiple criminal offenses.3 28 U.S.C. § 994(i)(l) (emphasis added). The clear implication is that Congress did not intend the guidelines to punish separate instances of unconvicted conduct incrementally. See U.S. v. Davern, 937 F.2d 1041, 1051 (6th Cir.1991); see also United States v. Miller, 910 F.2d 1321, 1329-30 (6th Cir.1990) (Merritt, C.J., dissenting) (“[t]he provision of the guideline enabling legislation authorizing ‘incremental’ penalties plainly requires conviction of the offense for which the sentence is imposed”), cert. denied, — U.S. -, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Any other interpretation renders the words chosen by Congress meaningless. Had Congress wanted separate unconvicted offenses to be punished incrementally, it could have done so simply by replacing the *431phrase “is convicted of” with the word “commits.”
The Senate Report explaining subsection 994(l) confirms that Congress intended the incremental punishment provisions to apply only to valid criminal convictions. It states:
Subsection (i) directs the Commission to promulgate guidelines that reflect the appropriateness of imposing an incremental penalty for each offense if a defendant is convicted of a number of offenses that are part of the same course of conduct, and if a defendant is convicted of multiple offenses committed at different times.... If no such incremental penalty were provided (e.g., were all sentences to be imposed without regard to the commission of other offenses and made to run concurrently), an offender who commits one offense would be faced with no deterrent to the commission of another during the interval before he is called to account for the first. It is the Committee’s intent that, to the extent feasible, the sentences for each of the multiple offenses be determined separately and the degree to which they should overlap be specified. Under this approach, if the conviction for one of the offenses is overturned, it will be unnecessary to recalculate the sentence.
S.Rep. No. 225, 98th Cong., 2d Sess. at 176-77 (1983), reprinted in 1984 U.S.C.C.A.N. at 3182, 3359-60 (emphasis added).
The Senate Report unequivocally requires any overturned convictions to be excluded from the sentencing calculation. This requirement necessarily applies to convictions overturned on legal technicalities, as well as convictions overturned due to the government’s failure to prove guilt beyond a reasonable doubt. The clear implication is that Congress intended to afford defendants the full panoply of constitutional, statutory and procedural protections before subjecting them to incremental punishment for multiple offenses.4
The relevant conduct guideline promulgated by the Commission, however, fails to comport with these directives. To the contrary, the relevant conduct guideline requires offenders’ sentences to be increased incrementally for a broad range of uncon-victed conduct. It provides that an offender’s base offense level “shall be determined” based on such unconvicted offenses. U.S.S.G. § lB1.3(a) (emphasis added). This provision applies even where, as here, the conduct consisted of factually and temporally distinct crimes against property. I do not think a guideline of this scope can be supported in view of the express and implied legislative directives addressing the imposition of incremental punishment for criminal offenses.5
*4323. Sentencing Disparity
28 U.S.C. § 994(f) directs the Commission, in promulgating guidelines, to pay “particular attention to the requirements of [28 U.S.C. §] 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities.”6 This latter subsection, 28 U.S.C. § 991(b)(1)(B), requires the Commission to establish policies and practices that avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” Id. See also S.Rep. No. 225, 98th Cong., 2d Sess. at 161, reprinted in 1984 U.S.C.C.A.N. at 3182, 3344. The plain language of this subsection indicates that Congress sought, in large part, to equalize sentences based on convicted criminal conduct.
The legislative history confirms this interpretation. According to the Senate Report, 28 U.S.C. § 991(b)(1)(B) underscores the major premise of the sentencing guidelines: the need to avoid unwarranted sentencing disparity. S.Rep. No. 225, 98th Cong., 2d Sess. at 78, reprinted in 1984 U.S.C.C.A.N. at 3182, 3261. Consistent with this objective, the subsection establishes two factors as “the principle determinants of whether two offenders’ cases are so similar that a difference between their sentences should be considered a disparity that should be avoided unless it is warranted by other factors.” Id. at 161, reprinted in 1984 U.S.C.C.A.N. at 3182, 3344. Under the statute, these factors are: (1) the prior records of offenders; and (2) the criminal conduct for which they are to be sentenced. See id.7
The relevant conduct guideline promulgated by the Commission strays far from this goal. The guideline requires increased penalties for unconvicted conduct no matter how minor the offense of conviction may be in proportion to the unconvicted offenses at issue. This requirement has caused considerable and widespread concern in both sentencing and reviewing courts. Indeed, since its promulgation, courts have repeatedly struggled with the tendency of the relevant conduct provisions to dwarf the actual count of conviction. See, e.g., United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991) (uncharged conduct produced seven-fold increase in sentencing range); United States v. Ebbole, *433917 F.2d 1495, 1496 (7th Cir.1990) (uncharged conduct resulted in tripling of sentence); Miller, 910 F.2d at 1329 (Merritt, C.J., dissenting) (same); United States v. Brittman, 687 F.Supp. 1329, 1335 (E.D.Ark.1988) (uncharged conduct quadrupled sentencing range), rev’d in part, 872 F.2d 827 (8th Cir.1989); see also United States v. Sleet, 893 F.2d 947, 948 (8th Cir. 1990) (uncharged conduct increased sentence); United States v. Cohoon, 886 F.2d 1036, 1037 (8th Cir.1989) (per curiam) (uncharged conduct essentially doubled sentence). As the numerous examples indicate, these compounded sentences are not occasional aberrations, but predictable consequences of the relevant conduct provisions now in effect. As. such, these provisions violate Congress’ explicit instruction that the Commission, as its primary task, seek to equalize sentences between defendants found guilty of similar conduct.
Given the statutory provisions and legislative history, I conclude that the Commission clearly exceeded its authority under the enabling legislation in drafting subsection lB1.3(a)(2) of the relevant conduct guideline to encompass the unconvicted criminal conduct at issue in this case. I would hold the provision unenforceable insofar as it permits offenders to be systematically penalized for factually and temporally distinct property crimes that have neither been charged by indictment nor proven at trial.8
The sentencing transcript makes clear that the district court recognized the sentencing disparity that strict adherence to section lB1.3(a)(2) would create with respect to two offenders indicted and convicted of identical offenses. The transcript also makes clear that the district court recognized the uncharged crimes in question as separate and factually distinct instances of criminal conduct. Accordingly, I think the circumstances of this case provide the district court with justification for acting to eliminate this guideline-imposed disparity.
B.
Assuming, for the sake of discussion, that the legislative mandate is not as clear as I find it and is susceptible to alternative constructions, the Commission, and the majority in turn, apply erroneous rules of interpretation and review.
The Commission believes that it has authority to adopt either a “charged offense” or what it terms a “real offense” methodology. Within this analysis, it reached its so called “compromise” on the broader, real offense, approach. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1 (1988) (hereinafter Breyer).
The guideline, section lB1.3(a)(2), with its reference to section 3D1.2(d), permits, as the facts of this case show, consideration of separate, uncharged crimes that are difficult to envision as part of even a “real offense” analysis, as more properly typified by the terms of section lB1.3(a)(l), and as discussed by Judge Breyer. Breyer, supra, at 8-13. It permits, as earlier stated, inclusion and consideration of unindict-ed, unproven (by proof beyond a reasonable doubt) and temporally unrelated criminal acts.
That is not, however, the main problem. We must ask, assuming the legislative language, whether the Commission followed an allowable course. I submit that it did not.
The majority seems to argue, faintly, the premise that the statute is unambiguous in requiring real offense sentencing. It ap*434parently divines direct language in the statute showing clear Congressional intent that the Commission should fashion guidelines based on relevant conduct. Majority Opinion supra p. 420. Support for this conclusion supposedly springs from 28 U.S.C. § 994(c)(2).9 The Commission obviously does not find such clear direction in the statute. It has, as indicated, frequently termed the guideline a compromise and has at least intimated that an offense of conviction guideline would have been equally permissible under the law. See, e.g., Wilkins & Steer, supra, at 500-01 and Breyer, supra, at 8. As I pointed out earlier, the statute is clearly directed toward offense of conviction conduct, and at best, the legislation is ambiguous on this point. The majority, in fact, takes a more realistic view when it states “[i]f it [the statute] is not so clear, we have no doubt that, taken with the more general language [in the statutes] there is sufficient and permissible statutory underpinning [for the guideline].” Majority Opinion supra p. 421. This appears a concession by the majority that we are dealing with, at least, an ambiguous message from Congress.
The majority cites, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) for the proposition that we should defer to the Commission’s interpretation of its legislative authority. “[I]f the statute is silent or ambiguous” with respect to this authority, says the majority, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Majority Opinion supra p. 420 (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2782). Reliance on Chevron is misplaced for two reasons.
First, the majority opinion, as do earlier opinions of this court, applies Chevron and gives deference to the statutory interpretations made by the Sentencing Commission, presumably likening the guidelines to rules promulgated by an executive agency. See United States v. Lee, 887 F.2d 888, 890 (8th Cir.1989). This is a misapplication of Chevron.
In Chevron, the Supreme Court recognized the political compromise involved when Congress enacts broad legislation and allows the executive branch to set specific policy through promulgation of regulations. Chevron, 467 U.S. at 865, 104 S.Ct. at 2793; United States v. Shimer, 367 U.S. 374, 382-83, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961). It also recognized the unique expertise agencies have in the particular areas they regulate. Chevron, 467 U.S. at 865, 104 S.Ct. at 2793.
The Sentencing Commission “is established as an independent commission in the judicial branch of the United States.” 28 U.S.C. § 991(a). Since three of the seven members of the Commission are federal judges, see 28 U.S.C. § 991(a), and the Commission promulgates guidelines in an area that is historically within the discretion of judges, it is mere conjecture to assume the Commission has any expertise not found in the members of the judiciary who review its actions. Additionally, the separation of powers concern which militates in favor of deference to the compromise between Congress and the executive in the usual regulatory regime is attenuated when, as here, the body responsible for promulgating the regulations is also within the same branch of government. Accordingly, adherence to Chevron is unnecessary and improper in dealing with statutory interpretations made by the Sentencing Commission. I would disregard the views of the Commission and conduct a de novo review.
Second, and most importantly, we are dealing with punishment for a crime and not with a civil matter as in Chevron. Thus, the rule of interpretation found in United States v. Thompson/Center Arms *435Co., — U.S. -, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992), not Chevron, should more appropriately be applied.
In Thompson/Center Arms Co., the issue was whether an unassembled complete parts kit for a short-barreled rifle is a short-barreled rifle for the purposes of the National Firearms Act (NFA). Id. — U.S. at-, 112 S.Ct. at 2105. The Supreme Court, applying the “ordinary rules of statutory construction” was “left with an ambiguous statute.” Id. — U.S. at-, 112 S.Ct. at 2109. Even though the immediate question was collection of a tax, a civil matter, the Court applied the rule of lenity noting that the NFA has criminal applications. Id. The rule of lenity, of course, requires an interpretation favorable to a criminal defendant. Here, we do not have a mere civil statute with criminal applications, we are directly presented with a statute dealing with punishment for a crime. Surely application of the rule of lenity should be required in interpreting whether or not the Commission exceeded the scope of its statutory authority. See also Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990) (applying principles of lenity to limit assessment of restitution under Witness Protection Act to amount involved only in offense of conviction as opposed to amount involved in other relevant conduct).
C.
Finally, I take exception to two additional arguments advanced by the majority. First, the majority incorrectly states that use of relevant conduct is historically supportable, and is “nothing more than tak[ing] traditional sentencing factors and according] them a ‘predetermined effect.’ ” Majority Opinion supra p. 423 (quoting United States v. Restrepo, 946 F.2d 654, 657 (9th Cir.1991)). I find no historical precedent, and the majority points to none, for the use of relevant conduct in this way. Conduct outside of the scope of an offense of conviction has never before been used to set the coordinates within which the judge must work in crafting a sentence. Historically, such informaron has been used exclusively to pinpoint the precise sentence to be imposed within authorized sentencing latitudes.
Second, the majority argues that various amendments to “relevant conduct” rules have been sent to the Congress without rejection of section 1B1.3. Majority Opinion supra p. 421. This presumably supports the idea that the Commission was correct in finding authority to adopt its relevant conduct guidelines. Such authority, however, must be found within the applicable statutory language. Statutes are not considered, passed, amended, revoked or interpreted by the inaction of Congress. Further, it is not for the Congress to interpret a duly enacted law, it is, as in this instance, a matter for the court.
D.
Having concluded that the Commission exceeded its authority, I add a necessary caveat. Nothing in my position is intended to infringe on the district court’s traditional sentencing authority to consider unconvict-ed conduct.10 The appropriate place for such consideration, however, is under U.S.S.G. § 1B1.4. This guideline permits courts to consider potentially relevant information in determining the sentence to impose within the specified guidelines range.
Section 1B1.4 essentially codifies the rule, under the pre-guidelines system, that permitted district courts to consider information about a defendant’s background, character and conduct almost without limitation. See United States v. Grayson, 438 U.S. 41, 45-50, 98 S.Ct. 2610, 2613-15, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). As a practical matter, under the prior system, the court’s discretion to consider uncharged criminal conduct fell at the outer parameters of its sentencing authority. It was a potentially *436troublesome power, but was justified by the prior system’s need to insure that the court obtained the most complete picture possible before exercising its sentencing discretion. See Grayson, 438 U.S. at 53-54, 98 S.Ct. at 2617; see also Ebbole, 917 F.2d at 1496 (recognizing unfairness of sentencing a defendant on the basis of uncon-victed conduct). Significantly, however, even under the prior system of discretionary sentencing, courts could not use their power to consider uncharged conduct to achieve “the impermissible sentencing practice of incarcerating for the purpose of saving the Government the burden of bringing a separate and subsequent ... prosecution.” Grayson, 438 U.S. at 53, 98 S.Ct. at 2617.
E.
This opinion is consistent with the prior unanimous panel opinion reported as United States v. Galloway, 943 F.2d 897 (8th Cir.1991), and I approve of the views expressed therein.
Accordingly, without dealing with the constitutional issues decided by the district court and discussed in Judge Bright’s dissent, I would affirm the sentence imposed by Judge Eisele. I conclude that, as applied in this particular case, the United States Sentencing Commission exceeded its authority in promulgating the uncharged conduct provisions of U.S.S.G. § lB1.3(a)(2) to encompass separate and factually distinct criminal property offenses.
. As authority for adopting a real offense system, Wilkins and Steer state only the following: "The House version of sentencing reform legislation generally provided for a strict, offense of conviction sentencing guideline system. Conversely, the Senate version, while it did not expressly specify, seemed to lean toward a real offense system." William W. Wilkins & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 501 (1990) (footnotes omitted) (emphasis added).
I have reviewed the authorities cited in the authors’ footnotes. I agree that the House version incorporated, essentially, a charged offense philosophy. Among other things, the House version required the court to "adhere as closely as possible to the principle that similar offenders convicted of similar offenses committed under similar circumstances should receive similar sentences." H.R.Rep. No. 1017, 98th Cong., 2d Sess. 2 (1984) (referring to proposed 18 U.S.C. § 3521(a)(2)). I cannot agree, however, that the Senate version, which Congress later enacted, adopted a real offense system to the extent the authors assert. See, Sentencing Reform Act of 1984, Pub.L. No. 98-473, §§ 212(a), 217(a), 98 Stat. 1837, 1987-92, 2017-27 (codified as amended at 18 U.S.C. §§ 3551-3559 (1988)); 28 U.S.C. §§ 991-998 (1988). As I later discuss, these provisions do not authorize the Commission to promulgate guidelines for the purpose of punishing separate instances of factually distinct unconvicted criminal conduct.
. Section 3D1.2(d), as written, applies to "multiple counts” of criminal conduct. The commentary to section lB1.3(a)(2) makes clear that, for the purposes of the relevant conduct guideline, the grouping provisions of section 3D 1.2(d) apply regardless of whether the offenses at issue were actually charged as multiple counts. U.S.S.G. § lB1.3(a)(2), comment, (n.2 & backg’d.).
. Subsection 994(0(1) provides, in relevant part:
(7) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect—
(1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of—
(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and
(B) multiple offenses committed at different times....
28 U.S.C. § 994(/) (emphasis added).
. The excerpt from the Senate Report may call into question the interpretation, now widely accepted, that the guidelines may properly permit incremental sentence enhancement for acquitted conduct due to the lessened burden of proof at the sentencing hearing. E.g., United States v. Avert, 922 F.2d 765, 765-66 (11th Cir.1991) (per curiam); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-82 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Dawn, 897 F.2d 1444, 1449-50 (8th Cir.) (dictum), cert. denied, — U.S. -, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989); United States v. Isom, 886 F.2d 736, 738-39 & n. 3 (4th Cir. 1989). But see United States v. Brady, 928 F.2d 844, 850-52 (9th Cir.1991) (acquitted conduct may not be used to enhance guidelines sentence); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam) (“sentencing court was not relying on facts disclosed at trial to punish the defendant for the extraneous offense, but to justify the heavier penalties for the offenses for which he was convicted”).
. In titles 18 and 28, Congress sometimes uses the word "offense” without including other qualifying language. Viewed in context, however, I think this term must be interpreted as a reference to convicted criminal conduct.
For example, in accordance with titles 18 and 28, the Commission is required to assure that its guidelines reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A) (incorporated by reference into 28 U.S.C. §§ 991(b)(1) and 994(f)). Significantly, 18 U.S.C. § 3553 does not come into play unless a defendant "has been found guilty of an offense.” See 18 U.S.C. § 3551 (emphasis added). Moreover, the Senate Report strongly suggests that the term "offense,” as used in this subsection, refers to convicted criminal conduct. S.Rep. No. 225, 98th Cong., 2d Sess. at 76, *432reprinted in 1984 U.S.C.C.A.N. at 3182, 3259 ("the sentence should not ... differ substantially from the sentence given to another similarly situated defendant convicted of a similar offense under similar circumstances”) (emphasis added). Notably, this portion of the Senate Report cross-references 28 U.S.C. § 991(b)(1)(B), which, as we observe infra p. 35, focuses on conduct of which a defendant “has been found guilty.” S.Rep. No. 225, 98th Cong., 2d Sess. at 76 n. 163, reprinted in 1984 U.S.C.C.A.N. at 3259 n. 163.
Another example is provided in 28 U.S.C. § 994(c). In that subsection, Congress directs the Commission to determine the relevance of various factors in establishing categories of offenses for the sentencing guidelines. Id. at § 994(c)(1). Congress lists, as the first factor, "the grade of the offense." Since only charged or convicted offenses are typically graded, this provision suggests that Congress intended the word “offense" to denote the offense of conviction.
. Section 991(b)(1)(B) provides:
(b) The purposes of the United States Sentencing Commission are to—
(1) establish sentencing policies and practices for the Federal criminal justice system that—
(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices!.]
28 U.S.C. § 991(b)(1)(B) (emphasis added).
. To be sure, Congress did not intend these two factors to "eliminate justifiable differences between the sentences of persons convicted of similar offenses who have similar records.” S.Rep. No. 225, 98th Cong., 2d Sess. at 161, reprinted in 1984 U.S.C.C.A.N. at 3182, 3344. Indeed, Congress required the Commission to consider a variety of additional factors and to determine what impact, if any, "would be warranted by differences among defendants with respect to those factors.” Id. However, Congress nowhere enumerates unconvicted criminal conduct as one of these factors. See generally 28 U.S.C. §§ 991, 994; 18 U.S.C. § 3553.
. I observe language to the contrary in United States v. Ebbole, 917 F.2d 1495, 1501 (7th Cir.1990), and support for our decision in United States v. Miller, 910 F.2d 1321, 1329-30 (6th Cir.1990) (Merritt, C.J., dissenting), cert. denied, — U.S.-, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In those drug trafficking cases, quantity does not comprise an element of the crime.
In the present case involving a crime under 18 U.S.C. § 659, quantity does constitute an element of the crime. At least with regard to uncharged separate property crimes, which the government asserts is a basis for the heavier sentence, I am in agreement with the rationale offered by Chief Judge Merritt in Miller, rather than the dictum on this question by the Seventh Circuit in Ebboie.
. The majority appears inconsistent on this point when it also states "section 994(c)(2) gives the Commission full authority to adopt a relevant conduct guideline, although it certainly cannot be said that the Commission was required to do so." Majority Opinion supra p. 420 (emphasis added). Perhaps the majority simply means that it is clear that the statute permits the Commission to follow one course or the other. Given the legislative language and legislative history I have set forth in Part A, this is a difficult argument for the majority to support.
. It could be argued, though, that the relevant conduct guideline promulgated by the Commission infringes upon this traditional authority by mandating increased punishment for such conduct.