dissenting.
I respectfully dissent. This case is yet another example of how the sentencing guidelines as currently construed result in fundamental unfairness to defendants and unnecessary appeals.
As the majority points out, Michael Sheah-an was initially charged in a ten-count indictment. After lengthy negotiations, nine of the ten counts were dismissed pursuant to a written stipulation between the parties. The nine dismissed counts all related to a charge that Sheahan willfully and knowingly conspired with the president of the Mercantile Bank, Larry Vogt, to defraud the bank of more than $350,000. Count X related to three insufficient funds checks written on the Mark Twain Bank.
After the stipulation was signed, Sheahan changed his plea to guilty of Count X. At the change of plea hearing, Sheahan was told that “[t]he offense set forth in Count X carries a maximum sentence of imprisonment of twenty years.” Change of Plea Tr. at 12. He was further told that the probation office would prepare a report, he would have the right to challenge any information in the report, and he had the right to appeal any sentence imposed. Sheahan was asked to describe his conduct with respect to count X, which he did in some detail. He stated that the amount involved was $110,440. The government then made a lengthy statement describing its version of the entire course of conduct, including information that related to the dismissed counts. The court then said:
*604I understand what has been stipulated to and I understand that Mr. Sheahan’s plea relates to only one of the Counts in this Indictment and that some of the other information that Mr. Reap [the prosecutor] is relating may not have application to the charge to which he’s pleading guilty, but some of the other charges, if we were to proceed to trial on this case, — I can separate the two and I just want you all to understand that I am considering the plea of guilty only as to Count X and my purpose is to make sure that Mr. Sheahan is in fact pleading guilty to that offense and that the facts are there that support the plea to Count X.
Id. at 21 (emphasis added). The court went on to state:
I should tell you this[,] Mr. Sheahan, I had a meeting yesterday with Mr. Reap and Mr. Morse [Sheahan’s attorney] and Mr. Donning, who I understand represented you in some civil matters, and I understand that you are naturally concerned about what your sentence is going to be in this case. As you know, no one, — I can’t promise you, I can’t tell you what I’m going to do in the future as far as your sentence. It may be that you would be eligible for probation for this charge or it may be that I find that it’s appropriate that a sentence of imprisonment be imposed. Certainly if that happens, if it turns out that the sentence is one to which you disagree or are not anticipating, then you will not be permitted to withdraw your, — you will not have an absolute right, I’ll put it that way, to withdraw your guilty plea, alright? Let me be more clear. If a sentence of imprisonment is imposed, say as opposed to probation, at that time, you or your lawyer may file a motion requesting that you be allowed to withdraw your guilty plea. However, there is no guarantee that I will grant that motion and thereby allow you to withdraw your guilty plea, do you understand that?
Id. at 26-27.
Sheahan was not told at the change of plea hearing that his sentence would be based, at least in part, on conduct alleged in the first nine counts of the indictment. Nor was this fact set forth in the stipulation leading to the change of plea. It can be argued that both Sheahan and his attorney were aware of this possibility, but in my view, that is not sufficient. There is no reason why the district court in this case and others similar to it should not fully advise a defendant that conduct alleged in dismissed counts, if established by a preponderance of the evidence, must be considered by the court in imposing a sentence.1 Furthermore, the time to resolve disputed issues as to relevant conduct is at the time of the plea.
In nearly all cases, sentencing data with respect to relevant conduct is just as available at the time of the guilty plea as at the time of sentencing. A defendant has a right to know before his plea what the consequences of that act will be. At the very least he should be told explicitly that conduct alleged in the dismissed counts will or will not be used in determining his sentence. It is a complete waste of the trial court’s time to tell the defendant the maximum statutory sentence for the count to which he has pleaded guilty when that maximum has no significance under the current sentencing guidelines system.
If Sheahan had been explicitly told that the conduct alleged in the dismissed counts would be a major factor in determining the length of time he would serve, he may or may not have pleaded guilty. In either event, he would have been treated more fairly and an appeal might have been avoided. Under the circumstances of this case, I believe that this matter should be remanded to the district court, and the defendant should be given an opportunity to withdraw his guilty plea if he desires to do so.
*605I turn next to the issue discussed by the majority. First, assuming that the dismissed counts can be considered relevant conduct for sentencing purposes, did the district court err in finding that Sheahan’s conduct with respect to the dismissed counts was criminal? The district court simply found that Sheahan knew that his accounts at Mercantile Bank were closed. This finding was essentially based on the testimony of Drew Armstrong, a special agent of the FBI. He testified that the bank’s board of directors had ordered Vogt, the president of the bank, to close Sheahan’s two accounts and that the accounts had been closed pursuant to that order. Yet the bank continued to honor checks written by Sheahan and did this over a period of fourteen months. In each instance Vogt would convert the cheek into a loan and increase Sheahan’s debt to the bank. At the sentencing hearing the following colloquy ensued between Mr. Reap, the prosecutor, and Agent Armstrong:
Q. Okay. You interviewed Mr. Sheahan, did you not?
A. Yes.
Q. And did Mr. Sheahan indicate to you that he knew Mr. Vogt was doing this?
A. I can’t remember. I’d have to look at the report of the interview of Mr. Sheahan. I can’t remember whether he was aware of that or not.
Q. If I showed you your FBI interview, would it refresh your memory?
A. Yes.
Q. Why don’t you look on page two, but look through the entire report if you wish.
A. According to the interview, Mr. Sheahan did know that and now I remembered he said that that was something he thought — he didn’t think that was out of the ordinary. He thought Mr. Vogt was doing that so he’d have more control over the account.2
Sent.Tr. (Nov. 16, 1993) at 31. The district court accepted this testimony, and so do I, but it certainly fails to prove by a preponderance of the evidence that Sheahan knew that he was participating in an illegal scheme. At most it establishes that he knew these ae-counts were closed, not that his check writing was illegal.
' Second, assuming Sheahan’s conduct was illegal, the question remains, what was the loss to the bank? The district court determined the loss from the conduct alleged in the dismissed counts to be $338,738.50. It based its decision on the testimony of bank officials that the bank had written off this amount: “the debt of $338,000 was charged off, that was based on the bank’s belief that this loan was not collectable.” Sent.Tr. (Nov. 17-18, 1993) at 244, 271, 351. The fact is, however, that the $338,000 may not, and probably does not, represent the loss to the bank. It is very probable that the loss was substantially less than that. We do not know how much less because the sentencing court refused to receive testimony that would have tended to show that the bank suffered no loss at all. The undisputed fact is that Sheahan had substantial claims against the bank, and the bank had claims against Sheahan. Ultimately the parties stipulated to settle all lawsuits. At the sentencing hearing Sheah-an’s counsel called as an expert witness David Danis, the attorney who represented Sheahan in settling the civil claims. At that time the following colloquy occurred:
Q. [By Mr. Morse] Mr. Danis, you testified you negotiated the settlement on the lawsuit between Mr. Sheahan and Mercantile Bank.
A. Yes.
Q. And in your negotiation of that settlement, did you analyze what rights or what claims or the value of those claims that'you were recommending your client give up in exchange for a release from Mercantile Bank?
A Yes.
Q. And what did your analysis show?
MR. REAP: I’m going to object to the relevance.
Id, at 419-20. The court sustained the government’s objection. I believe the sentencing court erred in so doing.
*606In imposing-the sentence on Sheahan, the court stated:
- Under the sentencing guidelines, the amount of loss in fraud cases like this is either the amount that the defendant intended to inflict on the victim, or the actual loss resulting from the defendant’s fraudulent conduct, whichever is greater.
In this case, the Court finds that there was an actual loss of $30,000 with respect to Mr. Führer, and with respect to the bank there was an actual loss of $338,-738.50, and that represents the amount that was left outstanding after the loans were called. This was the amount that the bank charged off after determining that that amount was uncollectable.
Consequently, the Court finds that the actual loss in this ease is more than $350,-000, although it is not more than $500,000, as the presentence report reflects.
Although a lot of the evidence that was presented related to the issue of the amount of loss that the defendant intended to inflict, I don’t believe it’s necessary to determine that, because there is evidence of actual loss that was sustained by the victims, and I believe that Mr. Führer is— Mr. Fuhrer and Mercantile Bank are victims, and there is evidence of actual loss that they sustained that results from the defendant’s fraudulent conduct.
Sent.Tr. (Nov. 19, 1993) at 13-14.
As the majority points out, the guidelines permit a court to sentence on the basis of the intended loss or the actual loss, whichever is greater. Here the district court sentenced Sheahan on the basis of the actual loss, obviously because there was no evidence as to the intended loss. Thus, we must review its action on the basis that it decided the ease. This being so, we have no alternative but to remand for resentencing with direction to the district court to determine the actual loss after hearing Sheahan’s evidence on that issue.
In summary, I dissent because I believe that the district court should not consider evidence concerning possible loss arising out of conduct alleged in the dismissed counts, and that the district court’s findings on Sheahan’s culpability and the amount of the bank’s loss are clearly erroneous.
. I recognize that this court has held that acts or quantities alleged in dismissed counts can be used in calculating the base offense level of a defendant where they were a part of the same course of conduct or common scheme or plan as the count of conviction. See, e.g., United States v. Streeter, 907 F.2d 781, 791 (8th Cir.1990). This holding does not excuse the failure to so advise a defendant at the time a plea of guilty is received. My personal view continues to be that the holding denies defendants due process, but I am bound by our decisions on the point.
. The FBI interview was not made a part of the record.