concurring and dissenting:
I concur in the majority opinion, with the exception of parts II, B-l and II, B-4, as to which I dissent.
Congress did, no doubt, want to help make victims of crimes whole when it enacted 18 U.S.C. § 3663A. However, Congress also hoped to avoid creating a system that would, essentially, turn criminal sentencing hearings into complicated, prolonged trials of the normal civil variety. See 18 U.S.C. § 3663A(c)(3)(B). Therefore, Congress did not provide that a victim could simply recover the damages that would, or might, be available in a typical civil case. Rather, when it came to defining the nature of restitution in the property area, Congress provided that if an offense resulted “in damage to or loss or destruction of property,” and if mere return of the property would be “impossible, impracticable, or inadequate,” the miscreant should pay an amount that represented “the value of the property on the date of ... loss,” or “on the date of sentencing,” whichever was greater, less the actual value of the part of the property that was returned. Id. § 3663A(b)(l).
No doubt, courts can massage and explicate the “date of loss” concept, but no authority supports doing what the district *1061court did here. See Hughey v. United States, 495 U.S. 411, 415-18, 110 S.Ct. 1979, 1982-83, 109 L.Ed.2d 408 (1990) (scope and amount of restitution limited by language of statute authorizing issuance of restitution order);1 Gamma Tech, 265 F.3d at 927-28 (affirming restitution order that set victim’s loss as of time of overpayment on contracts procured through illegal kickbacks). Indeed, when interpreting identical language of an earlier criminal restitution statute, in a case where the victims had purchased diamonds at an earlier time and were then fraudulently induced to send them to the defendant to sell, we stated:
The VWPA grants the sentencing judge substantial discretion over the entire process leading to an ultimate restitution order. As part of the process, the judge must decide in a particular case, whether the imposition of the order will unduly complicate or prolong the sentencing process. Here, the district court determined the amount of restitution based upon evidence presented at trial and in a presentence report showing the value of the diamonds at the time they were initially purchased by the victims.... While the district court has discretion in ordering restitution, ... the award must be within the statutory framework. Because the amount of restitution ordered in this case was based neither on the value of the diamonds on the date of loss, nor on their value at the date of sentencing, the restitution order was beyond the authority granted by the statute. Although valuing the diamonds as of the date of loss or sentencing may present a difficult determination for the district court, the choice of two possible dates of valuation is stated unambiguously in [the VWPA]. We must therefore remand to the district court for valuation of the diamonds on one of those two dates.
United States v. Angelica, 859 F.2d 1390, 1394 (9th Cir.1988) (internal quotation marks and citations omitted).
It seems to me that when an item is stolen from someone, that is the date upon which the person lost it. The concept that he lost it on some other date to be determined in the future, perhaps many years later, does not take account of the normal use of language. Usually we think of something as “lost” when it has been parted with or when it has gone out of our possession. That is the date that we suffer our loss.
Of course it can be argued that if the person had kept the item it would have been worth a lot more a few years later, or a lot less, or at some point more and at a later point even less, but that is decidedly not the date that the property was lost; it is not the date that Congress selected. Congress selected the date that the loss truly occurred; that is when the property was lost to the victim.
Nor am I able to accept the proposition that the property is not lost until the victim knows that it is gone. When a dia*1062mond is stolen from a victim’s jewelry box, or a share of stock from his portfolio, it is lost to him, whether he knows that or not. Surely the date that he loses the piece of property should not depend upon the sophistication of his inventory process, or upon his memory of precisely where it ought to be at some precise time. It is undoubtedly lost on the date it is taken from him, regardless of how quickly he discovers that.
Finally, the thought that a district court can choose to adopt the complex system of deciding loss that was adopted by the district court in this case, or can choose to adopt some other view of when a loss takes place, does not help very much. Discretion in the legal world is not the unfettered right to do whatever you like. We have always been admonished that, at the very least, the asymptotes bounding judicial discretion are composed of a proper assessment of the facts and the law. See, e.g., Koon v. United States, 518 U.S. 81, 97-100, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); Retail Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir.2003); Montrose Chem. Corp. of Cal. v. Am. Motorists Ins. Co., 117 F.3d 1128, 1133 (9th Cir.1997); United States v. Schlette, 842 F.2d 1574, 1577 (9th Cir. 1988); cf. Olvera v. Giurbino, 371 F.3d 569, 573-74 (9th Cir.2004) (saying that it has discretion but must exercise it in a particular way). Thus, a judge who does not wish to engage in the complex exercise approved of here will have to try it out first — entertain it in order to see if it can be discretionarily rejected.2 He may even have to consider other more complex possibilities. That, again, is far from calculating the values on one of the two easily determined discreet dates selected by Congress.3
In addition, I see no basis for considering prejudgment interest to be a part of criminal restitution where an item of property was taken, and we are referred to no case where that has been done. In fact, absent other facts, it is rank speculation to say that if a person had the asset, whatever it was, he would have kept it, or earned interest on it, or earned interest on the equivalent of its value.
In fact, every similar case that I have discovered deals with a situation where the property taken was “money,” and that money was being loaned at a given interest rate or was contained in an interest bearing account or instrument when it was taken. See, e.g., United States v. Morgan, 376 F.3d 1002, 1014 (9th Cir.2004) (contractual interest on credit card charges); United States v. Smith, 944 F.2d 618, 620, 626 (9th Cir. 1991) (defendant falsified loan applications and subsequently defaulted on inadequately secured loans); see also United States v. Shepard, 269 F.3d 884, *1063886 (7th Cir.2001) (money stolen from interest-bearing account); Virgin Islands v. Davis, 43 F.3d 41, 46-47 (3rd Cir.1994) (fraudulently acquired certificates of deposit); United States v. Hoyle, 33 F.3d 415, 416-18, 420 (4th Cir.1994) (student loan fraud); United States v. Patty, 992 F.2d 1045, 1047-48, 1049-50 (10th Cir. 1993) (bank loan fraud); United States v. Rochester, 898 F.2d 971, 982-83 (5th Cir. 1990) (restitution included outstanding balance and accrued interest on bank loan); cf. United States v. Simpson, 8 F.3d 546, 548, 552 (7th Cir.1993) (affirming a restitution award that included interest on some victims’ losses from fraudulent investment schemes where swindler had, inter alia, misrepresented guaranteed rate of return); United States v. Stephens, 374 F.3d 867, 869-70 (9th Cir.2004) (restitution order for past due child support payments may include prejudgment interest where state law mandates that interest be paid on delinquent child support obligations). Indeed, where the misappropriated property, although cash or cash equivalent, was not interest bearing property, other circuits have determined that restitution does not properly include prejudgment interest because “a criminal penalty does not bear interest,” and the courts were hesitant to infer additional criminal penalties beyond those specifically provided by statute. See United States v. Rico Indus., Inc., 854 F.2d 710, 711-12, 714 (5th Cir.1988) (reversing order to pay prejudgment interest on amount ordered to be paid as restitution for criminal kickback scheme); United States v. Sleight, 808 F.2d 1012, 1014-15, 1020 (3d Cir.1987) (same).4 In a true money-at-interest case, the interest can be said to be a part of the property taken on the date of the loss itself, or, at worst, on the date of sentencing. Either the miscreant has agreed to pay interest, or the funds from which the money were taken did pay interest. At any rate, those cases are no authority for the proposition that prejudgment interest should be awarded each time an item has been lost to one of society’s rascals or rogues.
Of course, nothing I have said is intended to detract from or denigrate a victim’s multitudinous remedies in a typical civil case. But a typical civil case is designed to explore the many nuances involved in determining just how much damage was inflicted upon the victim by the wrongdoer. As we all know, that can involve months and years of litigation, expensive discovery proceedings, motion proceedings, and all of the other things that go into the mix of arriving at a just result in a civil case. That is not this case. In fine, we should not inflict this sort of thorny complexity upon all of the district courts in this circuit, even if a few district judges enjoy embracing this genus of legal cacti.
Thus, I concur, except in the portions already indicated, as to which I respectfully dissent.
. Hughey and other cases cited in this section discuss § 3663 (or its predecessor statute formerly codified at 18 U.S.C. § 3579) whereas Gordon's restitution was ordered under § 3663A. Section 3663 permits restitution for crimes that do not fall within § 3663A, whereas § 3663A mandates restitution for certain specified crimes. The relevant text in each section, is the same. Compare 18 U.S.C. § 3663(b)(1), with id. § 3663A(b)(l). An-ghey was modified by enactment of and amendments to § 3663, but the differences do not involve the merits of Gordon’s challenges to his restitution order. See Hughey, 495 U.S. at 413 n. 1, 110 S.Ct. at 1981 n. 1 (discussing recodification of §§ 3579-80 at §§ 3363-64); United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 n. 10 (9th Cir.2001) (describing effect of amendments to § 3663 on the holding of Hughey).
. We engage in self hypnosis when we think that this case will not be used to argue that a district court has abused its discretion if it has failed to consider the factors outlined in the majority opinion. As we have so often seen, a panel’s bewitching of itself will not ensorcel either counsel or other judges once a decision is on the books.
. In fact, in the case at hand the district court had no clue about what date to use. Why not say that Cisco would have sold the embezzled shares on the date the price was lowest, which was when it sold its remaining shares? Or highest? Or ... ? And if the principle spelled out by the majority does not apply where Cisco failed to sell all shares of a security because it is too speculative to say it would have sold the embezzled shares (see footnote 5 of the majority opinion), why is it not equally speculative to say that Cisco would have sold any of the embezzled shares before the date of its last sale?
. Restitution in Rico and Sleight was awarded under the Federal Probation Act, which, like § 3663A, made no reference to prejudgment interest. See Sleight, 808 F.2d at 1019.