with whom LAY, Circuit Judge, joins, dissenting.
I.
The court took this case en banc to review a single issue: Whether Mooney’s sentence should be remanded to the district court for further proceedings in light of United States v. Booker,-U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I dissent from the court’s interpretation of section 2B1.4 of the federal sentencing guidelines. I dissent from the court’s application of plain error review in the context of Booker error, and I urge'the Supreme Court to resolve the circuits’ split on this issue, to eliminate the geographic crazyquilt by which many criminal defendants, sentenced for similar conduct and crimes, receive dissimilar appellate treatment under Booker and, in many cases, disparate sentences.
I add a further comment relating to the sentencing decision by the majority. The necessity of future proceedings in the district court — whatever decision that court may make — renders unnecessary and inconsequential this court’s discussion in this case relating to the sentence. The district court, by its November 30 order,8 appears to have retained jurisdiction to alter Mooney’s sentence. Thus, when Mooney’s appeal is complete, the district court may conduct further proceedings concerning Mooney’s sentence. If the district court, pursuant to the provisions in its November 30 order, leaves the sentence as originally imposed or if the district court reduces the sentence, the opinion of the en banc court will stand for naught.
With these comments, I nevertheless address and dissent from the majority opinion.
II.
A.
The opinion for the court is at pains to explain that the term “gain resulting from the offense” in USSG § 2B1.4 envisions that the punishment depends on the gyrations of the stock market. I dissent from the court’s decision on this point. We cannot know what the “gain resulting from the offense” is, without first knowing what “the offense” is. We must look to the statutes and regulations to find this out. Those authorities do not support the court’s opinion.9
*1106Of the four statutes Mooney was convicted under, only one is referenced to USSG § 2B1.4. That statute is 15 U.S.C. § 78j(b) (as elaborated by 17 C.F.R. § 240.10b-5).10 See USSG App. A. “The offense” is not the purchase of stock itself, but the use of a manipulative or deceptive contrivance in connection with the purchase. 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. The offense inheres not in the purchase itself, but in any deception that may be entwined with the purchase.
There in the plain language of the statute: The offense is not the purchase, but the deception. The “gain resulting from the offense” is not the gain resulting from the purchase. It is, rather, the gain resulting from the deception.
The gain resulting from the deception stops when the deception stops, though there may be later gain (or loss) as the stock market gyrates along, unmolested by any deception. If someone buys stock illegally on the basis of insider knowledge, there may be an increase in the stock’s value when the insider knowledge is made public. That increase is illicit, resulting from a kind of deception to the other buyers and sellers of the stock. After the market adjusts to this information and the deception is ended, the value of the stock will, of course, continue to fluctuate according to the ordinary, legitimate vagaries of the market — with no deception— and thus, no offense under 15 U.S.C. § 78j — involved. Thus, if the person holds the stock for another five years after the insider knowledge has been made public, the value of the stock will continue to rise or fall regardless of the prior deception.
B.
Even if the plain language of the statute did not clearly tell us what “the gain resulting from the offense” is, the interpretation the court adopts would be unreasonable. The reasonableness of an application of ambiguous Guidelines language depends in many respects on whether it would promote the uniformity of sentences for similarly situated defendants. Cf. United States v. Booker, — U.S.-,-, 125 S.Ct. 738, 761, 160 L.Ed.2d 621 (2005) (“Congress’ basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute .... It consists, more importantly, of similar relationships between sentences and real conduct, ....”)
The court’s interpretation of USSG § 2B 1.4 does not promote uniformity. To the contrary, it could result in unequal sen*1107tences for equal crimes. I give an example below. .
Assume that Larry, Moe, and Curly are executive officers of a corporation with insider knowledge. They each separately, at the same time, with the same insider’s knowledge, buy 1,000 shares of stock at a price of five dollars per share. Four Weeks later, the insider knowledge is made public, and after the fifth week that knowledge has been absorbed by the market and the stock price reflects that knowledge. On the day the knowledge can be said to have been absorbed by the market, the stock price has risen from five dollars per share to fifteen dollars per share.
On that day, Larry sells the 1,000 shares he bought, making $10,000-all- of which is illicit gain, arising entirely from his exploitation of insider knowledge. Moe and Curly, whose portfolios- on that day reflected the same $ 10,000 increase in value, each hang on to their 1,000 shares. Three months later, the stock price has soared to fifty dollars per share. Moe sells, pocketing total capital gains of $45,000-including a $10,000 increase from Moe’s exploitation of insider knowledge, and a $35,000 increase owing to the ordinary vagaries of the market, untainted by any deception. Curly does not sell for a substantial period of time. Six months later, the market crashes, the stock price plummets, and Curly sells out at two dollars per share.
Larry, Moe, and Curly committed the same crime, with the same effect on the market. If the “gain resulting from the offense” were the gain from the deception, the Guidelines would suggest the same increase (of two levels) over the base offense level for Larry, Moe, and Curly. See USSG § 2B1.4; § 2Bl.l(b). On the court’s- interpretation, however, Larry would receive a two-level increase, for a $10,000 gain, Moe a six-level increase for a $45,000 gain, and Curly no increase at all, because he lost money on the purchase. See id. If these increases were applied to a base offense level of 17 for a defendant with a criminal history category of I, as in Mooney’s case, they would translate into additional minimum prison time of six months in Larry’s case, a year and ten months in Moe’s case, and no additional time in Curly’s case. As I have noted above, the court’s interpretation means unequal justice for equal crimes.
As the Supreme Court has recently said, the basic purpose of the Guidelines “was to move the sentencing system in the direction of increased uniformity,” a uniformity that consists of “similar relationships between sentences and real conduct[.]” Booker, 125 S.Ct.' at 761. It is unreasonable to apply the Guidelines in a way that would lead to such disparate sentences for similarly situated defendants whose real conduct was identical. Such an application would create a through-the-looking-glass inversion of the Guidelines — advising unequal sentences for identical crimes — defeating the chief purpose of the Guidelines.11
*1108The majority view cannot and should not be the rule. The Supreme Court recently indicated in a civil stock deception case that the ups and downs of the stock market are not causative of loss to the deceived parties. In Dura Pharmaceuticals v. Broudo, — U.S.-,-, 125 S.Ct. 1627, 1632, 161 L.Ed.2d 577 (2005), the opinion by Justice Breyer for a unanimous court stated:
When the purchaser subsequently resells such shares, even at a lower price, that lower price may reflect, not the earlier misrepresentation, but changed economic circumstances, changed investor expectations, new industry-specific or firm-specific facts, conditions, or other events, which taken separately or together account for some or all of that lower price. (The same is true in respect to a claim that a share’s higher price is lower than it would otherwise have been-a claim we do not consider here.)
The terms gain and loss are ordinary words with meanings that are similar whether they are used in a civil or a criminal context. If those gains are not a causative factor in a civil fraud or deception case, that obvious concept should not apply in the criminal case, where the stakes for a defendant relate not to money but to freedom from incarceration.
The majority opinion rejects the application of the civil cases of MacDonald and Dura to the present criminal case — yet, cites no caselaw, civil or criminal, to support its theory of sentencing.12
III.
I join Judges Heaney, Arnold, Bye, and Smith in dissenting from the court’s test, announced in United States v. Pirani 406 F.3d 543 (8th Cir.2005), for conducting plain error review of sentences that are erroneous under Booker. Id. at 555-562 (Heaney, J., dissenting); id. at 562 (Arnold, J., with whom Smith, J. joins, dissenting); and id. at 562-567 (Bye, J., concurring in part, dissenting in part). Judge Bye’s excellent concurring and dissenting opinion in Pirani thoroughly explains the problems with the standard the court has announced. I incorporate and adopt Judge Bye’s opinion. I only emphasize a couple points.
As many courts have observed, the crux of the problem for conducting plain error review of Booker error is that (a) the essential question is whether the sentencing judge would have given a lighter sentence under advisory sentencing guidelines but (b) by the nature of the case, we will usually have no way of knowing.
*1109Faced with this conundrum, this circuit has said to defendants, in effect, “tough luck,” and left it at that. Worse, the court has said that the single relevant objective fact that is likely to appear in the record— namely, a sentence at the bottom of the applicable guideline range — is not enough to indicate the requisite “reasonable probability” that the sentence would be lower under advisory guidelines.
The court’s willingness to apply here a doctrine that purports to resolve claims of legal error by posing a question that cannot, in the nature of the case, be answered suggests only that the court does not want to bother with most cases of unpreserved Booker error.13
IY. CONCLUSION
For the reasons stated above, I would remand this case to the district court for further proceedings.
. The district court's order reads, in pertinent part:
The defendant Michael Alan Mooney is hereby ordered immediately released from the custody of the United States Bureau of Prisons. Mr. Mooney's release shall last until disposition of his direct appeal to the United States Court of Appeals in No. 02-3388 and until this Court issues a further order concerning Mr. Mooney's sentence following disposition of the appeal, all pursuant to 18 U.S.C. § 3143(b).
. The opinion for the court correctly observes that the commentary to USSG § 2B1.4 appears to define "gain” as "the total increase in value realized through trading in securities by the defendant.” Slip op. at 9. See also USSG § 2B1.4, cmt. background (2002). As the commentary explains, in insider trading cases "gain” is the relevant concept, because it would be unworkable to try to identify specific victims and their losses.
But of course it is not enough to define "gain.” We then must know what “the offense” is, because the guideline does not look to "gain” simply, but to the "gain resulting from the offense.” Indeed, simply to take the definition of "gain” without limiting it to gain "resulting from the offense” would lead to absurd results. It is not all the defendant’s stock gains — over an entire lifetime of stock trading, perhaps — that counts, but only the stock gains “resulting from the offense.”
The guideline commentary does not define or discuss the key words here: “resulting *1106from the offense.” Fortunately, however, the plain language of the statute makes it clear what "the offense” is.
. 15 U.S.C. § 78j states:
It shall be unlawful for any person, directly or indirectly........
(b) "To use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe .... ” (Emphasis added).
17 C.F.R. § 240.10b-5 states:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
. In a thoughtful opinion deciding a civil securities fraud matter, the First Circuit, en banc, considered similar hypothetical and reached a similar conclusion:
Granted that it may add to the deterrent effect of the [Securities Exchange] Act every time the [Securities and Exchange] Commission conceives of a ground for assessing greater liability, to charge one class of insiders more than others who had committed precisely the same fraudulent act does not seem to us to meet any definition of “equitable.”
SEC v. MacDonald, 699 F.2d 47, 54 (1st Cir.1983) (en banc).
The majority opinion states that MacDonald has nothing to say to us, because it was a civil case and this is a criminal case. Slip op. at 11. It is - surely true that the MacDonald court was not interpreting the “gain resulting from the offense” language in the sentencing guidelines. The court was, however, considering how to quantify the "profits and interest wrongfully obtained” from insider trading. See MacDonald, at 54 (quoting SEC v. Blatt, 583 F.2d 1325, 1335 (5th Cir.1978)).
*1108The "profits and interest wrongfully obtained” from insider trading clearly bears a close relationship to the "gain resulting from the offense” of insider trading. The majority opinion suggests, however, that the quantity of such gain or profits may be different when it goes to the amount of money that must be disgorged in a civil case than when it goes to the amount of time that must be served in prison in a criminal case. Slip op. at 7-8. The majority opinion does not explain this point. I do not understand how the gain or profits from a single act of insider trading could be, say, $1,000.00 when the Securities and Exchange Commission sues the perpetrator, but be $5,000.00 when the Department of Justice prosecutes the perpetrator. The difference between civil and criminal cases is not so great as that. Cf. Mayle v. Felix, - U.S.-, ——-, 125 S.Ct. 2562, 2570-72, 162 L.Ed.2d 582 (2005)(interpreting language in a criminal context with reference to interpretations of the same language in a civil context).
. As the Larry, Moe and Curly hypothetical illustrates, the majority interpretation of the applicable guideline in effect is figuratively imposing sentence on the throw of the dice-— the ups and downs of the stock market. I know that sentences under the guidelines have often been subject to harsh criticism as unfair and sometimes irrational and unrealistic, but until today I did not realize that sentences can rest on the gamble of the stock market as in this case: the higher market price and gain a long time after the offense produces a greater sentence, but a lower market price and a lesser gain or a loss causes a lesser sentence. That approach for me doesn't make much sense.
. As the court's opinion in Pirani notes, some circuits have adopted the sensible approach—favored by Judges Arnold and Smith in Pirani—of simply asking the sentencing judge whether the judge would give a lower sentence under advisory guidelines. (Since Pirani was decided, the Ninth Circuit has also adopted a limited-remand approach in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).) The Pirani court strained to justify rejecting this sensible approach. That approach is not available, the court said, because a passage of dicta in Booker is actually a binding "command.” See Pirani, 406 F.3d at 552. This "command[ing]” dicta, the court said, requires us to apply ordinary prudential doctrines. Id. (Emphasis in original). And, the court said, ordinary prudential doctrines include “the plain error test.” Id. (Emphasis in original). And asking the sentencing judge to answer an otherwise unanswerable question would, the court reasoned, not be ordinary, but would create a new plain error test to be performed by the district courts. See id. This line of reasoning puts more weight on italics than any typographical device can bear — even supported by the innovative concept of commanding dicta.