117 F.3d 678

LUMBARD, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority’s affirmance of Trupin’s conviction, but write separately because I view the application of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to this ease somewhat differently than does the majority, and because I dissent from the affirmance of Tru-pin’s sentence, which fails to establish adequate principles for sentencing possession offenses. I would remand for resentencing.
The statutory provision at issue here — 18 U.S.C. § 2315’s prohibition of possession of certain stolen property- — is a constitutional exercise of Congress’s commerce power. Under Lopez Congress’s commerce clause power extends to three categories of activity:
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.
Id. at 558-59, 115 S.Ct. at 1629-30 (citations omitted). Two types of regulation fall within Lopez’s third category: first, “regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce,” id. at 561, 115 S.Ct. at 1631, and second, those regulations containing a jurisdictional element “which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce.” Id.
Section 2315’s possession provision can be upheld under Lopez’s third category as a regulation of an activity that substantially affects interstate commerce. Although possession itself is not a commercial activity, § 2315 as a whole clearly is directed toward regulating interstate commerce in certain stolen property by prohibiting transactions in such property. The statute’s possession provision aids that regulatory scheme by criminalizing the demand side of the market in stolen goods, and thus Congress rationally could conclude that the provision is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561, 115 S.Ct. at 1631.
For the same reason, however, § 2315’s possession provision cannot also be upheld as a first-category regulation of the channels of interstate commerce. The citations in Lopez demonstrating that “Congress may regulate the use of the channels of interstate commerce,” 514 U.S. at 549, 115 S.Ct. at 1629, each deal with the actual transportation of people or items in interstate commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 357, 13 L.Ed.2d 258 (1964) (“The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution”) (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 196-97, 61 L.Ed. 442 (1917)); United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941) (“Congress ... is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious”). “Thus, it seems clear that the first category of Commerce Clause authority outlined in Lopez concerns Congress’s power to regulate, for economic or social purposes, passage in interstate commerce of either people or goods.” United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir.1996) (Alito, J., dissenting), petition for cert. filed, 65 U.S.L.W. 3755 (U.S. April 30, 1997) (No. 96-1738).
Possession, as opposed to transportation, does not use the channels of interstate com-meree, and therefore does not fall within the first Lopez category. See United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996) (“[Although it may be true that Congress must regulate ... even mere possessions ... in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce. This rationale is therefore an aspect of Congress’s broader power to regulate things ‘affecting’ interstate commerce.”). Consequently, a majority of circuits that have considered Lopez challenges to other possession offenses have upheld the respective statutes only under Lopez’s third category. See United States v. Knutson, 113 F.3d 27, 31 (5th Cir.1997) (addressing 18 U.S.C. § 922(o)); Rybar, 103 F.3d 273, 283 (“we hold, that the authority of Congress to enact § 922(o) under the Commerce Clause can be sustained under the third category identified” in Lopez); Kenney, 91 F.3d 884 (§ 922(o)); United States v. Michael R., 90 F.3d 340 (9th Cir.1996) (18 U.S.C. § 922(x)(2)). Like those statutes, § 2315 by its terms does not regulate the passage of goods. Rather, by prohibiting transactions in, and even possession of, property once it has been in the channels of interstate commerce, the statute inhibits— i.e., affects — interstate commerce in such property without directly regulating the property’s passage in the channels of commerce. As a result, it too can be upheld only under Lopez’s third category.
Although I agree for the most part with the district court’s sentencing approach, I dissent from the majority’s affirmance of Trupin’s sentence, which fails to set forth principles under which Trupin should have been sentenced. The commentary to the applicable sentencing guideline, section 2B1.1, states that
[l]oss means the value of the property taken, damaged, or destroyed.... Loss does not include the interest that could have been earned had the funds not been stolen....
In stolen property offenses (receiving, transporting, transferring, transmitting, or possessing stolen property), the loss is the value of the stolen property determined as in a theft offense.
U.S.S.G. § 2B1.1, comment, (n. 2). Underlying this commentary is a general policy favoring loss valuation as of the time the defendant first took the property. Thus, in typical theft and fraud cases, we have routinely read this application note, and the analogous commentary to section 2F1.1, see U.S.S.G. § 2F1.1, comment, (n. 7), to require calculation of loss based on the value of the property taken, without regard to subsequent disposal or return of the stolen property or funds. See United States v. Arjoon, 964 F.2d 167, 172 (2d Cir.1992) (“‘Loss’ is, therefore, not the ultimate harm suffered by the victim, but is rather the value of what was taken.”); United States v. Brack, 942 F.2d 141 (2d Cir.1991).
The commentary’s instruction that loss not include interest that could have been earned on stolen funds, relied upon by the district court here, furthers this policy by excluding from the loss calculation amounts that were speculative and prospective when the defendant first took or received the property or funds. Thus, those circuits that have interpreted the interest provision as allowing promised rates of return to be included in the loss figure have done so precisely because the commentary “allows for a distinction to be made between the types of interest based on the level of certainty with which the interest was due.... Inherent in th[e guideline’s interest exclusion] is a degree of speculation....” United States v. Allender, 62 F.3d 909, 917 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 781, 133 L.Ed.2d 732 (1996); see United States v. Goodchild, 25 F.3d 55, 65-66 (1st Cir.1994) (including contractually-specified interest in loss figure); United States v. Henderson, 19 F.3d 917, 928 (5th Cir.1994) (same); United States v. Lowder, 5 F.3d 467, 471 (10th Cir.1993) (same); cf. United States v. Hoyle, 33 F.3d 415, 419 (4th Cir.1994) (reversing inclusion in loss figure of interest which represented only time-value of stolen funds).
In light of this policy of excluding loss which was speculative when the defendant took the property, the most sensible reading of the commentary’s directive that loss in possession cases be “determined as in a theft offense” is that loss means, not the value of the property when the defendant’s possession of it ceased, but the “value of the property taken” — i.e., at the time the defendant took it. Subsequent appreciation in the property’s value should not be included because, like the interest excluded from the Guidelines’s definition of loss, it is speculative. Indeed, to read the guidelines and commentary as requiring that loss be valued as of the time possession terminated would measure loss by the ultimate harm to the victim, the precise scheme that we have rejected in Arjoon and other cases.
The government’s argument to the contrary errs both as a matter of interpretation and policy. The government relies largely on the relevant conduct principles of the Guidelines, under which a defendant is responsible for “all harm that resulted from the acts and omissions,” U.S.S.G. § lB1.3(a)(3) (emphasis added), that occurred during the offense of conviction. But this general definition of relevant conduct factors is qualified by the commentary to section 2B1.1, which, as explained above, directs that loss be measured as of the time the stolen property was taken. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993) (“commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it ... is inconsistent with, or a plainly erroneous reading of, that guideline.”) Moreover, Guidelines § lB1.3(a)(3) does not even support the government’s argument. The general prescription that “all harm” resulting from the offense be included dictates that property in a possession offense be valued, not so much as of the date of the termination of the offense, but at its highest value during the course of the offense. Thus, had the value of the Chagall risen even higher between 1978 and 1990 before settling at its 1990 value, reliance on section lB1.3(a)(3) would support a loss valuation at the highest figure, which, no less than the value of the painting in 1990, would be “harm that resulted from the acts and omissions” of Defendant. The government does not urge that loss be determined by reference to the property’s highest value during the course of the offense. But its logic nonetheless compels this result rather than valuation of the painting as of the termination of Trupin’s offense, and thus compels rejection of the government’s argument.
Under ordinary circumstances, therefore, the loss from Trupin’s offense would be measured as of 1986, when the offense for which he was convicted began. Given that Trupin actually came into possession of the painting in 1978, it would be within the district court’s discretion under the Sentencing Guidelines’ relevant conduct provisions to choose the 1978 figure. See U.S.S.G. § 1B1.3 (stating relevant conduct principles). But the record does not reflect that the district court contemplated the possibility of using a figure from 1986 and consciously chose instead to consider the 1978 figure. As a result, barring reliance on the district court’s alternative basis for arriving at Trupin’s adjusted offense level — a downward departure which need not be addressed in light of the majority’s disposition of the sentence — I would remand the case for resentencing in light of the foregoing principles.
. As there seems no relevant basis for distinguishing the possession provision in § 922(x)(2) from that in § 922(o), Michael R. implicitly conflicts with United States v. Rambo, 74 F.3d 948 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996), cited by the majority, which upheld § 922(o) under Lopez's first category.

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