I concur in the majority’s conclusion that the Guidelines preclude the district court from first concluding that the 2500 kilogram conspiracy was established by a preponderance of the evidence and then disregarding that amount as mere “conversational cocaine.” U.S.S.G. § 2D1.4 specifies that the amount of the drug being negotiated, even in an uncompleted distribution, must be used to determine the base offense level.
I believe, however, that it was inherently inconsistent for the district court to state, on the one hand, that the hearsay testimony of Camille Kohler established the 2500 kilogram conspiracy by a preponderance of *271the evidence and then to conclude, on the other hand, that the 2500 kilogram deal was “just talk,” and therefore was too tenuous and remote to be taken into account for sentencing purposes. Because of the inequity that results between defendant’s sentence and the sentences of his co-conspirators if the 2500 kilogram amount is included in calculating his offense level, I would remand the case to the district court in order to resolve this inconsistency. The implicit finding of the district court is that talk about the 2500 kilogram deal was real, but the deal was only wishful thinking. I believe the district court should be given an opportunity to make this finding explicit.
Also, the district court made no factual findings under application note 1 of U.S.S.G. § 2D1.4 about whether defendant was capable of producing the 2500 kilogram amount allegedly discussed. If, on remand, the evidence indicates that defendant did not have the capacity to obtain and distribute 2500 kilograms of cocaine by way of air-drop and boat-lift, the district court would be correct in excluding that amount from the sentencing calculation. If defendant did have the capacity, the 2500 kilogram amount should be included. This court in United States v. Walton, 908 F.2d 1289, 1301 (6th Cir.), cert. denied, — U.S. -, 111 S.Ct. 532, 112 L.Ed.2d 542 (1990) stated that “findings of fact important to calculating a defendant’s offense level ... must generally be made by a preponderance of the evidence.” In the present case, the district court has not determined whether it has been established by a preponderance of the evidence that defendant had the capacity to produce 2500 kilograms of cocaine. I would remand for this determination.
ORDER.
Nov. 8, 1991.
Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, and SILER, Circuit Judges.A majority of the Judges of this Court in regular active service have voted for rehearing of this case en banc. Sixth Circuit Rule 14 provides as follows:
The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal.
Accordingly, it is ORDERED that the previous decision and judgment of this court is vacated, the mandate is stayed and this case is restored to the docket as a pending appeal.
The Clerk will direct the parties to file supplemental briefs and will schedule this case for oral argument as soon as practicable.