United States of America, Cross-Appellant v. Alberto Gessa, Cross-Appellee

CONTIE, Senior Circuit Judge.

Defendant-appellant, Alberto Gessa, appeals his conviction and sentence for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The United States cross-appeals from the district court’s alleged misapplication of the United States Sentencing Guidelines (U.S.S.G.).

I. .

In February 1989, defendant, Alberto Gessa, was charged on two counts of a twenty-three count, nineteen-defendant indictment, alleging conspiracy to distribute and distribution of cocaine in the Middle District of Tennessee in or about the spring and summer of 1988. All of defendant’s co-defendants either pled guilty or were tried and convicted in May and June of 1989 under a different prosecutor. Defendant was not tried at the same time because he had become a fugitive and was not apprehended until September 1989.

During defendant’s trial in February 1990, it was established that his brother, Alex Gessa, was the ringleader in a drug trafficking ring that transported cocaine from Florida to Tennessee and that his main couriers included defendant, Sergio Alarcon, Manuel Perez, Louis Garcia, and Juan Perez. The bookkeeper of the drug organization was Camille Kohler, Alex Ges-sa’s former girlfriend, who testified against all of the co-defendants on behalf of the government.

In her debriefing for the first trial, Camille Kohler had told the prosecutor that there existed a scheme to import 2500 kilograms of cocaine from Colombia by air dropping the cocaine in the ocean and picking it up by boat, but the prosecutor in the first trial did not believe there was sufficient evidence of a foreign importation scheme and did not introduce any evidence about it against defendant Gessa’s co-defendants.

The prosecutor in defendant’s trial decided to introduce evidence of a 2500 kilogram importation scheme against defendant because it found two witnesses, Jesus Fleitas and Eli Palmer, who agreed to testify that on two prior occasions, defendant had used a boat to import cocaine into Florida from Green Turtle Cay in the Grand Bahamas.

At defendant’s trial, Camille Kohler testified that a 2500 kilogram importation scheme existed, but three other witnesses, Alex Gessa, Sergio Alarcon and Barbara *1260Alarcon, stated that the alleged scheme was a ruse developed to deceive Camille Kohler about the real reason her boyfriend, Alex Gessa, was in Florida, which was to see another girlfriend, Laurie Becak. Testimony from Kohler and others disclosed that during the time period between the late spring and November of 1988, the organization of Alex Gessa had obtained approximately 2.5 to 3 kilograms of cocaine from defendant for distribution in the Middle District of Tennessee. On February 13, 1990, defendant was convicted as charged on one substantive count and one conspiracy count.

A final sentencing hearing was held on June 11, 1990. The district court stated that it believed a 2500 kilogram foreign importation conspiracy had been established by a preponderance of the evidence. The court credited Camille Kohler’s testimony over that of the other co-conspirators that there existed a definite scheme, which was not a ruse, to obtain 2500 kilograms of cocaine from Colombia by air drop and boat lift. The district court also credited Koh-ler’s testimony that she had wired large amounts of money from Tennessee to Alex Gessa, defendant’s brother, who was in Ft. Lauderdale, and had arranged for the transportation of Alex Gessa’s boat from Nashville to Florida. The district court, on the other hand, indicated that the scheme was too vague and tenuous to use for sentencing purposes. The court also objected to sentences based merely on “conversational cocaine” when the transaction that was the object of the conspiracy had never been completed. The district court rejected the recommendation in defendant’s pre-sen-tence report that his base offense level include the 2500 kilogram amount, and instead sentenced defendant on the basis of 2.5 to 3 kilograms of cocaine.1 The base offense level for 2.5 to 3 kilograms at the time defendant was sentenced was 28. The district court added two points for obstruction of justice, which coupled with a criminal history category of I, resulted in a sentencing range from 97 to 121 months of incarceration. Without explaining its reasons for doing so, the district court departed downward by one month from the applicable Guideline range and sentenced defendant to 96 months in prison to be followed by four years supervised release. The court also imposed a $55,000 fine and a $100 special assessment.

Defendant timely appealed his conviction and sentence. The United States cross-appealed from the district court’s alleged misapplication of the United States Sentencing Guidelines.

This matter is now before this court in an en banc proceeding.

II.

Defendant objected to the admission of the testimony of Camille Kohler and other co-defendants, arguing that their statements about what Alex Gessa had told them were narrative declarations and not in furtherance of the conspiracy.

The district court overruled defendant’s objections pursuant to Fed. R.Evid. 801(d)(2)(E).2 Although it is often stated that we apply an abuse of discretion standard to a district court’s evidentiary rulings,3 we believe this statement sweeps too broadly in regard to Rule 801(d)(2)(E), *1261which requires that specific factual determinations and legal conclusions be made in order for the evidence to be admitted. In order to admit the statement of a co-conspirator under Fed.E.Evid. 801(d)(2)(E), it must first be determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that the co-conspirator’s statements were made “in furtherance of the conspiracy.” United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). These are factual determinations governed by the clearly erroneous standard of review. See Mahoney v. United States, 831 F.2d 641, 645 (6th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 922 (1988).

In the present case, the district court’s determinations that the government had proven the existence of a conspiracy by a preponderance of the evidence, that defendant was a member of the conspiracy, and that the statements, which Alex Gessa had made to others attributing 2.5 to 3 kilos to defendant, were made in “furtherance of the conspiracy” are not clearly erroneous. United States v. Rios, 842 F.2d 868, 874 (6th Cir.1988) (statements of a co-conspirator which identify another co-conspirator as the source of drugs involved in the conspiracy are in furtherance of the conspiracy), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). Based on these factual determinations, the district court concluded that Rule 801(d)(2)(E) permitted the “otherwise hearsay” co-conspirators’ statements to be received as “not hearsay.” This is a question of law, which we review de novo. United States v. Blakeney, 942 F.2d 1001, 1020 (6th Cir.), cert. denied, — U.S.-, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991); United States v. Levy, 904 F.2d 1026, 1029 (6th Cir.1990), cert. denied, — U.S.—, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991). In the present case, we find the district court made the proper legal determination and admitted the co-conspirators’ statements as not hearsay.

Defendant also objected to the admission of the testimony of witness Fleitas, who testified that he Had accompanied defendant to Green Turtle Cay to obtain an unknown quantity of cocaine on two occasions prior to the inception of the 2500 kilogram conspiracy, and to the testimony of witness Palmer, who testified that he had accompanied defendant on one smuggling expedition to Green Turtle Cay to obtain 250 kilograms of cocaine. Defendant argued that the admission of this evidence violated Fed.R.Evid. 404(b) because it was unduly prejudicial evidence of prior bad acts.4

The district court admitted the testimony under the exception to Fed.R.Evid. 404(b), which allows “[ejvidence of other crimes, wrongs, or acts” if it is probative of “intent, preparation, [or] plan.” Although this court has frequently stated that we review 404(b) evidence under an abuse of discretion standard, United States v. Loehr, 966 F.2d 201 (6th Cir.1992); United States v. Wrice, 954 F.2d 406, 411 (6th Cir.), cert. denied, — U.S.-, 112 S.Ct. 2286, 119 L.Ed.2d 211 (1992); United States v. Daniels, 948 F.2d 1033, 1035 (6th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1279, 117 L.Ed.2d 504 (1992); United States v. Paulino, 935 F.2d 739, 754 (6th Cir.), cert. denied, — U.S.-, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991), we believe it is more precise to state the following. First, it must be determined as a matter of preliminary fact whether there is sufficient evidence that the prior act occurred. Second, a legal determination must be made whether the “other act” allegedly committed by the defendant was admissible as evidence of “intent, preparation, [or] plan.”

In the present case, we do not believe that it was clearly erroneous for the district court to determine that the testimo*1262ny of Palmer and Fleitas indicated that the prior acts, the excursions to Green Turtle Cay, had occurred. We believe the district court then made the correct legal determination that this evidence was probative of “intent, preparation, [or] plan,” because the prior excursions were probative of defendant’s ability and opportunity to participate in an importation scheme. See United States v. Hitow, 889 F.2d at 1579 (testimony about the defendant’s prior drug deals was permissible to establish the background and development of the conspiracy).

Finally, in ruling on the admission of 404(b) evidence, the district court must determine whether the “other acts” evidence is more unfairly prejudicial than probative, which is governed by an abuse of discretion standard. United States v. Blankenship, 954 F.2d 1224, 1229 (6th Cir. 1992). In the present case, we find an abuse of discretion did not occur and affirm the district court’s admission of the prior acts evidence.

Upon review of the record, briefs, arguments of the parties, and existing precedent, this court concludes that defendant’s remaining assignments of error are equally without merit.

III.

We will now address the issues the United States raises on cross-appeal. The United States argues that the district court erred by failing to include the 2500 kilograms of cocaine, which was the object of the alleged foreign importation conspiracy, in calculating defendant’s base offense level. The government contends that once the district court stated that the plan to smuggle 2500 kilograms of cocaine from Colombia by air drop and boat had been established by a preponderance of the evidence, the district court was required to include that amount in defendant’s base offense level pursuant to the dictates of U.S.S.G. § 2D1.4. Guideline § 2D1.4 states that if a defendant is convicted of participating in an incomplete conspiracy, the “offense level shall be the same as if the object of the conspiracy ... had been completed” (emphasis added). The United States contends that because the language of Guideline § 2D1.4 is mandatory, not precatory, the entire quantity of cocaine that defendant unsuccessfully conspired to possess must be used to establish his base offense level and the 2500 kilogram amount was erroneously excluded.

Generally, a district court must apply the Guidelines in effect “at the time of sentencing” under 18 U.S.C. § 3553(a)(4). United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir.1992). Defendant was sentenced on June 11, 1990. The relevant Guideline in effect on this date (Guideline § 2D1.4, Attempts and Conspiracies) states:

(a) Base Offense Level: If a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.
U.S.S.G. § 2D1.4 (Nov. 1, 1989). However, Application Note One to Guideline § 2D1.4 provides an exception to the general rule. United States v. Caba, 955 F.2d 182 (2nd Cir.1992). Application Note One first states:
If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.

On the other hand, the Note further provides in relevant part:

However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.

*1263U.S.S.G. § 2D1.4, Application Note One (Nov. 1, 1989).

Contrary to the government’s contention, a sentencing court is not automatically required to include the weight of an uncompleted transaction in the base offense level, but under Application Note One is required to make findings with respect to the defendant’s intent and ability to produce the negotiated amount. United States v. Jacobo, 934 F.2d 411, 416 (2nd Cir.1991) (“It is clear ... that § 2D1.4 contemplates that the court itself is to make findings as to whether the defendant intended to produce the negotiated amount and was reasonably capable of prodúcing that amount.”) For offenses involving negotiation to traffic in a controlled substance, Application Note One requires the sentencing court to exclude from Guideline calculation the amount of drugs that it finds the defendant did not intend to produce and was not reasonably capable of producing.5

In the present case, although the district court did not make specific findings pursuant to Application Note One of § 2D1.4, it made numerous statements about why the 2500 kilogram amount was being excluded. On several occasions, the court indicated that although it believed there had been conversations and some planning for a 2500 kilogram importation scheme, the scheme was too tenuous and remote to, be taken into account for sentencing purposes. During the sentencing hearing, the probation officer who had prepared the pre-sentence report was asked about defendant’s alleged participation in the 2500 kilogram scheme. “Do you have any reference in any of those investigative notes or from any source of anything Alberto Gessa did or said to connect him with this twenty-five hundred kilo scheme.” Trial Transcript, Vol. V, p. 116. The probation officer answered, “No sir.” Id. at 117. He was then asked if there was anything from the DEA investigative file or debriefing or any testimony of any witness other than Camille Kohler’s statement that Alex Gessa had told her that such a scheme existed that Alberto Gessa did anything in furtherance of the alleged 2500 kilogram scheme. The probation officer indicated that the hearsay statement of Camille Kohler was his only source of information. Id. The probation officer was then asked whether the investigation was able to glean any independent knowledge that defendant even knew that allegedly there was a 2500 kilo scheme involving him. Id. at 122. He responded that it was not known whether defendant even knew what his brother was saying about him. The district court then stated:

I’ve got some real reservations about punishing people for these amounts of contraband that are only the subject of conversation. They are like appraitions [sic], they never appear_ The question is, what is [defendant] to be chargeable with as far as evidentiary basis to tie him to this twenty-five hundred kilogram importation business? ... what is there solid in this record, [for] an amount he’s really chargeable with.

Appendix, p. 358-61. The court indicated that although it believed defendant had agreed to participate in the scheme based on Camille Kohler’s statement, it was reluctant to include the 2500 kilogram amount on the basis of conversations, “until the conversations get a lot closer,” Appendix, p. 362, or until the conversations had ripened into “something more solid.” Appendix, p. 369.

*1264At other times, the court indicated that it was excluding the 2500 kilogram amount because there had been no completed transaction and it objected to sentencing a defendant on the basis of “conversational cocaine.” The court indicated that in another case it had excluded a kilogram for the following reason:

[Although] there was plenty of tape conversation about a kilogram, [there was] ... never any [cocaine] actually seized, no firm transaction.

Appendix, p. 359. The court also stated that it had “real problems about punishing people for conversations about drugs,” Appendix, pp. 360, 375, and indicated it was excluding the 2500 kilogram amount because “it is essentially cocaine in its conversation state.” Appendix, p. 364.

The court’s concluding statement was as follows:

In this case, the Court finds that the defendant has been convicted on Counts One and Eleven. Count One is the drug conspiracy count under 21 USC 846, and Count Eleven is the substantive count under 21 USC 841(B)(1)(A). As the Court has stated earlier in these proceedings, it is satisfied that the conspiracy count was properly submitted to the jury, including the proof related to this twenty-five hundred kilogram importation scheme. And it has previously stated its findings that the testimony of Camille Kohler is credited with regard to the involvement of Alex Gessa, the head of this drug ring, as well as the defendant, Mr. Alberto Gessa, who is Mr. Alex Gessa’s brother. The proof also establishes that there was at least two and half to three, or slightly more, kilograms of cocaine obtained directly from the defendant, Alberto Ges-sa, and brought by couriers to the Middle District of Tennessee from southern Florida.
The Court has made it abundantly clear in the comments during the course of passing on objections of the defendant to various portions of the pre-sentence report that, while it credits the testimony of Camille Kohler with regard to this portion of this conspiracy that relates to the importation scheme of this twenty-five hundred kilograms, and the Court is genuinely convinced and satisfied that there was such a scheme and subject of the conspiracy; and that she wired those funds to southern Florida; and a boat owned by Mr. Alexander Gessa was moved from the Middle District of Tennessee to the Southern District of Florida; that, nevertheless, it is what the Court has at length stated to be conversational cocaine, very much like some other conspiracies where the proof of what is actually purchased and the deals that have gone down involved relatively minute amounts of cocaine, these quarter-ounce sales, half-ounce sales, that we frequently see in these state-made cases that are brought over here to the United States Attorney’s Office, or at least have been in the past.
After a number of those deals they start to have some conversation about maybe a kilogram, two kilogram quantities. And it’s all sort of vague, no money ever passes hands, no precise details as to when the deal would be put together and consummated. The case is tried on 846 conspiracy and substantive counts related to the quarter-ounce, half-ounce, one ounce transactions. Then at sentencing, we’re asked to impose sentence based on the kilogram, two kilograms that was the subject of conversation of the tape. That’s what I mean by conversational cocaine.
Now, it’s one thing to have the proof for purposes of conspiracy and to obtain conviction, submit it to the jury, and even another thing for the Court to credit it, and I have credited it. As I said, I believe it by a preponderance of the evidence here at the sentencing proceedings. But I simply do not believe that that alone, with nothing more, is sufficient to impose what would be in this case a draconian sentence.
What we have here is proof of some two and a half to three or three and a half kilograms of cocaine brought up here from South Florida to the Middle District of Tennessee that this man has been *1265directly, concretely connected with. And I simply find that the rest of this is what I have repeatedly called this afternoon as conversational cocaine.
It’s one thing to put it in the record, place his role in bringing out whatever the value the jury attaches to it, resulting in conviction on a Section 846 drug conspiracy count. And then it’s—as a matter of fact, while I thought a large part of all this proceeding this afternoon and on two prior occasions with these objections was very much like we are seeing more, more and more in all of these sentencing proceedings, sort of a mini-trial, we finally at the last got down to the crux of the case, and that is what can this man actually be chargeable with for purposes of the imposition of sentence.
And I find that it’s two and a half, three, three and a half kilograms of cocaine which, under the computations of the guidelines in effect at the time, results in an offense level of twenty-eight, and allowing for two level increase for obstruction of justice about which there is no controversy or objection to that portion, Paragraph 22 of the pre-sentence report, withdrawn, results in a total offense level of thirty with a Criminal History Computation of Category I, resulting in a guideline range of ninety-seven to a hundred and twenty months, and a fine range of $15,000 to $150,000 and a period of supervised release of at least five years on Count One and at least four years on Count Eleven.

Appendix, pp. 390-92, 395-96.

We find the district court’s statements about the 2500 kilogram amount to be confusing and in need of further clarification. Was the court excluding the 2500 kilogram amount because it believed there was insufficient evidence besides conversations to link defendant to the scheme or to indicate that he was reasonably capable of producing that specific quantity of cocaine? Or was the court excluding the 2500 kilogram amount merely because the deal had never come to fruition and the court objected to the inclusion of “conversational cocaine” as long as the transaction was incomplete? We believe it would be improper for this court to give weight to some of the district court’s statements and ignore others in an attempt to make a determination based on the record as it now stands. Instead, we believe the case must be remanded to the district court to allow it to resolve the inconsistencies in its statements.

According to the dictates of Guideline § 2D1.4, the district court must include the “conversational cocaine” involved in the 2500 kilogram conspiracy even though the object of that conspiracy was uncompleted, if it concludes that defendant had the intention to produce or was reasonably capable of producing 2500 kilograms by way of air drop and boat lift.6 On the other hand, under Application Note One, the district court is required to exclude the 2500 kilogram amount if it finds that defendant did not have the intention and was not reasonably capable of producing that specific amount. Accordingly, we vacate the sentence and remand to the district court to make specific findings in this regard pursuant to Application Note One of Guideline § 2D1.4.7 United States v. *1266Brown, 946 F.2d 58, 60 (8th Cir.1991) (sentence reversed and case remanded because district court failed to make findings with respect to the defendant’s intent and ability to produce the negotiated quantity); United States v. Richardson, 989 F.2d 135, 143 (4th Cir.) (nothing in record to indicate how defendant could have raised enough money to purchase any cocaine; without the money, the defendant was not “reasonably capable of producing any cocaine”), cert. denied, — U.S. -, 112 S.Ct. 599, 116 L.Ed.2d 623 (1991); United States v. Ruiz, 932 F.2d 1174, 1184 (7th Cir.) (not a case in. which the defendant had “actually arranged the details of a drug sale (e.g., price, quantity, location)” for ten kilograms so the comment of one conspirator about ten kilograms was “not sufficient to establish that the conspiracy had as its goal the consummation of a deal for upwards of ten kilograms”), cert. denied, — U.S. -, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991); United States v. Monroe, 943 F.2d 1007, 1019 (9th Cir.1991) (since marijuana was “in place” and had been funded, the district court properly determined the conspirators were “reasonably capable” of delivering six tons of marijuana); United States v. Foley, *1267906 F.2d 1261, 1264-65 (8th Cir.1990) (a single conversation about two ounces of cocaine does not support the charge that a negotiation for two ounces had occurred that could be used to establish the defendant’s base offense level under Guideline § 2D1.4); United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir.1990) (sufficient support for district court’s finding that appellant was capable of delivering 60 kilograms of marijuana because appellant was recorded telling the government informant that he could produce “100 a week” and co-conspirators corroborated this statement); United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990) (because “the district court made specific findings, articulating its reasons for believing that [defendant] both intended, and had the capacity, to deliver the kilogram,” the inclusion of the kilogram that never surfaced in a completed transaction was proper).

IV.

The United States also argues on cross-appeal that the district court erroneously made a downward departure from the applicable Guideline range in order to equalize defendant’s sentence with that of his co-conspirators. Because evidence of the 2500 kilogram importation scheme had not been brought against defendant’s co-conspirators, the co-conspirators, who, like defendant, had acted as major couriers for ringleader Alex Gessa, had received sentences ranging from 41 to 97 months. The United States contends that rather than impose a “draconean” sentence based on the 2500 kilogram amount on defendant in comparison with the sentences of his co-conspirators, the district court departed downward from the applicable Guideline range of 235-293 months in order to equalize his sentence with that of his co-conspirators.

We disagree with the United States that in its present posture, this case involves a downward departure from a sentencing range of 235-293 months. Although the district court indicated that if the 2500 kilogram amount were included in defendant’s base offense level, it would create an inequitable disparity in sentences, the court did not include that amount and then depart downward. Instead, the district court decided not to include the 2500 kilogram amount in calculating defendant’s base offense level. The district court specifically stated, “[W]e finally ... [have] got down to the crux of the case, and that is what can this man actually be chargeable with for purposes of the imposition of sentence. And I find that it’s two and a half, three, three and a half kilograms of cocaine, which under the computations of the guidelines in effect at the time, results in an offense level of twenty-eight.” Appendix, p. 395.

Because the district court did not include the 2500 kilogram amount in calculating defendant’s base offense level, it was not necessary to depart downward from 235 to 293 months in order to equalize his sentence with that of his co-conspirators. Therefore, at this time, we decline to review whether a downward departure for such a reason would be appropriate.8 If, on remand, the district court believes that it is required to include the 2500 kilogram amount in calculating defendant’s base offense level, it may determine whether a downward departure to equalize sentences is permissible in light of this court’s prior statements in United States v. Nelson, 918 F.2d 1268 (6th Cir.1990) and United States v. Parker, 912 F.2d 156 (6th Cir.1990).9

*1268V.

To conclude, the conviction of defendant for violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 is hereby AFFIRMED. Defendant’s sentence is VACATED and this case is REMANDED to the district court for proceedings consistent with this opinion.

.Under the Guidelines, the base offense level for drug offenses is determined by the type and quantity of drugs involved in the offense. U.S.S.G. § 2D1.1(a)(3). At the time defendant was sentenced, the highest base offense level applicable to his conduct, if the 2500 kilogram amount were included, was set at 36 for quantities of cocaine in excess of 30 kilograms. U.S.S.G. § 2D1.1(a)(3) (October 1987). The pre-sentence report calculated a base offense level of 36, added two points for obstruction of justice, which coupled with a criminal history category of I, yielded a sentencing range from 235 to 293 months of incarceration.

. Fed.R.Evid. 801(d)(2)(E) states:

(d) Statements which are not hearsay. A statement is not hearsay if—
(2) Admission by party-opponent. The statement is offered against a party and is (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

. United States v. Blakeney, 942 F.2d 1001, 1020 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir.1989).

. Fed.R.Evid. 404(b) states in relevant part:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

. Application Note One of § 2D 1.4 became effective Nov. 1, 1989. U.S.S.G., App. C, p. C81-82 (Nov. 1, 1989). Under the former application note, unlike the current one, the sentencing court was not required to exclude such quantities of drugs in calculating the base offense level. United States v. Alston, 895 F.2d 1362, 1370 n. 8 (11th Cir.1990). Previously, the application note stated, "Where the defendant was not reasonably capable of producing the negotiated amount, the court may depart and impose a sentence lower than the sentence that would otherwise result." U.S.S.G. § 2D1.4 (January 15, 1988) (emphasis added). The Federal Register (54 Fed.Reg. 21, 362 (May 17, 1989)) explains that as amended, Application Note One of § 2D 1.4 mandates exclusion of amounts which a defendant was not capable of producing because "puffing” during the course of negotiations could result in inflated offense levels. United States v. Vazzano, 906 F.2d 879, 884 (2nd Cir.1990).

. The court must also take into consideration the foreseeability of an importation scheme that would involve a 2500 kilogram amount. Application Note One of Guideline § 1B1.3, Relevant Conduct, states in relevant part:

In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant “would otherwise be accountable” also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.

. The dissenting opinions urge that a remand is not necessary as defendant obviously had the intent and capacity to participate in a 2500 kilogram importation conspiracy. We believe that some of the factual data in Judge Krupan-sky’s dissent is not supported by the record. Witnesses Fleitas and Palmer did not testify as stated in the dissent that they assisted defendant in the pick up of cocaine from the open seas or that defendant financed the pick up of bulk cargo from the ocean. They also said nothing about Colombian cartel cocaine connections. Fleitas testified that he twice accompanied defendant to Green Turtle Cay to pick up what he *1266estimated to be about 300 kilograms of cocaine for which he was paid $32,000. Appendix, pp. 257-61. Palmer testified that he was along on one of these expeditions, that he believed 250 kilos was imported, and that he was paid $10,-000 for his assistance. Appendix, pp. 273-76. Jesus Fleitas testified that the procedure followed on both trips was that the boat left a dock in South Florida and went to Green Turtle Cay off of the Grand Bahama Islands. In a secluded bay at night, the cocaine was off-loaded from a smaller vessel onto their vessel, which then returned to Florida. Trial Transcript, Vol. II, pp. 284-89. Both Fleitas and Palmer testified that they did not know how this cocaine reached Green Turtle Cay and they did not know who financed the expeditions. Appendix, pp. 258, 275. Contrary to the dissent’s assertion, Fleitas and Palmer stated that they knew nothing about a conspiracy between defendant and Alex Gessa. Appendix, pp. 255, 273. Thus, the record indicates that defendant allegedly previously imported 300 plus kilograms of cocaine by boat from Green Turtle Cay. There is no evidence whether defendant was working for someone else on these alleged trips to Green Turtle Cay or organized the expeditions himself.

A statement in the presentence report alleging that defendant had engaged at sea with Jay Fleitas with a Colombian cartel is uncorroborated and defendant objected to its inclusion in the presentence report. The district court sustained the objection. Since at trial neither Flei-tas nor any other witness testified about previously engaging with a Colombian cartel at sea, there is no support in the record to substantiate this statement, and it must be disregarded unless the government can establish its truth by a preponderance of the evidence. This court has held that a preponderance of the evidence standard applies to contested facts in sentencing proceedings. United States v. Mandell, 905 F.2d 970, 974 (6th Cir.1990). See also United States v. Stanberry, 963 F.2d 1323, 1326 (10th Cir.1992) (when factors important to the sentencing determinations are reasonably in dispute, the sentencing court must resolve these issues in accordance with the preponderance of the evidence standard); United States v. Granados, 962 F.2d 767, 771 (8th Cir.1992) (presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of ' material fact).

Also Sergio Alarcon’s testimony, which the dissent quotes only in part, did not corroborate Kohler’s testimony of a conspiracy to smuggle 2500 kilograms of cocaine. He testified that he was told by Alex Gessa to call Kohler and pretend that he was in Florida to participate in practice boat drills that had to be cancelled due to bad weather when in truth he was not in Florida and no such drills had been attempted. Appendix, pp. 173-75. Alarcon’s testimony thus supports the defendant’s contention that the alleged 2500 kilogram conspiracy was a ruse to deceive Kohler and enable Alex Gessa to party with Laurie Becak in Florida. Barbara Alarcon testified that although she’d been told that there was a 2500 kilogram conspiracy, she later was told that all the money Camille Kohler had wired to Alex Gessa in Florida was not used to set up the 2500 kilogram deal, but was used by him to party with Laurié Becak. Appendix, p. 208. Contrary to the dissent’s assertion, there are no statements of Howard Becak in the record about a 2500 kilogram conspiracy or ■ about prior trips to Green Turtle Cay.

The only person who stated that she still believed in the actual existence of a 2500 kilogram conspiracy to obtain cocaine by air drop and boat lift which involved defendant was Camille Kohler and her knowledge of defendant's alleged participation was based on hearsay. We believe that based on these facts, a question remains whether it has been established by a preponderance of the evidence that defendant had the intention and capacity to participate in a 2500 kilogram conspiracy to import cocaine by air drop and boat lift or whether the scheme or defendant's alleged participation in the scheme was too remote and tenuous to be used for sentencing purposes. The district court raised this issue at the sentencing hearing and we believe the court should be given an opportunity to resolve it on remand.

. The district court did make a one month downward departure from the Guideline sentencing range of 97 to 121 months based on 2.5 to 3 kilograms of cocaine as the drug amount. However, this departure is not material to this issue. It should be noted that on remand if the district court wishes to depart from the applicable Guideline range, the court must state the reasons for this departure pursuant to 18 U.S.C. § 3553(c). United States v. Kennedy, 893 F.2d 825, 829 (6th Cir.1990).

. The dissents suggest that it is a waste of judicial resources for this court not to decide this issue. However, any statement made by this panel in this regard would be an advisory opinion and mere dicta. Because the district court did not make a downward departure to equalize sentences, this issue is not yet ripe for review.

Although we decline to address this issue, we believe it must be pointed out that there is no support in the record that defendant was the more culpable participant in the alleged 2500 *1268kilogram conspiracy as Judge Krupansky’s dissent alleges. Camille Kohler testified that defendant’s brother, Alex Gessa, was the one who had experience in bringing in drugs from the ocean. Also the record does not support the dissent’s statement that defendant was the "ever present volume pipe-line of cocaine that supplied well-organized distributors such as his brother." This statement is contrary to what the United States argued in regard to defendant. .In its closing argument, the prosecution stated that defendant was not one of the primary suppliers in his brother's distribution ring, and that the United States was "not arguing for an instant that he was the lead, primary supplier of cocaine in this case.” Appendix, p. 319. The record indicates, instead, that defendant supplied 2.5 to 3 kilograms of cocaine to his brother, Alex, who was the ringleader of a cocaine distribution ring between Florida and Tennessee, which operated 30 or more mules, one of whom was defendant. The district court refused to allow testimony about defendant's prior alleged cocaine-trafficking activities into the trial except as they related to his ability to participate in an importation conspiracy.