concurring in part and dissenting in part.
I generally concur in Judge Krupansky’s opinion but write separately to focus more particularly on what I see as my disagreement with the majority.
I start with the guideline itself. It reads:
(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.
In this case, the trial court specifically found the object of the conspiracy to encompass the 2,500 kilo importation scheme. (“I also credited the proof of Camille Koh-ler on this importation business and the scheme of the twenty five hundred kilos importation.”) A straightforward application of the relevant guideline mandates an offense level based upon 2,500 kilograms of cocaine.
Both Judge Contie and Judge Krupansky discuss the need to make findings with respect to a defendant’s intent and ability to produce a specified amount, 2,500 kilo*1286grams, relying on Application Note 1 [U.S.S.G. § 2D1.4]. The note provides:
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. 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. If the defendant is convicted of conspiracy, see Application Note 1 to § 1B1.3 (Relevant Conduct).
It seems clear to me that the “negotiated amount” language of the pertinent sentence refers back to the previous sentence’s “uncompleted distribution” of an amount “under negotiation.” Both sentences involve determining the amount for which a defendant is liable when the negotiations are for more than the actual transactions and attempts. The language is aimed at establishing the liability for an attempted sale. I do not think those two sentences are the proper authority for determining or limiting the scope of a conspiracy. Indeed the last sentence of the section specifically says “[i]f the defendant is convicted of conspiracy, see Application Note 1 to § 1B1.3 (Relevant Conduct).” There Application Note 1 provides:
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 be otherwise accountable” also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant. Because a count may be broadly worded and include the conduct of many participants over a substantial period of time, the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant. Where it is established that the conduct was neither within the scope of the defendant’s agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant’s offense level under this guideline. (Emphasis added)
It is that note which controls in the case of a conspiracy and limits the scope of a conspirator’s liability.
My construction of the applicable guidelines and notes is supported by the history of the relevant sections. Prior to the 1989 amendments, Application Note 1 to § 2D1.4 contained the following sentence regarding the proper scope of the object of a conspiracy: “the sentence should be imposed only on the basis of the defendant’s conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to defendant or was reasonably foreseeable.” That language was replaced with the simple “see Application Note 1 to § 1B1.3 (Relevant Code)” reference to the parallel language in Application Note 1 to § 1B1.3 U.S.S.G.App. C, # 137. It is clear to me that under section 2D1.4 and its referenced commentary, a defendant is liable for the full scope of the object of the conspiracy, unless it is established that the amount or conduct in question was beyond the scope of defendant’s agreement and was not foreseeable by the defendant. The testimony explicitly credited by the trial court stated that Alberto Gessa and his brother planned to import 2,500 kilos of cocaine, with Alberto handling the drop and Alex the ferrying. Therefore, Alberto Gessa’s conspiracy agreement involved 2,500 kilos of cocaine, foreseeability is not an issue with respect to his own agreement, and his offense level “shall be the same as if the object of the conspiracy ... had been completed.” U.S.S.G. § 2D1.4.
*1287The language relied upon by both Judge Contie and Judge Krupansky from Application Note 1 to § 2D1.4 applies, in my opinion, only to uncompleted, attempted sales. It is intended to limit the offense level where a defendant was “puffing,” i.e., negotiating upon an amount beyond his intent and capacity to actually sell. My reading of this section is also supported' by the commentary to the amendments. See U.S.S.G.App. C, # 136 (“[The previous] provision may result in inflated offense levels in uncompleted offenses where a defendant is merely ‘puffing’.... The purpose of [the] amendment is to provide a more direct procedure for calculating the offense level where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount.”) The intent and capacity analysis has. no proper application to the scope of the object of a conspiracy.
I see no reason to remand this case to the District Court, since I believe the record before us is clear. The court found the defendant had entered into a conspiracy, the object of which was 2,500 kilograms. After recognizing that its findings regarding the conspiracy required a sentence range at level 88 of 235 to 293 months,1 the District Court departed from that guideline for two reasons. First, it held that the sentence should be based on the amount of the drugs actually distributed by the conspiracy, rather than the amount it conspired to import. It did so because utilizing what the conspiracy planned to do in the future but had not achieved resulted in what the court considered to be a draconian sentence. It also declined to apply the calculated guideline and thus departed because use of the guideline mandated sentence would result in the “grossest sort of disparity and distortion with regard to the co-defendants” who were all members of the same conspiracy. The judge found that defendant’s role was similar to that of co-defendant Manolo Perez, who received ninety-seven months, and imposed an identical sentence. Although the court did not use the term “departure,” that is what it did — it departed from the guideline range it recognized to be required by its factual findings. Neither of its grounds are a valid basis for departure.
The majority suggests that the judge’s findings are ambiguous arid that by “conversational” cocaine the court may have meant that there was in fact no conspiracy to import 2,500 kilograms of cocaine. I find nothing in the court’s remarks to suggest that conclusion. The court repeatedly stated that it credited the witnesses who established a conspiracy to import a substantial amount of cocaine. It found that the conspirators had taken overt acts to carry out the conspiracy. ■ The amount that would be imported was “conversational” only because the importation and distribution had not taken place. It was nonetheless what they intended to do. Under section 2D1.4, that dictates the appropriate offense level. The only legitimate reduction from the 2,500 kilograms finding under the guidelines would relate to whether the acts of others were foreseeable, or not within, the scope of the agreement.2 The expressly credited testimony precludes this consideration.
I agree with Judge Krupansky that the court could not, under the circumstances here, depart downward to avoid disparity *1288with the co-conspirators. The evidence in the earlier trial and at sentencing of the coconspirators did not establish as an objective of the conspiracy the importation of 2,500 kilos from Columbia. The United States Attorney did not present that evidence to the first jury because he principally had only the testimony of witness Koh-ler. The corroborating testimony of witnesses Fleitas, Palmer and Stewart became available only after the first trial. When that evidence was developed, it should have been, and was, used against the remaining participant in the conspiracy. The fact that the government’s case was more substantial against this defendant was solely a function of his having been a fugitive at the time of the first trial. That is not a valid basis for misapplying the guidelines with respect to the proper amount of cocaine to be considered at sentencing.
I would remand the case to the District Court for resentencing under the appropriate level 38 range of 235 to 293 months.
. The court stated: "If the court were to accept that testimony [the testimony regarding the conspiracy to import 2,500 kilos] as it has accepted it, but if the Court were to impose sentence on the basis of the proof, it would result in a total adjusted offense level, allowing a two level upward adjustment for obstruction of justice, of thirty-eight, resulting in a guideline range of two hundred and thirty-five to two hundred and ninety-three months.” (Emphasis added).
. If I am incorrect in my reading of the guidelines, I would agree with Judge Krupansky that the judge could have adjusted the guideline level if the conspirators did not have the capacity to import the amount they conspired to. Application note 1, U.S.S.G. § 2D 1.4. The evidence that the court expressly stated it credited established that the conspiracy, indeed, through the defendant here, did have that capacity. There is no evidence to the contrary. At a minimum, it had the capacity to import over 50 kilos, which would place defendant in the same guideline range. Therefore, a downward adjustment would be clear error.