joined by MeMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, dissenting.-
I dissent from the en banc court’s affir-mance of Montanye’s attempt conviction and his sentence predicated on the foreseeability of his co-conspirator’s production of 37.5 kilograms of methamphetamine.
I.
I shall not discuss extensively my disagreement with the en banc court’s affir-mance of the conviction for attempt to manufacture methamphetamine. First, the conviction was affirmed by an evenly divided vote which carries no precedential value. Second, the affirmance of the attempt conviction does not affect Montanye’s sentence, which is concurrent with the conspiracy sentence. Nevertheless, I adhere to my position that Mon-tanye’s mere delivery of glassware is not a substantial step toward the manufacture of methamphetamine.1
II.
The panel opinion vacated by the en banc court termed plain error the failure of the district court to make any determination of the amount of methamphetamine that would be foreseeable to Montanye by his delivery of the glassware. On the foreseeability issue the panel said:
Montanye agreed to deliver glassware to Bruton from Utah. Evidence indicates that Montanye knew with certainty that he was aiding an illegal conspiracy. However, Montanye did not know how much or how little methamphetamine his co-conspirators would produce. Montanye never participated in the process of manufacturing or distributing the methamphetamine. The district court possessed insufficient evidence to find Montanye responsible for all of the methamphetamine produced.
United States v. Montanye, 962 F.2d 1332, 1347 (8th Cir.), reh’g granted and op. vacated, 962 F.2d 1349, cert. denied, — U.S. -,-, 113 S.Ct. 418, 496, 121 L.Ed.2d 341, 434 (1992). Although the foreseeability issue was not raised on appeal before the panel, it has now been briefed and argued before the en banc court.
Montanye’s counsel, however, did not specifically raise the foreseeability issue in the district court. The majority has determined no plain error exists and refuses review of that issue. It seems to me that gross injustice exists and that we should now reach that issue and remand the case to the district court to consider modifying the sentence because the record before us does not show that Montanye knew the quantity of methamphetamine to be produced by his co-conspirators. As the panel opinion said:
We hold that [Montanye’s] thirty-year sentence for a simple delivery of glassware constitutes a gross miscarriage of justice. We remand Montanye’s case for resentenc-ing and suggest that resentencing be im*196posed consistent with the rationale of the Seventh Circuit in Edwards [United States v. Edwards, 945 F.2d 1387 (7th Cir.1991) ], and of this court in North [United States v. North, 900 F.2d 131 (8th Cir.1990) ].
Montanye, 962 F.2d at 1347.
The gross unfairness is apparent. As Montanye said during the sentencing hearing:
I don’t think the act of transporting glassware is worthy of 30 plus years in prison, personally, based on the supposition on the account of what could or could not be made in the laboratory concerning the methamphetamine.
Sent. Tr. at 9-10.
This court should consider this issue now rather than later. Certainly, the opinions of this court indicate that a post-conviction remedy to review the sentence is appropriate, challenging the competency of Montanye’s counsel in failing to raise before the trial court the obvious issue of the foreseeability of his co-conspirators’ conduct.
. The Government's oral argument conceded some weakness in its case on attempt:
[One problem with this case] was this attempt issue, because even though I do believe that it is technically correct in that it is a step that is more than one in preparation, it’s one of those stereotypical hard cases that might tend to make bad law. I respectfully suggest that the panel opinion below did that by generalizing from several specific factual scenarios and trying to create a bright line....
Had it not been for that language in the opinion, we probably would not have sought en banc review on that issue. I didn't really see the utility of that charge. I thought it was an overcharge, to tell you the truth, in an attempt to simply have some substantive offense for Mr. Montanye to support the conspiracy. But I do agree with Judge Arnold that that act far and away supported the conspiracy more than it supported an attempt charge.
Abstract from tape recording of October 15, 1992 en banc oral argument.