concurring:
I join parts I, II, IV and V of the court’s opinion. I further agree with my colleagues that following the 1993 amendment, forms of cocaine base other than crack should be treated as cocaine for purposes of sentencing under the Guidelines.
I disagree only with that portion of part III holding that the district court was foreclosed from relying upon the defendant’s apparent admission during his plea colloquy that he sold crack cocaine. The majority concludes that because of the severity of the 100:1 sentencing ratio, a district court cannot rely on an apparent admission of the defendant in a plea colloquy unless a court of appeals, on review, believes that it “unmistakably amount[s] to a knowing and volun*859tary admission.” In my view, the issue of whether James admitted to selling crack is an issue of fact. Like all other issues of fact material to a sentencing decision, this is an issue for the district court subject only to clearly erroneous review by this court. Moreover, like all other such fact issues, it is to be decided by a preponderance of the evidence standard, not a higher one of unmistakability.
At the plea colloquy the prosecutor referred to the substance in question three times as “crack cocaine.” The court then asked, “Mr. James, you heard what [the prosecutor] just said about what you did. Do you agree with what he said.” James responded, “yes.” The district court was in a far better position than we to determine as a matter of fact what James intended to affirm by this statement. If the court had made an express finding that James intended to affirm that he sold crack and that, based on the preponderance of the evidence, crack was sold, I would be unable to say that the court’s conclusions were clearly erroneous.
It appears to me from the transcript of the sentencing hearing that the district judge concluded that James intended to admit selling crack. It also appears that he relied upon this finding when he determined by a preponderance of the evidence that the substance was crack. Were I sure that this is what transpired in the district court, I would affirm. The transcript is less than clear, however, and I would remand for clarification from the district court. On remand, the district court, if it so chose, could affirm or disaffirm a factual finding that James admitted selling crack and, if it affirmed, could rely upon that finding in resentencing. In the alternative, the district court, in its discretion, could elect to hear further evidence regarding the composition of the substance sold. While the government is not to be routinely granted two opportunities to carry its burden at a sentencing hearing, a reopening of the record could be justifiable here because the government, at the original sentencing hearing, was clearly operating under the assumption, arguably reasonable, that James had conceded that the relevant substance was crack cocaine. See United States v. Dickler, 64 F.3d 818, 832 (3d Cir.1995).