A large number of issues in this and related cases have been disposed of by memorandum disposition and by a separate opinion filed herewith. The present opinion is addressed to a single point, raised only by Jordan Quintal and Robert M. Petty. It is the quantity of drugs to be attributed to a conspirator in a drug conspiracy.

We remand to the district court for re-sentencing of these defendants.

FACTS

The evidence established only that Quintal was involved in a single sale of three kilograms of cocaine to Donald Kessack. The sale took place in July 1989, three months before the five-year conspiracy was broken up by the government. In contrast, the evidence indicated that Robert Petty was a founding member of the conspiracy; that he bought and resold to Kessack large amounts of cocaine over the five year period; that he organized the shipment of the drugs; that he supervised couriers; that he handled their payments; and that he took large profits.

PROCEEDINGS

On July 27, 1990, the district court sentenced Quintal on the basis that, as to him, the conspiracy involved the distribution of 15 to 49 kilograms of cocaine. Petty was sentenced on the total quantity of drugs distributed by the conspiracy over five years.

Quintal and Petty challenge the quantities of drugs on which their sentences are based. Quintal contends that he should have only been sentenced on the basis of drugs distributed in the last three months of the conspiracy. Petty contends that he should not have been sentenced on the basis of kilograms of cocaine that Kessack obtained from John Brownwood, because Brownwood was an independent supplier of Kessack and a direct competitor of Petty.

ANALYSIS

Our starting point in the Sentencing Guidelines must be Part D, “Offenses Involving Drugs.” Under this heading, § 2D 1.1, “Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses),” provides a scale of penalties in terms of the particular drug distributed and the quantity distributed. Section 2D1.4, “Attempts and Conspiracies,” deals with the defendant who is convicted of conspiracy to distribute drugs. Commentary to this section provides:

Application Notes:

U.S.S.G. § 2D1.4 Commentary, Application Note 1.

The cross-reference to Application Note 1 of Section 1B1.3 means that a second guideline must be taken into account. Part B provides “General Application Principles”. § 1B1.3 deals with “Relevant Conduct (Factors that Determine the Guideline Range).” This section specifies:

Commentary on this section states:

U.S.S.G. § IB.1.3, Commentary, Application Note 1.

This application note is then illustrated by the following pertinent Illustration e:

U.S.S.G. § 1B1.3, Commentary, Application Note 1, Illustration e.

Interpreting the Guidelines, we read the Commentary to § 2D1.4 as mandating that in the present case we turn to § 1B1.3: “If the defendant is convicted of conspiracy, see Application Note 1 to § 1B1.3 (Relevant Conduct).”

We then find that § 1B1.3 is explicit in making a distinction among members of a conspiracy in terms of “the scope” of the activity. This approach distinguishes the Guidelines from the general harsh law of conspiracy that a conspirator is “ ‘bound by all that has gone on before in the conspiracy.’ ” United States v. DiCesare, 765 F.2d 890, 900 (9th Cir.1985) (quoting United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir.1982)), amended on other grounds 777 F.2d 543 (9th Cir.1985). Under the Guidelines each conspirator, for sentencing purposes, is to be judged not on the distribution made by the entire conspiracy but on the basis of the quantity of drugs which he reasonably foresaw or which fell within “the scope” of his particular agreement with the conspirators.

It has proved a bit of a puzzle for the courts to interpret the rule set by the commentaries. The Seventh Circuit started to do so in terms of foreseeability only, stating “the concept of foreseeability (a forward-looking concept) must be turned around 180 degrees and be applied to the conduct of co-conspirators occurring before the entry of a particular defendant into the conspiracy.” United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir.1991), cert. denied sub nom., Martin v. United States, — U.S. —, 112 S.Ct. 1590 , 118 L.Ed.2d 308 (1992). Turning the concept of foreseeability around, Edwards held coconspirators could be liable for the drugs distributed before they joined the conspiracy if they had “demonstrated a substantial degree of commitment to the conspiracy’s objectives.” Id. at 1394 .

We do not see how a court has authority to turn a concept “around 180 degrees.” See United States v. O'Campo, 973 F.2d 1015, 1024 (1st Cir.1992) (“[w]e decline to engage in a construction of the language of foreseeability that requires such a forced linguistic volte-face”). But Edwards ig nored the language of the Guidelines on “the scope of the agreement.” The Second Circuit picked up this language and wrote a gloss on it, holding that the latecomer to a conspiracy was liable for drugs earlier distributed, of which he “knew or reasonably should have known.” United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.), cert. denied, — U.S. —, 112 S.Ct. 347 , 116 L.Ed.2d 287 (1991). This gloss introduces a kind of negligence standard into conspiracy law. It goes beyond the terms of the Sentencing Guidelines. Cf. United States v. Navarro, 979 F.2d 786 (9th Cir.1992) (holding that the sentencing court erred in failing to make a factual determination as to the amount of drugs attributable to the defendant after his participation in the charged conspiracy).

An approach closer to the Guidelines was taken by the Seventh Circuit in United States v. Thompson, 944 F.2d 1331, 1343-44 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1177 , 117 L.Ed.2d 422 (1992). The court observed that a conspiracy conviction under 21 U.S.C. § 846 “does not establish beyond reasonable doubt that the defendant conspired with every other person charged in the indictment (or with any of them for that matter). It simply means that he agreed with at least one other person to violate the drug laws.” Id. The court went on to say:

Thompson is persuasive precedent as to the determination of the scope of the agreement. The case conforms with Illustration (e) of U.S.S.G. § 1B1.3, Commentary, Application Note 1, where a defendant convicted of being a participant in a general conspiracy is sentenced only on the basis of the drugs that he actually agreed to distribute. In accordance with Thompson we remand the cases of Quintal and Petty for the district court to determine two things: (1) the quantity of drugs distributed that were reasonably foreseeable by each and (2) the quantity of drugs distributed that were within the scope of the particular agreement that each entered.

We do not attempt to determine these quantities. The government must establish them by a preponderance of the evidence. By way of example, however, we note that Quintal could not have “foreseen” the drugs distributed before he joined the conspiracy, see United States v. Chavez-Gutierrez, 961 F.2d 1476, 1479-81 (9th Cir.1992), and that the scope of his agreement may or may not have been retrospective. Petty may or may not have foreseen the drug transactions of Kessack and Brownwood, and these transactions may or may not have been within the scope of his agreement. See United States v. Johnson, 956 F.2d 894, 906 (9th Cir.1992).

Sentences VACATED; REMANDED for resentencing.