dissenting in part:

I agree with the majority that we lack jurisdiction to review appellants’ interlocutory claim of vindictive prosecution. The majority’s holding that the appellants’ double jeopardy claim is unripe presents quite a different matter.

Appellants’ position is that because the shipping of detonators with which they are charged in this prosecution was taken into account as relevant conduct in their prior Florida sentences, double jeopardy principles foreclose this prosecution, as well as any conviction or punishment that might follow from it. That claim is ripe. A claim of possible double jeopardy must be decided before the second trial. See Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977). The government does not even challenge ripeness.

The majority overlooks the critical point that appellants have served their Florida sentences. The majority may be confused by the fact that on appeal, the Eleventh Circuit vacated appellants’ Florida sentences and remanded for specific findings concerning the conduct that supported those sentences. See *432 United States v. McKinley, 995 F.2d 1020 (11th Cir.1993), cert. denied, — U.S. — and — U.S. —, 114 S.Ct. 1405 and 114 S.Ct. 1552 , 128 L.Ed.2d 77 and 128 L.Ed.2d 201 (1994). However, the original sentences were imposed at the top of the Guideline range because they were calculated with reference to all of the objects of the Count I conspiracy, McKinley, 995 F.2d at 1023, 1024 . Those objects included the Arizona shipment of detonators. The Florida district court had heard evidence that the detonators were “taken to the Greyhound business station in Tucson and shipped to New York.” (ER-33). Whether the Florida district court erred in sentencing on the basis of that conduct is irrelevant for purposes of double jeopardy or punishment. A trial and punishment have already occurred.

The majority may also be confused by the government’s argument that different detonators from those at issue in the Arizona indictment may have been involved in the Florida proceeding. There is no suggestion in this record that there were any detonators in Arizona other than those described in the Florida proceedings. Even if a factual issue does exist, it should be determined by the district court prior to trial. The legal claim of double jeopardy is not thereby rendered unripe.

On the merits, the circuits are divided as to whether a defendant can be tried and sentenced on conduct that has already been considered in an earlier prosecution and deemed “relevant conduct” in a sentence under the Sentencing Guidelines. The Second Circuit has held squarely that the government cannot mount a second prosecution in such circumstances. United States v. McCormick, 992 F.2d 437, 439 (2nd Cir.1993). The Tenth Circuit has held that a second trial can go forward. United States v. Koonce, 885 F.2d 720, 722 (10th Cir.1989) (Koonce II). However, when later faced solely with the question of double punishment, it held that the defendant could not be convicted and punished a second time. United States v. Koonce, 945 F.2d 1145 , 1154 n. 10 (10th Cir.1991) (Koonce III), cert. denied, — U.S.—and — U.S.—, 112 S.Ct. 1695 and 112 S.Ct. 1705 , 118 L.Ed.2d 406 and 118 L.Ed.2d 413 (1992).

The Fifth Circuit,, on the other hand, has recently held that neither the prosecution nor punishment of conduct that was included as relevant conduct in an earlier prosecution is automatically barred by double jeopardy. United States v. Wittie, 25 F.3d 250 (5th Cir.1994) (relying on provisions of the Sentencing Guidelines adopted after Koonce III but before McCormick); see also United States v. Cruce, 21 F.3d 70 (5th Cir.1994), petition for cert. filed, (Jun. 24, 1994) (No. 93-9712). In a related context, the Seventh Circuit has held that when conduct is used to enhance a sentence, the same conduct may be the basis for a subsequent prosecution of a substantive offense. United States v. Brown, et al., 31 F.3d 484, 494 (7th Cir.1994); see also United States v. Duarte, 28 F.3d 47 (7th Cir.1994).

In my view, the Second Circuit’s approach appears more in line with Congressional intent to ensure that defendants prosecuted for similar conduct be treated similarly. Under the Fifth Circuit’s approach, the government could engage in repeated prosecutions if at first it obtained an unsatisfactory sentence. This sort of count manipulation constitutes the very evil that Congress wished to avoid in enacting the Sentencing Guidelines. U.S.S.G. Ch. 1, Pt. A 4(a), Policy Statement. I see no point in following the Tenth Circuit’s approach in Koonce, which effectively permitted a second trial to go forward that ultimately could not have resulted in a lawful conviction or sentence.

For these reasons, I respectfully dissent from the majority’s refusal to consider the double jeopardy claim.