The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
I agree that this case should be remanded for a determination of the scope of the criminal activity jointly undertaken by defendant Jordan in concert with others.
In many conspiracy eases — and perhaps in most — the scope of the jointly undertaken criminal activity will be the same as that of the charged conspiracy. I assume that this was the situation in United States v. Brown, 147 F.3d 477 (6th Cir.1998), and it may well be the situation in the case at bar as well. But here the comments of the district judge reflect an understanding that, as a matter of law, jointly undertaken criminal activity necessarily corresponds in scope to the entire conspiracy. This is not correct, according to the Sentencing Commission. We cannot be sure what view the district judge would take of the scope of the jointly undertaken criminal activity had the judge understood the Commission’s position — and this uncertainty, in my view, justifies the remand. Accordingly, and because I agree that it was appropriate to determine Jordan’s relevant conduct under a “preponderance of the evidence” standard, I concur in the judgment and in the opinion Judge Rice has written for the court.