dissenting.
As this case stands, both defendants pleaded guilty to all but the alleged drug quantity, and no jury played a part in the district court’s finding regarding this essential element of the charged offenses. Their sentences cannot rest on an element that was neither pled to nor found by a jury beyond a reasonable doubt. Accordingly, the defendants’ sentences are required to be vacated, and the case remanded for resentencing. See Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
In this appeal, defendants originally challenged their sentences on evidentiary grounds. After oral arguments, but while our decision here was still pending, the Supreme Court decided in Alleyne that any fact that increases the mandatory minimum sentence that a defendant stands to receive is an element of the offense that must be found by a jury beyond a reasonable doubt. Id. at 2156. Understandably, because Alleyne had not been decided, the district court did not inform defendants Ramírez and Alvarado of this right. Instead, the district court made determinations of drug quantity by a preponderance of the evidence, without submitting this question to a jury, and sentenced defendants under a mandatory minimum, in violation of Alleyne. This was clear error on the part of the court. My brethren disagree.
Although the district court acted within the bounds of the law as it stood at the time of sentencing, the law has changed, and the district court’s reliance on what was, at the time, an accepted practice, cannot save the sentence from running afoul of the Sixth Amendment. My colleagues rely on assumptions, which I will dispel, to reach a result that I find flies in the face of what is now a clearly established constitutional right.
I. Background
I take no issue with the majority’s recitation of the facts and only add, and perhaps reiterate, what I find is relevant to *55respectfully espouse my view that they are mistaken.
A. Procedural History
In May 2008, a grand jury returned a seven-count indictment against Alvarado, Ramírez, and 109 other co-defendants for, inter alia, conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C. §§ 841(a)(1). The defendants, who had initially pled not guilty, changed their pleas to guilty, refusing however, to concede that they were responsible for any specific drug amount. Drug quantity, and thus, the statutory range of punishment they would be exposed to, would be determined during sentencing.
In order to uphold its opinion, the majority is of the view that mandatory minimums were never at play during sentencing proceedings for either defendant. The district court made no mention of the phrase, they contend, hence it must be that the court considered only the Guidelines at sentencing, and proceeded to sentence both defendants, according to the Guidelines, and within the zero-to-twenty year statutory range of the subsection of § 841 that does not require a finding of drug quantity.
The record shows otherwise, and contravenes my brethren’s assumptions and no-harm-done conclusion. Perusal of the transcripts of the change of plea and sentencing hearings, the sentences imposed, and other parts of the record provide more than enough detail to trump any doubt that mandatory mínimums were definitive, and integral to the sentencing proceedings. As I will elaborate in more detail, the exchanges between the court and counsel are particularly relevant to defeating the majority’s view. They clearly establish that the district court was at all times considering a statutory range of ten years to life, which, under § 841(b)(1)(A) required a drug quantity determination of 280 grams in the case of cocaine base.
To the extent the drug quantities attributable to each defendant — and the mandatory mínimums that go with them — were determined by the district court, rather than a jury, and were found by a preponderance of the evidence, the Alleyne error is inescapable.
B. Change of Plea Hearing
During the change of plea hearing held for defendants on May 8, 2009, both indicated that they intended to contest the drug quantity amounts attributed to them, as well as their roles in the conspiracy, during the sentencing proceedings. To be sure, both defendants refused to admit any drug quantity. A lengthy exchange between the court and counsel ensued regarding, inter alia, the applicable statutory minimum as to each defendant.
Discussions of the mandatory minimum in the change of plea hearing began when the government declared that the maximum sentence the defendants were exposed to was a “term of life imprisonment, [and] at least ten years of supervised release,” and specifically as to the conspiracy charge, “up to life imprisonment .... and a minimum of ten years.” Tr. for Chg. of Plea Hr’g. at 46-47. Later on, the judge remarked that “[t]he statutory is clear. It’s ten to life as to all.” Id. at 58, 54.
But that was not the end of it. A discussion then followed regarding the ability of each defendant to enter a straight guilty plea to an indictment where each substantive count carries a ten-year mandatory minimum, while not conceding drug quantity. The district court expressed concern that, with such a guilty plea, it could not sentence defendants to less than the ten-year minimum, regardless of what could later be proven at sentencing. Id. at 58-59. Counsel for Alvarado maintained, *56however, that each defendant was entitled to an individualized drug amount determination, and that if the minimum quantity threshold was not proven, the ten year mandatory minimum could not be imposed. Id. at 60.
The district court then briefly revisited our decision in United States v. Colón-Solis, 354 F.3d 101 (1st Cir.2004). In Colóiv-Solis we held that to apply a mandatory minimum sentence for a drug conspiracy coconspirator, the court must make an individualized finding, by a preponderance of the evidence, ascribing the triggering drug quantity to that coconspirator. Id. at 103. Enlightened by that principle, the district court then remarked that “[i]n order to determine the applicable minimum, the court, notwithstanding any other statement made, as to each and every one of the counts, reserves the specific individual sentencing amount.... which may be below the statutory minimum of ten years.” Tr. for Chg. of Plea Hr’g. at 70-71. The question of the applicable statutory minimum was in the mind of all players, and was left open for determination at the sentencing proceedings.
The U.S. Probation Office representative then proceeded to compose the PSR. It underwent several changes and amendments as a result of court orders and objections from defendants, mostly regarding drug quantity attributions. A final PSR was submitted to the district court in January 2010, and it reflected a 56 grams-per-day amount sold at Pámpanos, and an offense level of 33. Once again, both Ramirez and Alvarado objected to the drug quantity assessment in the sentencing memoranda they filed prior to their sentencing hearings.
C. Sentencing
1. Alvarado’s Sentencing Hearings
Sentencing proceedings for Alvarado began on February 1, 2010, with an offer from the government to stipulate the drug quantity for a mandatory minimum sentence of 120 months; the ten year minimum under § 841(b)(1)(A). The court acknowledged the government’s offer and, upon Alvarado’s refusal to stipulate any drug quantity, warned that by not accepting the stipulation, he was exposed to a penalty that, according to the drug quantity found by the court, may or may not reach the threshold for the mandatory minimum. The court then stated that “[t]he burden of proof is on the United States by a preponderance of the evidence, not beyond a reasonable doubt standard because the amount is not an element of the crime”, and explained once again that if he were to accept the government’s offer, he would receive the mandatory minimum sentence for 50 grams of crack of ten years. Tr. for Sent. Hr’g. for Def. Alvarado, Feb. 1, 2010 at 7. Thereafter, there were several other references to what amount of crack would trigger which statutory minimum. Alvarado remained steadfast in his opposition to accepting any drug quantity, and the government proceeded to attempt to make its case.
Agent León was the main witness for the prosecution at sentencing. His testimony was based on personal surveillance, video recordings, his presence at a drug seizure, and information relayed to him by cooperating witnesses.
Agent León testified that he conducted surveillance 10 to 15 times during daytime and approximately 15 times during nighttime for 30- to 60-minute periods, and from a distance of 50 to 200 feet. He estimated that around 200 grams of crack were sold each day, totaling six kilograms per month, based on his calculations that each small baggy contained 0.2 grams of .crack multiplied by 25 (the number of *57small baggies in a single package) and then by 40 (the number of packages sold per day). He stated that he made these estimates on the basis of averages extrapolated from 30-minute periods of video and from personal surveillance. In addition, he stated that he reached that figure through interviews he carried out with sellers who had become cooperators. These cooperators were not presented as witnesses at sentencing. He also interviewed the individual that made the video recordings who personally saw transactions that were not in the videos. Finally, he extrapolated from his presence at a drug seizure where 400 bags of crack or cocaine were seized, and made a calculation as to how much was sold at the drug point per day.11 Agent León nevertheless conceded that drug sales were not the same every day.
During the course of the investigation, 78 video recordings were made by a cooperating witness who was also not presented as a witness. A selection of the video recordings were shown in edited form, jumping from one day to the next, skipping days, and moving between different times of the day. The recordings depicted sales of substances identified by Agent León as “either cocaine or crack”; he could not identify which precisely. Video recordings were not made when no drug transactions were occurring.
Agent Leon’s testimony regarding Alvarado specifically was based on his personal surveillance and interviews with cooperating witnesses, who were not presented as witnesses at sentencing. He stated that he personally witnessed Alvarado at the drug point during the night in March and in April 2008. Coincidentally, no video recordings were made on those nights. However, Agent León positively identified Alvarado in video recordings on fifteen different days.
On March 14, 2011, the final day of sentencing proceedings began with a discussion of how the Fair Sentencing Act’s new triggering drug quantities affected the mandatory minimum sentence for Alvarado. Defense counsel stated there was perhaps evidence to sustain 28 grams of crack, enough for a mandatory minimum of five years, but certainly not enough for the 280 grams that would trigger the ten year mandatory minimum. The government retorted that it had proven Alvarado was responsible for 4.5 kilograms of crack, more than enough for the ten year minimum.
Throughout the evidentiary hearings, counsel for Alvarado pointed to the want of reliability of the evidence presented by the government. Specifically, counsel insisted that a considerable part of Agent Leon’s testimony relied on hearsay and double hearsay, that his drug quantity calculations were often inconsistent and his averages were exaggerated to the point of being implausible, and that the videos were taken at different intervals, with none being taken when transactions were not occurring.
Nonetheless, the district court found that 3.06 kilograms of crack were attributable to Alvarado for his role in the conspiracy. The court discussed the guidelines, and arrived at a sentencing range of 120-135 months. The court then imposed a sentence within that range of 132 months for each count, to be served concurrently, and a term of supervised release of ten years. The minimum range determined by the court is the statutory minimum for *58§ 841(b)(1)(A). That section also mandates a term of supervised release- of no less than five years for those with a criminal record, and ten years for those with certain kinds of prior convictions.
2. Ramirez’s Sentencing Hearings
At Ramirez’s sentencing, Agent León testified that he participated in the investigation of the Pámpanos drug point by performing surveillance, reviewing surveillance videos, interviewing cooperating witnesses, confiscating drugs, and providing support to colleagues who conducted surveillance at Salistral. Specifically, he conducted an investigation from November 2007 until June 13, 2008, surveilled Pámpanos personally 25 to 30 times, and viewed 78 video recordings taken by a witness at Pámpanos. He also seized 399 baggies of cocaine in an apartment which a contracted chemist and lab supervisor, José Mercado, estimated to contain 0.2 grams per baggy. However, no official laboratory results were entered into evidence during the sentencing hearings. Also, during his surveillance, Agent León never spotted Ramirez, nor did he appear in any of the Pámpanos videos.
Ernesto Vidro, a cooperating witness, identified Ramirez’s role in the conspiracy during grand jury proceedings. At sentencing, Agent León relayed this information, but Vidro was not presented as a witness.
As to Pámpanos in particular, Agent León calculated averages for transactions and drug quantities relying on essentially the same information and dubious methodology as for Alvarado.
Finally, Agent León testified that Ramirez’s role as supplier of cocaine to the Kennedy drug point to be cooked to crack, was relayed to him by another cooperating witness, Ramón González. González, who also offered grand jury testimony, was also not presented as a witness at sentencing.
During the sentencing hearing, the district court expressed concern about the evidence being presented:
This is a bench hearing and you don’t know because I may very well state that the hearsay is of such magnitude in this case that it borders and it tramples due process, because up to now is pure hearsay as to liability and ownership — let me tell you all of the hearsay I’ve heard, because I’ve put them down here.
As to ownership, purely hearsay. As to supplier, purely hearsay. As to quantity, purely hearsay, up to now.
Tr. of Sent. Hr’g. for Def. Ramirez, Feb. 17, 2010 at 43. The district court reiterated this concern as the hearings continued and requested that the government file a legal memorandum “as to a sentence based purely on hearsay.”
As tó Ramirez’s sentence, the ten year mandatory minimum was again a matter of discussion between the court and counsel. Defense counsel alluded to the ten year supervised release term Ramirez stood to receive and referenced an earlier statement by the court that “a ten or twelve year sentence is not a Mickey Mouse sentence,” to which the court responded “[b]ut that doesn’t mean he’s going to get a ten year sentence”, clearly alluding to the mandatory minimum. Tr. of Sent. Hr’g. for Def. Ramírez, Mar. 19, 2010 at 32.
Thereafter, the court reviewed the Government’s supplemental brief and the evidence admitted at the evidentiary hearings, and found Ramirez responsible for 4.5 kilograms of cocaine, resulting in a base offense level of 38. Notwithstanding the court’s earlier apprehension and defense counsel’s repeated objections, the court clarified that the drug quantity amount was determined giving:
*59full credit to the amount of drugs that was determined by the policeman who had surveillance, who performed surveillance in Sal[i]stral and at Pámpanos and who saw plenty of ... videos of the drug transactions at Pámpanos and at the Salistral ward, and who interviewed the cooperators, and who had access, as I had access, to the grand jury transcripts.
Id. at 44-45.
The court discussed the relevant guideline factors for a sentencing guideline range of 262-327 months. Id. at 46. The court then imposed a sentence within that range of 162 months, for five counts charged. Upon release, Ramirez would be placed on supervised release for ten years as to three of the counts, to run concurrently.
Immediately thereafter, the court addressed Ramírez: “The court has sentenced you way below the statutory maximum. So the sentence is not illegal. I could have sentenced you to life.” Tr. of Sent. Hr’g. for Def. Ramírez, Mar. 19, 2010 at 52. Only § 841(b)(1)(A) carries the possibility of a life sentence, and required, at pre-FSA quantities which were applicable to Ramírez, a drug quantity finding of at least 50 grams of cocaine base.
If there is any doubt that the district court’s imposition of sentence was guided by its reliance on the threshold drug amount that triggers the mandatory minimum of ten years, the record provides the proverbial nail in the coffin. The judgment for Ramirez describes his offense as a conspiracy with intent to distribute in excess of 50 grams of cocaine base, the triggering amount for ten to life prescribed by § 841(b)(1)(A).
II. Discussion
On appeal, defendants challenged the district court’s findings at sentencing as to drug quantity. They essentially argue that the court relied on hearsay, double hearsay, inconsistent testimony and faulty calculations of average drug amounts based on speculation, and unsupported by scientific data. After oral argument, we ordered the parties to submit additional briefs on the issue of whether the Supreme Court’s recent decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), impacts this appeal. In response to our supplemental briefing order, Ramírez and Alvarado argue that Alleyne prohibits their sentences, because the district court made individualized drug quantity determinations by a preponderance of the evidence, without a jury’s determination or their admission.
As I believe I have established, the record leaves no doubt that the district court was at all times weighing the evidence while targeting the mandatory minimum. And it did so by a preponderance of the evidence standard. That it also considered and determined the guideline range does not negate this fact. Accordingly, Alleyne squarely applies, and defendants hold the upper hand.
The relevant statute of conviction prohibits the “manufacturing], distributing], or dispensing], or posess[ing] with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). At the time of Ramirez’s sentencing, § 841 imposed a mandatory minimum sentence of twenty years to life for drug offenses involving more than fifty grams of crack cocaine.12 21 U.S.C. *60§ 841 (b)(1)(A)(iii), (viii) (2006), amended by Pub.L. No. 111-220, 124 Stat. 2372, 2372 (2010) (increasing this amount to 280 grams or more). If the defendant was responsible for five or more grams of crack cocaine, the law imposed a mandatory minimum sentence of five to forty years. 21 U.S.C. § 841(b)(l)(B)(iii), (viii) (2006), amended by Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, 2372 (2010) (increasing this amount to 28 grams or more). Lastly, a defendant could be sentenced to between zero and twenty years for violating section 841 with any unspecified amount of crack cocaine. 21 U.S.C. § 841(b)(1)(C).13 These factual differences, the defendants argue, mean that the district court could not impose any sentence despite their guilty plea, because it only made individual drug quantity determinations by a preponderance of the evidence. They therefore urge us to vacate their sentences and remand.
In Alleyne, the Supreme Court held that “facts that increase the mandatory minimum sentence” to which a criminal statute exposes a defendant, are “elements [that] must be submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at 2158. This holding was merely an extension of the Supreme Court’s prior decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that, besides a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).
We have already had occasion to grapple with Alleyne and its implications. Recently, in United States v. Harakaly, 734 F.3d 88, 94 (2013) we recognized an Alleyne error in the context of a guilty plea involving a drug offense under § 841. Although Harakaly entered a straight plea of guilty, he had not admitted any particular amount of drugs involved in the crime charged. Id. at 91 (“When asked whether Harakaly conceded any drug quantity, defense counsel stated that he did not.”). Harakaly’s indictment was silent on drug quantity. Id. Nonetheless, during sentencing, the district court found Harakaly responsible for more than fifty grams of methamphetamine, triggering a ten-year mandatory minimum under § 841. Because we concluded that the district court violated Alleyne, we found error, but held that it was harmless beyond a reasonable doubt given the overwhelming evidence of drug quantity against Harakaly. Id. at 97.
Like the Harakaly court, the district court here erred when it made individualized drug determinations for Alvarado and Ramirez by a preponderance of the evidence, and set a statutory minimum based on that determination. If the defendant waives his right to a jury trial — i.e., the right to, inter alia, have the element of drug quantity proven beyond a reasonable doubt — then, in order to sustain a conviction, Alleyne logically requires the defendant’s admission of drug quantity. At the time they submitted their guilty pleas, and all throughout sentencing proceedings, defendants here specifically declined to admit to any drug quantity. Therefore, to allow the judgment to stand as is, is to sanction two convictions where an element of the offense has not been pled to, or found by a jury beyond a reasonable doubt; quite a flight in the teeth of Alleyne.
*61As defendants’ case was. pending on appeal at the time the Supreme -Court handed down Alleyne, there is no question its holding applies here. See Griffith v. Kentucky, .479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final....”). Unlike Harakaly however, defendants here did not preserve their Alleyne claims below, and only argued the error on appeal after we ordered supplemental briefing on the issue. Accordingly, review of Ramirez and Alvarado’s Alleyne claim, is for plain error. Cf. Harakaly, 734 F.3d at 94 (“This court reviews unpreserved Apprendi errors for plain error and preserved Apprendi errors for harmless error.”); see also United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir.2014). Plain error review requires a defendant to show that an error occurred; that the error was clear or obvious; and, that the error affected substantial rights, or the outcome of the case. United States v. Rodríguez, 675 F.3d 48, 64 (1st Cir.2012). “Even if a defendant can show all of this, we have discretion not to intervene if we conclude that the error does not distort the fairness or integrity of the lower court proceedings.” Id.
On appeal, Alvarado exploits several aspects of Agent Leon’s testimony regarding drug quantity: that he did not know the relative amounts of marijuana, heroin, and cocaine sold at the drug point and could not conclude that crack was the substance most sold; that he was unable to tell whether cocaine or crack was being sold in any given transaction involving a white substance in a transparent baggy; that his surveillance at the drug point was partial and he made no notes; that he relied on unsupported assertions of a cooperating witness that 1,000 baggies were sold each day at the drug point; and that his testimony that 150 transactions occurred per hour was not credible. Additionally, he argues that the video recordings were unreliable and any averages derived therefrom lack empirical underpinnings. Specifically, he claims that, since the video only recorded when there was movement at the drug point, the footage did not represent an entire day’s worth of transactions nor did they account for fluctuations because of weather or police activity. Further, it is alleged it was impossible to determine from the recordings what substance was being sold in those transactions. In relying on the videos, Alvarado insists, Agent León made unsubstantiated and conclusory assertions that out of an estimated 150 transactions per hour, 40 involved crack.
Similarly, as to the specific issue of drug quantity, Ramirez also identifies significant flaws with the government’s evidence. Ramirez likewise claims that the drug quantity evidence introduced by the Government was unreliable and that his due process rights at sentencing were violated. As to the evidence introduced to determine the proper drug quantity amount attributable to him from the Pámpanos drug point, Ramirez points out that: the videos do not allow for proper differentiation between crack and cocaine sold; the only evidence linking Ramirez to the drug point is based on double hearsay of what one drug gang leader allegedly told Vidro; reliance on information obtained from Vidro was unreliable because his grand jury testimony reflects that he could not remember how many baggies of cocaine were sold at the drug point;14 the 0.2 gram per baggy fig*62ure was based on double hearsay evidence from a laboratory supervisor without production of written laboratory results nor any indication that the laboratory supervisor weighed the drugs personally; and the estimates of average daily amounts sold of 200 grams per day were based on insufficient sampling based only on one day rather than a broader set of days. Further, Ramirez notes the discrepancy between drug amounts attributable to various de-, fendants from conduct at the Pámpanos drug point, noting that, in Alvarado’s case, the weight determined per baggy was 0.075 grams while in his case, the weight per baggy was 0.2 grams. As to Salistral, Ramirez argues that since no videos were taken at the drug point and no drug quantity determination was made as to that drug point, evidence drawing any drug quantity , amount attributable to him is unreliable.
In Harakaly, we affirmed the district court’s conviction under the more lenient harmless error standard, and found that notwithstanding the Alleyne error, there was overwhelming evidence of drug quantity sufficient to trigger the heightened penalty provision. Harakaly, 734 F.3d at 96 (finding evidence of drug quantity overwhelming where defendant, at the change of plea hearing, acknowledged the accuracy of an account from a coconspirator that he had delivered to co-conspirator an amount of drugs far exceeding the triggering amount). Here, the government has marshaled no such evidentiary effort, and Ramírez and Alvarado have accurately and appropriately pointed us to serious flaws in the government’s case. Perhaps most telling of all, is the district court’s own recognition that the evidence presented by the government at sentencing, was largely hearsay and deficient to the point of trampling due process.
If the Sixth Amendment still allowed the district court to make drug quantity findings for determining mandatory minimums by a preponderance of the evidence — without any admission from the defendants— perhaps my conclusion would differ. However, the Supreme Court has clarified the significance of mandatory minimum sentences under federal law, and, on these facts, I find the majority’s view unpersuasive, that the application of Alleyne can be avoided. Accordingly, the error here is plain. Furthermore, given the serious evidentiary weaknesses in the government’s case, it is obvious that the conviction rests on evidence that would likely not be admissible had the case, or the element of drug quantity alone, been submitted to a jury. Under these circumstances, the district court’s Alleyne error clearly distorted the fairness and integrity of the trial court proceedings. Rodríguez, 675 F.3d at 64.
In Delgado-Marrero, we found reversible error, under plain error review, where the court, after trial and on a special verdict question, failed to instruct the jury that the element of drug quantity was to be determined beyond a reasonable doubt. Delgado-Marrero, 744 F.3d at 188-89. We further noted that, due to the shortcomings of the drug quantity evidence presented by the government, this was not “a case in which the evidence tying the defendant to the charged conspiracy involved drugs that were indisputably in excess of the requisite amounts.” Id. at 189. (citations omitted). In Delgado-Marrero, the evidence of drug quantity presented by the government was merely contestable, yet we found that contestability enough to warrant reversal. In this case, however, *63the evidence proffered by the government is clearly unreliable and, moreover, likely inadmissible at a jury trial. Therefore, Delgado-Matrero’s reasoning on this point is all the more persuasive, on these facts.
As to the proper remedy, our recent decision in United States v. Pena, 742 F.3d 508 (1st Cir.2014) suggests the way forward. In Pena we found reversible Alleyne error where the defendant pled guilty to an underlying drug offense, and the court later found, by a preponderance of the evidence, that death had resulted from the defendant’s drug dealing, thus exposing the defendant to a higher mandatory minimum sentence; an element not pled to nor found by a jury beyond a reasonable doubt. Id. at 514. We remanded for resentencing for the underlying offense only, excluding the “death resulting” charge, and refused to allow the government, in part because of Double Jeopardy considerations, to re-indict Pena and seek a conviction for “death resulting” by way of a special sentencing jury. Id. at 509.
In Pena we recognized that, though perhaps not warranted in every case, a typical solution for an Alleyne error is to remand for resentencing. Id. at 515. We noted that “Post-Apprendi cases are also instructive, because Alleyne is an extension of the Apprendi doctrine” and that the remedy for an Apprendi error is “usually a simple remand to the district court for resentencing.” Id. at 518 (internal quotations and citations omitted). We further noted that “[e]ven on plain error review, several of our sister circuits likewise held that a remand for resentencing by the district judge on the charge of conviction was required.” Id.
Indeed, as noted in Pena, the Second, Sixth, and Tenth Circuits have, on plain error review, remanded for resentencing where, as here, the defendant pled guilty to drug crimes, but not to drug quantity, and the lower court endeavored to make drug quantity findings by a preponderance of the evidence in violation of Apprendi. Id. at 518 n. 12; see also United States v. Doe, 297 F.3d 76, 93 (2d Cir.2002)(remanding for resentencing, on plain error review, where defendant pled guilty to drug crimes without specified drug quantity and the district court made quantity findings by a preponderance standard); United States v. Campbell, 279 F.3d 392, 397, 402 (6th Cir.2002)(same); United States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir.2001)(same). I would find this occasion appropriate for following this same path, and would order the district court to re-sentence Ramírez and Alvarado to crimes that require no drug quantity determination.
Contrary to what my brethren suggest, my view of this matter in no way encroaches on a trial court’s fact finding function at sentencing. A trial court’s duty, and discretion, to find facts in order to determine a proper sentence under the guidelines remains untouched. However, “[ejstablishing what punishment is available by law[,] and setting a specific punishment within the bounds that the law has prescribed are two [very] different things.” Alleyne, 133 S.Ct. at 2163 (citation omitted). Courts remain free to determine the appropriate sentence only after, in the absence of a plea of guilty to all elements, a jury has determined the adequate statutory range. The latter, it can no longer do without the factual findings of a jury.
III. Conclusion
That the new sentences the district court might impose pursuant to my proposed order — within the twenty year maximum allowed by § 841(b)(1)(C) — could very well be identical to the one the major*64ity allows to stand today, is irrelevant. Though resentencing might ultimately seem formalistic if the same sentence results, whereas the facts found by the district court here aggravated the legally prescribed range of punishment, the Sixth Amendment has been disregarded. Alleyne, 133 S.Ct. at 2162. Accordingly, I respectfully dissent.
. On the third day of the sentencing hearing, Agent León testified that "400 bags of coke” were seized, but on cross-examination, stated that it was "400 bags of crack” that were seized.
. The triggering drug amounts were modified via the Fair Sentencing Act. Though the parties do not dispute, and assume in their briefs, that the old crack cocaine quantities and punishments apply, my brethren point out that Ramirez was sentenced in March *602010, before passage of the FSA, and is thus subject to penalties as they stood before the FSA. Alvarado, on the other hand, would perhaps reap the benefits of the FSA's more lenient crack cocaine amount provisions.
. The FSA did not amend the relevant portion of this provision.
. In his grand jury testimony, Vidro stated that, "what I can recall is the last day I worked I sold 14 packages of cocaine and e;ach one contained 25 baggies.... It was not *62a very good day, not a bad day. It was just mid week, it was a Wednesday.” Whén asked on which days more drugs were sold at the drug point, Vidro answered, "Fridays and Saturdays.”