dissenting.
I respectfully suggest the court incorrectly uses the Sentencing Guidelines to determine which count was “more serious.” Accordingly, I concur in the result reached by the court but disagree with its reasoning.
The Supreme Court stated in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), that if the Government decided to forego “more serious charges” in a plea bargain involving a Bailey claim, then the petitioner must show he is actually innocent of those charges. Id. at 624, 118 S.Ct. 1604. In this case, the petitioner cannot show he is innocent of the foregone charges. Therefore, the only issue for this court is wheth*555er those charges were more serious than the gun charge. The Supreme Court, however, provided little guidance on how to decide the issue.
The criminal statutes and the Sentencing Guidelines are the two most logical sources to look to for guidance. Both present Congress’ view of a crime’s severity through the type and length of punishment imposed. Given these two guideposts, the district court chose to use the statutory maximum punishment to determine the seriousness of a charge. This court now reverses the district court and holds the distinctions should be made by looking at the Sentencing Guidelines.
I disagree with both approaches. This court clearly looks to the wrong source in the guidelines. The district court looked at the right source, but only at one part of it — the statutory maximum. I contend the best approach is to look at both the statutory minimum and the statutory maximum to determine which charge is more serious.
When forced to choose between the Sentencing Guidelines and criminal statutes to determine Congress’ true intent, the Supreme Court and this court have consistently held that statutes trump the guidelines. See United States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (discussing career offender determinations); Neal v. United States, 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) (discussing drug quantity measures for LSD); United States v. Fountain, 83 F.3d 946 (8th Cir.1996) (career offender); United States v. Stoneking, 60 F.3d 399 (8th Cir.1995) (LSD). We have stated that “[i]n general, when a statute and a guideline conflict, the statute controls.” Stonek-ing, 60 F.3d at 402.
Statutes are Congress’ clearest statement of intent because they provide a fixed range of punishment for the charge alone, without consideration of any other factors. Thus, in every criminal case, the criminal statute is essentially the starting point for any sentencing analysis. On the other hand, the Sentencing Guidelines are “ ‘es-sentiaUy a system of finely calibrated sentences’ ” that account for many factors in addition to the charge. Neal, 516 U.S. at 292, 116 S.Ct. 763 (quoting United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System iii (Aug.1991)). For example, the guidelines provide for grouping of charges for sentencing and adjustments of a sentence for “acceptance of responsibility,” “substantial assistance,” “more than minimal planning,” “vulnerable victim” and many other similar factors. The Sentencing Guidelines create steadily increasing penalties based on appropriate factors, while the mandatory sentences of the statutes result in “cliffs.” See id. Because they are so clear-cut, it is those “cliffs” that show in dramatic terms the severity of a crime and that provide courts with the most guidance in determining which crime is more serious.
The folly of using the Sentencing Guidelines to compare the relative seriousness of different offenses is graphically laid out in this case. The district court gave Halter a two-level reduction for acceptance of responsibility, and reduced his sentence by one-third for substantial assistance. These two sentence reductions may not have been granted if not for the mistaken assumption that Halter would have to serve sixty-months’ imprisonment for a gun charge in addition to any other sentence he was given. It is difficult now for any court to go back and re-create the strategy the government would have pursued at sentencing without the gun charge. Additionally, it is hard to retrace the steps the district court would have taken under the Sentencing Guidelines to arrive at a fair sentence without the gun charge. Therefore, the use of the Sentencing Guidelines is fraught with many more complications than the Supreme Court could have possibly anticipated when it held that a petitioner’s showing of actual innocence needed to extend to the more serious charges.
*556Although the approach of using the criminal statutes to determine which charge is more serious also has imperfections, these imperfections are fewer than those presented by the guidelines. In most cases, Congress will have set forth a clear minimum and a clear maximum. If both the statutory minimum and the maximum for a given charge are higher than the five years required for the gun charge, then the charge is more serious. If the minimum and maximum are both less than for the gun charge, then the gun charge is more serious. It is only in those cases where the maximum is higher and the minimum is lower, that the determination becomes more complex.
This, unfortunately, is one of those cases. Halter was charged with a violation of 18 U.S.C. § 924(c)(1), for the use or carrying of a firearm during a drug offense. This charge carries a sentence of five years. He was also charged with three counts of drug distribution in violation of 21 U.S.C. § 841(a)(1). Each of those charges carries a maximum sentence of “not more than twenty years,” but no minimum sentence is given. Thus, we are faced with the situation where the minimum could be lower than that of the gun charge, and a maximum that is higher. In this situation, the rule of lenity should be applied.
The rule of lenity prevents a court from interpreting a criminal statute to increase the penalty the statute places on an individual when such an interpretation is based on no more than a guess about Congress’ intentions. See United States v. Lazaro-Guadarrama, 71 F.3d 1419, 1421 (8th Cir.1995). Accordingly, the rule of lenity allows courts to resolve doubts about the ambiguity of which charge is more serious in favor of a petitioner. See United States v. Warren, 149 F.3d 825, 828 (8th Cir.1998). Thus, because the drug distribution charges carry lower minimum sentences than the gun charge, the gun charge is the “more serious charge.” As a result, Halter’s procedural default is excused.
This conclusion does not end in sentencing certainty. The section 924(c) gun charges precluded the district court from considering the possible use or possession of a firearm in its initial sentencing calculus. With the vacation of that charge, the court may now do so. Accordingly, I would also reverse the district court and remand the case for resentencing but in a manner consistent with this concurrence and dissent.