concurring.
I join in Judge Garwood’s fine opinion. I write separately because of the implications of his footnote 12, which deals with the potential impact on this case of the Supreme Court’s recent decision in Apprendi v. New Jersey, — U.S.-, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ap-prendi declared that “[ojther than the fact of 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.” Id. at 2362-63. Viewed through the lens of the separate opinions of Justices Scalia, Thomas, O’Con-nor, and Breyer, see infra at 236-38, Ap-prendi’s implications for the legitimacy of a variety of sentencing schemes, including the United States Sentencing Guidelines, have sthred enormous controversy, portending that the number of Apprendi challenges by incarcerated defendants will soon reach tidal proportions.1 While I ultimately conclude that we need not and should not reach the Apprendi issue in this case, the merits of that point seem to me to be close. I therefore take this opportunity: (1) to explain why the question is difficult; and (2) to identify one critical Apprendi concern that is created by the *237unique intersection between the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e), and the Sentencing Guidelines.
I.
Charles Apprendi fired several shots “into the home of an African-American family that had recently moved into a previously all-white neighborhood.” 120 S.Ct. at 2351. The State of New Jersey charged him with, and Apprendi pled guilty to, inter alia, two counts of second-degree possession of a firearm for an unlawful purpose. See id. at 2352. The maximum sentence for this crime under New Jersey law was ten years in prison. See id. (citing NJ.Stat.Ann. § 2C:32-6(a)(2)). Nevertheless, the trial court sentenced Ap-prendi to twelve years in prison, relying on a statute that allowed for an “enhanced” sentence of up to twenty years if the sentencing judge found that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race.... ” Id. at 2351-52 (quoting NJ.Stat.Ann. § 2C:44-3(e)). The Supreme Court of the United States reversed Apprendi’s sentence, holding that “[t]he New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Id. at 2366.
While Apprendi itself concerned only the New Jersey hate crime statute, there are numerous suggestions in the majority, concurring, and dissenting opinions that the case’s scope may be quite broad indeed. Justice Thomas’s concurrence argued that any fact that alters the range of punishments to which a defendant is exposed must be found by a jury, see id. at 2379-80, acknowledging that his proposed rule might invalidate the Sentencing Guidelines themselves. See id. at 2380 n. 11. Justice Scalia’s concurrence maintained that “all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.” Id. at 2367. Justice O’Connor’s dissent expressed concern that the Court’s holding “will have the effect of invalidating significant sentencing reform accomplished over the past three decades.” Id. at 2394. And Justice Breyer, a key figure in the development of the Sentencing Guidelines, lamented that “the rationale that underlies the Court’s rule suggests a principle ... that, unless restricted, threatens the workability of every criminal justice system (if applied to judges) or threatens efforts to make those systems more uniform, hence more fair (if applied to [sentencing] commissions).” Id. at 2402.
The majority responded to these allegations simply by noting that “[t]he Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held. See, e.g., Edwards v. United States....” Id. at 2366 n. 21. Edwards, the only case cited by the majority, was quoted for the proposition that “a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines.” 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). The Court did not cite Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the case that originally upheld the constitutionality of the Sentencing Guidelines.
II.
A jury convicted Charles Mack of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) [hereinafter “the felon-in-possession statute”]. Section 924 (captioned “Penalties”) contains the penalty provisions for the offenses contained in Section 922. Section 924(a)(2) states that “[w]ho-ever knowingly violates [the felon-in-possession statute] shall be fined as provided in this title, imprisoned not more than 10 years, or both.” The ACCA, codified at Section 924(e), provides that “[i]n the case of a person who violates [the felon-in-pos*238session statute] and has three previous convictions ... for a violent felony ... such person shall be fined not more than $25,000 and imprisoned not less than fifteen years.... ” While the statutory text provides only that violators shall be “imprisoned not less than fifteen years,” the Supreme Court has construed this language as authorizing a life sentence. See Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). It is important to note, as Judge Garwood recognizes, that “[t]he ACCA is a sentence enhancement statute and does not create a separate offense.” Maj. op. at 232; see also Custis, 511 U.S. at 490, 114 S.Ct. 1732 (holding that the ACCA “provides an enhanced sentence” for persons found to meet its criteria) (emphasis added).
The District Court sentenced Mack to 262 months in prison. This sentence was the result of the combination of two sentence enhancements found by the District Court pursuant to the Sentencing Guidelines. The first enhancement, which I will refer to as “the ACCA enhancement,” applied because Mack was “subject to an enhanced sentence under the provisions” of the ACCA. U.S.S.G. § 4B1.4(a) (defining such an individual as “an armed career criminal”); id. § 4B1.4(b)(3)(B) (mandating that the offense level for any “armed career criminal” shall be no less than 33); id. § 4B1.4(c)(3) (enhancing the criminal history rating for all “armed career criminal[s]” to at least Category IV). A simple finding that Mack was an armed career criminal would have, without more, raised his sentencing range under the Guidelines to between 188 and 235 months. See id. § 5A.
The second enhancement, which I will henceforth refer to as the “crime of violence enhancement,” applied because the District Court concluded that, in addition to being an “armed career criminal,” Mack had also “possessed [a] firearm .... in connection with a crime of violence,” i.e., the shooting of Gregory Wessels. Id. § 4B1.4(b)(3)(A);2 § 4B1.4(c)(2).3 This enhancement further raised Mack’s potential sentence to between 262 and 327 months. See id. § 5A.4 As noted above, the District Court ultimately sentenced Mack to serve 262 months in prison.
III.
The Apprendi inquiry has two stages. A court must first determine the “prescribed statutory maximum” sentence for the crime of which the defendant was convicted and assess whether the defendant’s ultimate sentence exceeded it. If it did, the court must consider the second-order Apprendi question: whether the enhanced sentence was based on “the fact of a prior conviction.” If it was, then the sentence is constitutional.5 If it was not, then the *239sentence is unconstitutional. See Apprendi, 120 S.Ct. at 2362-63.
A.
In his footnote dealing with the Appren-di issue in this case, Judge Garwood resolves the inquiry at stage one, stating that “[w]hat was before the Court in Ap-prendi were facts (other than the fact of prior conviction) ‘that increase[ ] the penalty for a crime beyond the prescribed statutory maximum.’ [Citing Apprendi\. That is not the case here, where the statutory maximum is life imprisonment, (see note 4 and 7, supra).” Maj op. at 234-35 n. 12. I am not so sure.
What was the prescribed statutory maximum in this case? There are two possibilities. The first and most obvious answer is 120 months. The jury convicted Mack of violating the felon-in-possession statute; he was not charged with, nor convicted of, any other crime. The maximum possible sentence for violating the felon-in-possession statute simpliciter is 120 months. See 18 U.S.C. § 942(a)(2). Thus, if Mack’s prescribed statutory maximum was set at the time of the jury’s verdict, then his ultimate sentence of 262 months exceeded it, and the first stage of the Apprendi inquiry should be resolved in Mack’s favor.
The other possibility, which Judge Garwood endorses, is that the prescribed statutory maximum in this case was life imprisonment, i.e., the maximum sentence statutorily authorized by the ACCA. See Custis, 511 U.S. at 487, 114 S.Ct. 1732. If this is true, then Apprendi is not implicated because Mack’s ultimate sentence (262 months) was within the prescribed statutory maximum.
1.
While not spelled out in his opinion in these terms, Judge Garwood’s position appears to be as follows: (1) a jury convicted Mack of being a felon in possession of a firearm in violation of the felon-in-possession statute; (2) the ACCA applies “[i]n the case of a person who violates [the felon-in-possession statute] and has three previous convictions ... for a violent felony;” (3) under Apprendi, the District Court (rather than a jury) was entitled to find that Mack “ha[d] three previous convictions ... for a violent felony,” and thus to sentence Mack under the ACCA; (4) the ACCA statutorily authorizes a life sentence; (5) the prescribed statutory maximum in this case was thus life imprisonment; and, therefore, (6) Mack’s ultimate sentence of 262 months was within the prescribed statutory maximum and Ap-prendi is not implicated.
WTiile not without force, this approach to determining a prescribed statutory maximum is in tension with the methodology applied by the Supreme Court in Appren-di. Demonstrating why this is so requires a comparison of the sentencing mechanics at issue in this case with those at issue in Apprendi:
(1) Apprendi was “convicted of possession of a firearm for an unlawful *240purpose.” Apprendi, 120 S.Ct. at 2351. Mack was convicted of knowingly violating the felon-in-possession statute;
(2) Absent any additional findings by the trial court, the maximum sentence that Apprendi faced would have been ten years in prison. See id. Absent any additional findings by the District Court, the maximum sentence that Mack faced would have been ten years in prison. See 18 U.S.C. § 924(a)(2);
(3) New Jersey law provided that the trial court was required to sentence Apprendi to “an extended term” of up to twenty years if it found that he “acted with a purpose to intimidate an individual ... because of race.” N.J.StahAnn. § 2C:44-3(e); see id. § 2C-43-7(a)(3) (providing that the extended term for a person convicted by a jury of a “crime of the second degree” shall be “between 10 and 20 years”). The ACCA provides that the District Court was required to sentence Mack to an “enhanced sentence” of up to life imprisonment, see Custis, 511 U.S. at 487, 490, 114 S.Ct. 1732, if it found that he “ha[d] three previous convictions ... for a violent felony.” 18 U.S.C. § 924(e)(1);
(4) The New Jersey trial court found that Apprendi had committed his crime “with a purpose to intimidate” and sentenced him to a “12 year term of imprisonment,” which was 2 years longer than Apprendi could have been sentenced to serve but for the “purpose to intimidate” finding. 120 S.Ct. at 2352. The District Court found that Mack “ha[d] three previous convictions ... for a violent felony” and sentenced him to serve 262 months (or .21 years and 10 months) in prison, which was 11 years and 10 months longer than Mack could have been sentenced to serve but for the “three previous convictions ... for a violent felony” finding;
(5)Apprendi held that “[ojther than the fact of 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.” 120 S.Ct. at 2362-63. The Supreme Court held that Ap-prendi’s sentence violated this constitutional rule. See id. at 2363. For the Court to do so, it needed to conclude that the “purpose to intimidate” finding “increase[d] the penalty for [Apprendi’s] crime beyond the prescribed statutory maximum.” But if the New Jersey trial court’s “purpose to intimidate” finding increased Apprendi’s sentence beyond the prescribed statutory maximum, then the District Court’s “three previous convictions ... for a violent felony” finding did the same to Mack — the mechanics are identical.
2.
There are, to be sure, some differences between Apprendi and this case, but these differences are not material to the determination of the prescribed statutory maximum sentence. The first difference exists in the wording of the statutes, Apprendi was convicted of possession of a firearm with an unlawful purpose, which is defined as a “crime of the second degree.” N.J.StatAnn. § 2C:39:4(a). Under New Jersey law, a “crime of the second degree” carries a potential sentence of “between five and 10 years.” Id. § 2C:43-6. Nevertheless, a different provision of the New Jersey Code of Criminal Justice states that a trial court shall sentence a defendant to “an extended term” if it finds that the defendant “acted with a purpose to intimidate.” Id. at 2C:44-3. Thus, the base level sentence for a second degree offense is provided in Section 2C:43-6 and Section 2C:44-3 overtly purports to autho*241rize “an extended term” above and beyond that base sentence.
Title 18 of the United States Code operates somewhat differently. Mack’s substantive offense was violating the felon-in-possession statute. Section 924 provides two different sentencing options for such a person. Section 924(a)(2) provides that “[w]hoever knowingly violates [the felon-in-possession statute] shall be ... imprisoned not more than 10 years.” The ACCA, Section 924(e)(2), provides that “[i]n the case of a person who violates[the felon-in-possession statute] and has three previous convictions ... for a violent felony,” the minimum sentence shall be fifteen years and the maximum shall be life imprisonment. Neither Section 924(a)(2) nor the ACCA contain any reference to the other.
In light of this juxtaposition, one could argue that while New Jersey law required a trial court to impose a base sentence and then to extend it after concluding that the defendant had acted with a “purpose to intimidate,” federal law requires no such thing. Instead, the argument would go, a district court faced with a defendant who has been convicted of violating the felon-in-possession statute needs only to determine whether Section 924(a)(2) or the ACCA provides the appropriate sentence. And if the court concludes that the defendant “has three previous convictions ... for a violent felony,” the argument continues, it should bypass Section 924(a)(2) altogether and instead, sentence under the ACCA. Under this interpretation, the ACCA did not enhance Mack’s sentence, it simply determined his sentence, as though Section 924(a)(2) began with the words “except as otherwise provided in Section 924(e).”
However, this argument, which I acknowledge is not without force, appears foreclosed by Apprendi as well. In responding to New Jersey’s claim that the “purpose to intimidate” finding was merely a “sentencing factor” (that may be found by a judge) rather than an “element” (that must be found by a jury), the Court emphasized that “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than authorized by the jury’s guilty verdict alone?” 120 S.Ct. at 2365. Under this standard, it does not matter whether the ACCA is drafted in such a way as to “by pass” Section 924(a)(2). The question is whether the District Court’s finding that Mack “ha[d] three previous convictions ... for a violent felony” exposed him “to a greater punishment than authorized by the jury’s guilty verdict alone.” Based on the jury’s guilty verdict alone, the longest sentence that Mack could have faced was ten years, but he was sentenced to serve over twenty years. As a result, the first Apprendi question cuts in Mack’s favor.6
*242The second difference between this case and Apprendi is likewise irrelevant to the determination whether the “three previous convictions ... for a violent felony” finding increased Mack’s sentence beyond the “prescribed statutory maximum.” In Ap-prendi, the Supreme Court reaffirmed that the Constitution allows a judge to increase a defendant’s sentence “beyond the pi’e-scribed statutory maximum” based on “the fact of a prior conviction.” 120 S.Ct. at 2362-63 (emphasis added). While this exception could not save the trial court’s finding in Apprendi’s case, which was based on the “fact” that he had acted with a “purpose to intimidate,” see id. at 2363, it might save the enhancement in this case, which was based on the fact that Mack “ha[d] three previous convictions ... for a violent felony.” The possibility, however, does nothing to change the fact that the “three previous convictions” finding enhanced Mack’s sentence beyond the “prescribed statutory maximum;” it simply raises the possibility that in this case the enhancement was constitutional. In other words, while this difference between Ap-prendi and this case may affect the outcome of the second-order Apprendi question, it is irrelevant to the resolution of the first.
In sum, I conclude that the District Court’s finding, pursuant to the ACCA, that Mack “ha[d] three previous convictions ... for a violent felony” increased his sentence beyond the “prescribed statutory maximum” as defined in Apprendi.
B.
If the foregoing is true, Apprendi would require us to ask whether Mack’s sentence beyond the prescribed statutory maximum of 120 months was based on “the fact of a prior conviction.” As noted above, Mack’s enhanced sentence was based on two findings made by the District Court: (1) that he was an “armed career criminal,” and (2) that he had “possessed [a] firearm ... in connection with a crime of violence.”
The first of these findings is — at least for now, see supra note 5 — unquestionably valid under Apprendi. Under the Sentencing Guidelines, a person is an “armed career criminal” if he is “subject to an enhanced sentence under the provisions of [the ACCA].” U.S.S.G. § 4B1.4(a). The ACCA applies to any person convicted of violating the felon-in-possession statute who also “has three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The terms “violent felony” and “serious drug offense” are both defined in the statutory text, see id. § 924(e)(2)(A-B), and there has been no suggestion that the felonies for which Mack had previously been convicted do not fall within the statutory language.
Apprendi problems arise, however, when the District Court’s second finding is considered. For Mack to have been eligible for any sentence over 235 months, the District Court needed also to conclude that Mack had “possessed the firearm ... in connection with a crime of violence.” For while the ACCA statutorily authorizes a life sentence, see Custis, 511 U.S. at 487, 114 S.Ct. 1732, the Sentencing Guidelines operate to deprive a district court of the ability to impose it in a case such as Mack’s. Even with the crime of violence enhancement, the maximum sentence allowed by the Guidelines would have been 327 months. More precisely, with the ACCA enhancement, but without the crime of violence enhancement, Mack’s offense level would have been 33 and his criminal history rating would have been TV. See supra Part II. With these ratings, the maximum allowable sentence would have been 235 months. See U.S.S.G. § 5A. Even with the crime of violence enhancement (which raised Mack’s offense level to 34 and his criminal history rating to VI, *243see supra, Part II), the longest term to which the District Court could have sentenced him was 327 months. See U.S.S.G. § 5A.
In other words, with or without the two sentence enhancements, Mack could not have been sentenced to life in prison. This is because a defendant with a criminal history rating of IV (as Mack would have been without the crime of violence enhancement) is not eligible for a life sentence unless his or her offense level is at least 39. A defendant with a criminal history rating of VI (as Mack was after the crime of violence enhancement was applied) is not exposed to a potential life sentence unless his or her offense level is at least 37. See U.S.S.G. § 5A. There has been no suggestion that Mack’s offense level was even potentially as high as 37, much less 39.
In this case, the District Court found that Mack had unlawfully possessed the firearm in connection with the shooting of Wessels. While shooting another person would unquestionably qualify as a “crime of violence” under the Guidelines, see id. § 4B1.2(a)(l), Mack has never been charged, must less convicted by a jury, with shooting Wessels.7 As a result, this finding does not fall within the “fact of a prior conviction” exception to Apprendi’s general rule. If this logic is correct, then the maximum allowable sentence under Apprendi in this case was 235 months — 27 months less than the 262 month sentence ultimately imposed.
There is, so far as I can tell, but one possible response to this argument. One could acknowledge that the “prescribed statutory maximum” in this ease was 120 months and concede that Mack’s sentence of 262 months exceeded it, but nevertheless assert that the (unquestionably valid) statutory ACCA enhancement increased Mack’s potential sentence to life imprisonment. Because the District Court’s ultimate sentence of 262 months fell within the range that could have been authorized by the ACCA finding, the argument goes, the sentence does not violate Apprendi.
The question whether a valid sentence enhancement may operate to raise the potential as well as the actual sentence for a crime beyond the prescribed statutory maximum has not been squarely addressed by the 'Supreme Court. Neither of the Court’s recent cases involving the validity of sentence enhancements involved two separate enhancements. See Apprendi, 120 S.Ct. at 2351 (involving a single enhancement imposed if the presiding judge concluded that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity” (quoting N.J. Stat.Ann. § 2C:443(e))); Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (involving enhancement based on the fact that the non-citizen defendant’s earlier deportation had been “pursuant to” three earlier “convictions for aggravated felonies”).
I am not certain of the correct answer to this question. The Supreme Court has implied that the “fact of a prior conviction” exception should be narrowly construed. Cf. Apprendi, 120 S.Ct. at 2361 (noting that the exception, first enunciated in Al-mendarez-Torres, “represents at best an exceptional departure from ... historic practice”). Since the Supreme Court has not extended the Almendarez-Torres “exception” to cover increases in potential sentences, perhaps we should not do so either.
On the other hand, a fairly strong argument can be made that an ultimate sentence does not violate the Constitution so long as it is within the range of sentences authorized by a valid sentence enhance*244ment. The ACCA enhancement was valid under Apprendi, and the ACCA statutorily authorizes a life sentence. See Custis, 511 U.S. at 487, 114 S.Ct. 1732. But for the Sentencing Guidelines, it appears incontestable that the District Court would have had discretion, both statutorily and constitutionally, to sentence Mack to life imprisonment. Since the Sentencing Guidelines are themselves a constitutional mechanism for channeling the discretion that a sentencing court would otherwise enjoy, see Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), it can certainly be argued that the means by which the Guidelines channeled the District Court’s discretion in' this case do not implicate Apprendi. Put differently, the argument is that while perhaps Apprendi will come to mean that the enhancement for shooting Wessels violates the Constitution because it increased Mack’s maximum sentence under the Guidelines, even if it did not do so under the statute, it has not yet acquired that meaning.8
IV.
Having fleshed out the potential Ap-prendi problem in this case, the fact is that neither Mack nor his counsel explicitly raised the issue. While it is true that Apprendi had not been decided at the time of the filing of the briefs in this case, the argument was certainly available in light of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Dicta in Jones stated that
under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
Id. at 243 n. 6,119 S.Ct. 1215. Although we doubtless have the power to do so, “[w]e do not generally consider issues not raised by the parties.” Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807, 812 (3d Cir.1991) (en banc). In light of our reluctance to make binding decisions about issues not fully briefed and argued by the parties, and because I am not certain what the proper resolution of any Apprendi challenge to Mack’s sentence would be, I am content not to decide the issue. Accordingly, I am satisfied to join in the opinion and judgment of the Court.
I write separately with mixed emotions. In the wake of a retroactively unsettling Supreme Court pronouncement such as Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995),9 I have no desire for a repeat performance, or to contribute to the constitutional haze enveloping the appropriate relationship between judge and jury in our system of criminal justice. I do, however, believe that it has been useful to explore one aspect of the Apprendi problem with which the judiciary will doubtless soon be required to grapple. See supra note 1 (referencing recent Ap-prendi-hased filings in this Court).
. One writer has suggested that thirty-nine federal and twenty state criminal statutes may be unconstitutional under Apprendi. See Brooke A. Masters, High Court Ruling May Rewrite Sentencing, Wash. Post, July 23, 2000, at A1 (citing work of Professor Susan Klein); see generally Lewis J. Liman, Initial Thoughts on "Apprendi v. New Jersey,” N.Y.L.J., July 5, 2000, at 3 ("[T]he Court's decision has the potential to reopen the question of the constitutionality of the [sentencing] guidelines themselves....”); Tony Mauro & Jonathan Ringel, Court's Apprendi Hate Crimes Decision May Have Broad Impact on Sentencing, The Legal Intelligencer, June 28, 2000, at 4 (quoting John Steer, member of the United States Sentencing Commission, as stating that Apprendi will require the Commission to cull "through guidelines, almost guideline by guideline and offense by offense” to determine which portions comply with the decision). Apprendi most obviously implicates federal drug sentences because in such cases it is common for the judge, rather than the jury, to determine (and sentence based on) the quantity of drugs possessed. Over 41% of all federal convictions in fiscal year 1999 — more than 23,000 — were for drug offenses. See United States Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics, at 11. Federal courts have been sentencing defendants under the United States Sentencing Guidelines since November 1987, and hence they will no doubt soon be required to grapple with the question whether Apprendi applies retroactively on collateral review. The Clerk of this Court has informed me that this Court has received seventeen applications to file a second or successive habeas petition raising Apprendi issues during the past six weeks. I have also‘been told that Apprendi is cited in nine of the last thirteen such petitions that have been received, and that two of the four that do not directly cite Apprendi raise possible Apprendi-like issues.
. Section 4B 1.4(b)(3)(A) provides that "[t]he offense level for any armed career criminal” shall be no less than ”34, if the defendant used or possessed the firearm ... in connection with a crime of violence.”
. Section 4B 1.4(c)(2) states that ”[t]he criminal history category of an armed career criminal” shall be no less than "Category VI, if the defendant used or possessed the firearm ... in connection with a crime of violence.”
. The Sentencing Table contained in Section 5A gives a sentencing range of between 262 and 327 months for an offender with an offense level of 34 and a criminal history category of VI.
. It is not clear how long this will be the case. The "fact of a prior conviction” exception to Apprendi’s general rule is based on the Supreme Court’s 1998 decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350, which held that no constitutional violation occurs when a judge, rather than a jury, increases a criminal sentence beyond the otherwise prescribed statutory maximum based on the fact of prior convictions. While Apprendi incorporated the Almendarez-Torres holding into its own, see 120 S.Ct. at 2362-63 (“Other than the fact of 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.”) (emphasis added), the Apprendi majority went out of its way to cast the future viability of Almendarez-Torres into question. See id. at 2362 ("Even though it is arguable that Almendarez-Torres was incorrectly decid*239ed, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.”). Moreover, as commentators have noted, five sitting Justices are now on record as saying that Almendarez-Torres was wrongly decided. See Apprendi, 120 S.Ct. at 2379 (Thomas, J., concurring); Almendarez-Torres, 523 U.S. at 248, 118 S.Ct. 1219 (Scalia, J., joined by Stevens, Souter, and Ginsburg, dissenting). I do not suggest that we should predict that the Court will overturn Almendarez-Torres. Cf. State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ("Despite what Chief Judge Posner aptly described as Albrecht’s 'infirmities, [and] its increasingly wobbly, moth-eaten foundations,' there remains the question whether Albrecht deserves continuing respect under the doctrine of stare decisis. The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.’’) (emphasis added) (citation omitted). But the apprehension remains.
. This view is supported by the Ninth Circuit’s recent decision in United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). Nordby held "that the amount of drugs for which a defendant is sentenced under 21 U.S.C. § 841(b)(1) is” a fact that "increases the prescribed statutory maximum penalty to which a criminal defendant is exposed.” Id. at 1056. Nordby was convicted by manufacturing marijuana and possession of marijuana with an intent to distribute it under Section 841(a). The district court instructed the jury that "the government [was] not required to prove the amount or quantity of marijuana manufactured as long as the government proves beyond a reasonable doubt that the defendant manufactured a measurable or detectable amount of marijuana.” Id. Nordby was convicted by the jury and sentenced to life imprisonment by the court. See id. Section 841(a) defines the substantive offense without specifying a penalty. Section 841(b) enumerates numerous potential penalties for violating Section 841(a) which depend on the quantity of particular drugs manufactured or possessed. The Ninth Circuit rejected the argument that "Section 841 contains 'no prescribed statutory maximum/ and that therefore Apprendi does not apply to Nordby's case,” noting that “Apprendi makes clear that the 'prescribed statutory maximum' refers simply to the punishment to which the defendant is exposed solely under the facts found by the jury.” Id. at 1058-59. Because, absent a quantity finding, the maximum sentence that would have been authorized by Section 841(b) was five years in prison, the Ninth *242Circuit concluded that Norby’s life sentence exceeded the prescribed statutory maximum. See id. at 1058-59.
. The evidence that Mack shot Wessels was substantial but not overwhelming. See maj. op. at 228.
. I have acknowledged the plausibility of the argument that the ACCA technically did not increase but rather determined Mack's sentence because, in cases such as this one, a sentencing judge is not required to "pass through” Section 924(a)(1) in order to get to Section 924(e) (the ACCA). See supra III.A.2. But for the reasons explained above, collapsing the two provisions into one does not alter the fact that they are conceptually distinct steps in the Apprendi analysis.
. According to a Westlaw KeyCite performed August 30, 2000, Bailey has already been judicially cited 1893 times. It has also led to numerous re-sentencing proceedings. See, e.g., United States v. Goggins, 99 F.3d 116, 117 (3d Cir.1996) (involving a procedural posture where Bailey had been decided while the case was originally on appeal, which necessitated a remand for a new sentencing proceeding).