with whom REINHARDT and PAEZ, Circuit Judges, join, dissenting:
Because the majority, while purporting to follow the “basic principles of statutory construction,” Maj. op. at 1179, fails to do so, I dissent. My position that 21 U.S.C. § 841 is facially unconstitutional is fully set forth in the panel opinion. See United States v. Buckland, 259 F.3d 1157 (9th Cir.), reh’g en banc granted, 265 F.3d 1085 (9th Cir.2001). Rather than restate all of the reasons for my position, to which I continue to adhere, I emphasize only a few salient points.
The overarching principle of statutory construction is not to avoid finding a statute unconstitutional at all costs. Rather, as the majority acknowledges, “[wjhere Congress has made its intent clear, ‘we must give effect to that intent.’ ” Miller v. French, 530 U.S. 327, 341, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962)). Thus, although I agree that we should avoid *1199“constitutionally doubtful constructions” where fairly possible,
this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication; “[although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of the statute ...” or judicially rewriting it.
CFTC v. Schor, 478 U.S. 838, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (emendations in the original) (quoting Aptheker v. Sec’y of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (internal quotation marks and citation omitted)). In this case, congressional intent is clear, and the majority’s attempt to avoid it carries its opinion to the point of judicially rewriting § 841.
The Supreme Court’s decisions in Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), set forth the principles of statutory construction that should guide us in this ease. The majority nowhere explains why we should ignore the analyses in three recent High Court cases that directly address the very issue we face.
The question is whether the statute “treat[s ] facts that lead to an increase in the maximum sentence as a sentencing factor” and is therefore unconstitutional. Castillo, 530 U.S. at 124, 120 S.Ct. 2090. In making this determination, the Court, by example, shows us that our task is first to examine the statute’s “literal language” and its “overall structure.” Id. Like 18 U.S.C. § 924, the statute at issue in Castillo, § 841’s structure clearly differentiates between the elements of the offense and factors to be considered at sentencing. In Castillo, the Court had no trouble in finding that the structure of § 924 “clarifie[d] any ambiguity” regarding congressional intent because “[t]he first part of the opening sentence clearly and indisputably establishes the elements of the basic federal offense,” while the next three sentences “refer directly to sentencing.” Id. at 125, 120 S.Ct. 2090.
Similarly, § 841(a) “clearly and indisputably” establishes the elements of the offense, and § 841(b) refers directly to sentencing. This is why, as the majority acknowledges, prior to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), every circuit in the country treated drug quantity as a sentencing factor. See Maj. op. at 1178-79 & n. 2 (citing cases). Yet, the majority insists that § 841 is ambiguous because it does not specify that drug quantity is to be determined by the judge at sentencing.
The majority, in fact, twists logic by concluding that the statute’s silence somehow means that “the text of the statute is dispositive” in support of its position. Id. at 1180. The text of the statute is disposi-tive; it clearly sets forth elements in § 841(a) and sentencing considerations in § 841(b).1
The majority’s position rests on the fact that “[t]he statute does not specify who *1200shall determine drug quantity or identify the appropriate burden of proof for these determinations.” Id. at 1179. In such case, of course, accepted rules of statutory construction require the court to examine the statute’s legislative history in order to determine Congress’ intent in enacting the statute. See, e.g., Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991) (“‘Where, as here, the resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.’ ” (quoting Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984))). Yet, rather than following accepted principles of statutory construction and attempting to ascertain what Congress intended in light of this ambiguity, the majority goes on to construe this silence as a license for the court to legislate its own solution.
Contrary to the majority’s conclusion, it is untrue that “it has been the judiciary, not Congress, which allocated the responsibility for determining drug quantity under § 841 to the courts.” Maj. op. at 1181. The legislative history is clear. See, e.g., H.R.Rep. No. 101-681(1), at 110 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6514-15 (noting the need for judges to have “flexibility when fashioning a sentence” under § 841(b)); H.R.Rep. No. 91-1444 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4576 (describing the penalties section of § 841 and noting that, “[t]he foregoing sentencing procedures give maximum flexibility to judges, permitting them to tailor the period of imprisonment, as well as the fine, to the circumstances involved in the individual case”) (emphasis added); cf. United States v. Morgan, 835 F.2d 79, 81 (5th Cir.1987) (noting that legislative history supported the then-prevailing view that drug quantity was not an element of the offense in § 841). The government, in fact, conceded at oral argument that Congress intended drug quantity to be a sentencing factor to be determined by the judge by a preponderance of the evidence. And we, like all of the other circuits, had no difficulty in concluding that Congress intended that judges make the drug quantity finding. See United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000) (stating, shortly after Apprendi, that “Congress ... clearly intended that drug quantity be a sentencing factor, not an element of the crime under § 841,” and listing cases); see also, e.g., United States v. Jackson, 207 F.3d 910, 920 (7th Cir.) (stating, only a few months prior to Apprendi, that “[i]t is apparent that Congress intended the type and quantity of the drugs distributed by a defendant convicted under section 841(a) to be determined at sentencing”), judgment vacated and remanded for further consideration in light of Apprendi, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000); United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989) (“the quantity of the controlled substance is a sentencing issue”).
The majority gives us no clue on why it now concludes sub silentio that the prior reading of congressional intent (that judges were intended to make the drug quantity determination) by all courts was mistaken. What happened to the accepted rules of statutory construction, especially the cardinal rule of ascertaining legislative intent? Why does Apprendi strip our pri- or holdings of precedential value? See Maj. op. at 1181. Apprendi does not change the principles of statutory construction, nor does it change the congressional intent that is undeniable from the structure and legislative history of the statute. Now, because application of longstanding principles of statutory construction will invalidate an important federal statute, the majority conveniently jettisons those principles and fashions its own *1201makeshift solution, even though that solution clearly is contrary to congressional intent.
The majority finds the distinction between sentencing factors and elements to be “inappropriate” and “misleading,” terming it “conceptual pigeonholing.” Maj. op. at 1180. Yet, determining whether Congress intended a fact to be an element or a sentencing factor was precisely the Supreme Court’s approach in determining the constitutionality of the statutes at issue in Castillo, Jones, and Almendarez-Torres. See Castillo, 530 U.S. at 123-31, 120 S.Ct. 2090 (discussing whether Congress intended statutory references in 18 U.S.C. § 924 to firearm types to constitute elements of an offense or sentencing factors, and noting that treating the facts as sentencing factors “would give rise to significant constitutional questions”); Jones, 526 U.S. at 232, 119 S.Ct. 1215 (stating that “[mjuch turns on the determination that a fact is an element of an offense rather than a sentencing consideration,” and going on to determine congressional intent in enacting the statute); Almendarez-Torres, 523 U.S. at 226-35, 118 S.Ct. 1219 (where the statute did not specify whether a provision “define[d] a separate crime or simply authorize[d] an enhanced penalty,” the Court “look[ed] to the statute before us and ask[ed] what Congress intended”). In Ap-prendi, the Court did not reject its analy-ses in Jones and Castillo. The statute in Apprendi did specify that the fact at issue was to be determined by the judge at sentencing; § 841 does not. Rather than supporting the majority’s position, this difference requires that we follow the Court’s analysis in Castillo, Jones, and Almendarez-Torres, where, similar to § 841, none of the statutes at issue specified who was to find the fact at issue and by what standard.2 Where the Supreme Court was faced with the ambiguity we face in § 841, did the Court therefore ignore legislative history and construe the statute as it wished, regardless of congressional intent? Of course not, because that would violate basic tenets of statutory construction. Yet, that is exactly what the majority has done here.
Mysteriously, the majority finds support for its conclusion in United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948), a case in which the Court declined to do exactly what the majority does here. In Evans, the statute at issue indicated Congress’ intent to make concealing or harboring unauthorized aliens a crime, but the penalty for the offense was unclear. See id. at 485, 68 S.Ct. 634. The Court acknowledged that, “where Congress has exhibited clearly the purpose to proscribe conduct within its power to make criminal, ... every reasonable presumption attaches to the proscription to require the courts to make it effective in accord with the evident purpose.” Id. at 486, 68 S.Ct. 634. Nonetheless, the Court rejected the government’s request to decide for itself the penalty Congress would have imposed, reasoning that “there are limits beyond which we cannot go in finding what Congress has not put into so many words or in making certain what it has left undefined or too vague for reasonable assurance of its meaning.” Id.
By contrast, here, where Congress’ intent to have drug quantity decided by the judge at sentencing is clear from the statute’s structure and legislative history, as *1202the government has conceded, the majority-takes the statute’s silence as a license to superimpose on the statute a requirement contrary to clear congressional intent. See Maj. op. at 1182-83 (stating that drug quantity must now be submitted to a jury and proven beyond a reasonable doubt). Similar to Evans, where Congress failed numerous times to address the ambiguity in the statute at issue, during the many years that the courts universally interpreted § 841(b) as encompassing sentencing considerations to be determined by the judge by a preponderance of the evidence, Congress never enacted legislation to correct that perception. Cf. United States v. Kelly, 105 F.Supp.2d 1107, 1115 (S.D.Cal.2000) (noting that, “[djespite the pervasiveness of this conviction [that § 841(b) is intended by Congress to set forth sentencing factors] among the federal courts, Congress has never amended the statute to provide otherwise. The only rational interpretation of congressional idleness in the face of voluminous precedent that it has the power to set straight is to assume that Congress agrees.”).
Congress made its intent clear by the statute’s structure and legislative history. See Nordby, 225 F.3d at 1058 (“Congress ... clearly intended that drug quantity be a sentencing factor, not an element of the crime under § 841; the statute is not susceptible to a contrary interpretation.”). Even if its intent were unclear, to conclude that, in light of Apprendi, Congress would have intended drug quantity to be an element of the offense “would be to proceed in an essentially legislative manner for the definition and specification of the criminal acts.” Evans, 333 U.S. at 490-91, 68 S.Ct. 634.
This is a task outside the bounds of judicial interpretation. It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make. That task it can do with precision. We could do no more than make speculation law.
Id. at 495, 68 S.Ct. 634; United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812) (holding that it is “[t]he legislative authority of the Union [that] must ... make an act a crime”).
Ultimately, the solution of what a constitutional drug sentencing scheme should encompass is the prerogative of Congress. It is not the courts’ function to jerry-build a sentencing scheme that Congress might or might not have intended, had it foreseen the collision between Apprendi and § 841(b)(1)(A) & (B). See United States v. Jackson, 390 U.S. 570, 576-78, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (rejecting the government’s argument that 18 U.S.C. § 1201(a) authorized the convening of a special jury to decide whether to impose the death .penalty because there was not “the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hint[ed]” that that was Congress’ intent in enacting the statute); United States v. Vazquez, 271 F.3d 93, 113 (3d Cir.2001) (en banc) (Becker, C.J., concurring) (“It strains credulity, however, to assert that Congress intended for type and quantity to be treated as sentencing factors in some cases and as elements in others. I know of no statute written in such a manner, nor am I aware of any statutes construed this way.... Furthermore, ... we cannot assume that Congress might have adopted such an unusual approach simply to avoid an Apprendi violation.”).
Finally, while “felicitous unanimity among” the courts of appeals may be a laudable goal, “conformity for its own sake is neither necessary nor desirable for the courts of appeals, because differences in opinion have the effect of ventilating important legal questions and creating a background against which the Supreme *1203Court can ultimately resolve an issue for the country as a whole.” Walker v. O’Brien, 216 F.3d 626, 634 (7th Cir.), cert. denied sub nom. Hanks v. Finfrock, 531 U.S. 1029, 121 S.Ct. 606, 148 L.Ed.2d 518 (2000). Justices O’Connor and Breyer foresaw that the majority’s reasoning in Ap-prendi would render unconstitutional statutes such as § 841. See Apprendi, 530 U.S. at 544, 120 S.Ct. 2348 (O’Connor, J„ dissenting) (stating that the consequences of the majority’s rule “in terms of sentencing schemes invalidated by today’s decision will likely be severe”); id. at 550-51, 120 S.Ct. 2348 (recognizing that the majority’s reasoning “strongly suggests” that determinate-sentencing schemes are unconstitutional); id. at 565, 120 S.Ct. 2348 (Breyer, J., dissenting) (stating that “the majority’s rule creates serious uncertainty about the constitutionality of’ statutes such as § 841).
The majority has “end[ed] our status as an outlier,” Walker, 216 F.3d at 634, but at the price of ignoring congressional intent that every circuit has acknowledged to be clear and ignoring basic tenets of statutory construction recently applied by the Supreme Court in Castillo, Jones, and Almendarez-Torres. “It is one thing to fill a minor gap in a statute — to extrapolate from its general design to details that were inadvertently omitted. It is quite another thing to” construe the statute in a manner clearly contrary to congressional intent “for the sole purpose of rescuing a statute from a charge of unconstitutionality.” Jackson, 390 U.S. at 580, 88 S.Ct. 1209. “[Tjhere are limits beyond which we cannot go” in statutory construction. Evans, 333 U.S. at 486, 68 S.Ct. 634. Because the majority has clearly passed those limits, I respectfully dissent.
. Notwithstanding the majority’s reluctance to rely on the headings contained in the statute, " 'the title of a statute and the heading of a section' are 'tools available for the resolution of a doubt' about the meaning of a statute.” Almendarez-Torres, 523 U.S. at 234, 118 S.Ct. 1219 (quoting Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947)). Moreover, as in Castillo, § 841's structure is easily ascertainable even without the aid of statutory headings.
. Although Judge Hug, in his concurring and dissenting opinion, interprets Castillo, Jones, and Almendarez-Torres in the same way that I do, in applying that understanding to § 841, he, like the majority, completely ignores congressional intent. Instead, he attributes to Congress an intent which, although different from the intent ascribed to Congress by the majority, is equally, wholly unsupported by the legislative record — that Congress intended to define separate criminal offenses in enacting §§ 841(b)(1)(A) and 841(b)(1)(B).