dissenting.
At stake in this appeal is not merely a decision on an important question of law, but the right of a defendant to challenge his sentence for crimes for which he was not convicted by a jury. The majority concludes that the decision of the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided while Swinton’s pro se motion to vacate or correct his sentence was pending, had no retroactive effect on his amended motion presenting his Apprendi claim. I am constrained to disagree. Although the majority applies decisions of several other courts of appeals that have reached a similar conclusion, I believe that their decisions are flawed and inconsistent with the precedent of our court. They give inappropriate weight to the right to a jury trial and the beyond-a-reasonable-doubt standard as constitutional bulwarks of fairness and the presumption of innocence. I, therefore, respectfully dissent.
I.
According to the statutory scheme of 21 U.S.C. § 841 under which Swinton was *492convicted, a defendant guilty of distributing even a minimal amount of a controlled substance is subject to a maximum sentence of twenty years imprisonment. Under § 841(b)(1)(B) of the statute, a defendant guilty of distributing more than 500 grams of cocaine is subject to a maximum sentence of forty years. A defendant guilty of distributing 50 grams of cocaine base (crack), or more than 5 kilograms of cocaine, is subject to a maximum sentence of life imprisonment under § 841(b)(1)(A). Thus, the drug type and the quantity of the drug distribution can mean twenty or more additional years of lost liberty.
Prior to Apprendi, to convict under the enhanced-penalty provisions of § 841, once the existence of some quantity of some controlled substance is proven to the jury, the Government had to prove the precise drug type and quantity only before the sentencing judge and then only by a preponderance of the evidence. See United States v. Monk, 15 F.3d 25, 27 (2d Cir.1994). Apprendi held that consistent with the Sixth and Fourteenth1 Amendments of our Constitution, a defendant is entitled to a jury finding on each element of a crime that increases his or her maximum statutory sentence. In the case of § 841 prosecutions occurring after Apprendi, the Government unquestionably must prove the drug type and quantity beyond a reasonable doubt before a jury in order to obtain a correspondingly enhanced sentence. See United States v. Vazquez, 271 F.3d 93, 96 (3d Cir.2001) (en banc) (holding that post-Apprendi, drug quantity is an element of the offense to be proven to jury). The critical question here is whether this change ought to be applied retroactively to convictions such as Swinton’s, occurring before the rule was announced.2
By way of background I note the following facts. Although the issues of drug type and quantity were placed before the jury in Swinton’s trial, the jury instructions were vague and inconsistent as to the standard of proof required for these elements. At times, the judge told the jury that it had to find beyond a reasonable doubt that the drug was crack and that the amount was over 50 grams in order to impose a more serious sentence. However, at another point in the jury instructions, the judge stated, “It’s sufficient if the evidence is shown that he knew the substance was one of the drugs whose distribution Congress has made unlawful.” The jury was also told it could find the existence of the requisite quantum of drugs if the Government showed the accuracy of the alleged amount “with a reasonable degree of certainty.”
At sentencing, Swinton contested the sufficiency of the evidence as to drug type. The trial judge convened a hearing, at which witnesses were called, to determine whether the drug in question was crack. At this sentencing hearing, the Government asserted that its burden was a preponderance of the evidence. Although it was unclear what standard he applied, the judge found that the evidence “overwhelmingly” showed that the drug in question was crack.
II.
Deeply embedded in our constitutional jurisprudence is the proposition that a de*493fendant may not be punished for a crime unless every element thereof is proven to a jury beyond a reasonable doubt: “[T]he proscription of any deprivation of liberty without ‘due process of law,’ Arndt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Arndt. 6, [t]aken together, ... indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’” Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348 (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2810, 132 L.Ed.2d 444 (1995)) (alterations in original). Apprendi addressed the novel issue of whether, once a jury finds guilt of an underlying offense, additional facts that determine the defendant’s maximum statutory sentence can be left for the judge to decide by a preponderance of the evidence, or whether they too are elements of the crime to be determined by the jury by proof beyond a reasonable doubt. See Apprendi 530 U.S. at 500, 120 S.Ct. 2348 (Scalia, J., concurring).
The Supreme Court concluded that a factual determination made after a defendant’s conviction of an underlying offense that dictates maximum statutory sentence goes to “the degree of criminal culpability” for the offense and is therefore an element of the crime that must be proven beyond a reasonable doubt before a jury. The threat of heightened sentence is indistinguishable from the threat of conviction for a separate offense:
If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is put to proof of those circumstances-be deprived of [the constitutional] protections that have, until that point, unquestionably attached.
Apprendi, 530 U.S. at 484, 120 S.Ct. 2348. In some cases, many years of additional imprisonment hang on the determination of the enhanced sentencing factors.
The right to a jury trial and the beyond-a-reasonable-doubt standard of proof “provide concrete substance for the presumption of innocence, and ... reduce the risk of imposing ... deprivations erroneously.” Apprendi, 530 U.S. at 484, 120 S.Ct. 2348 (internal citations and quotations omitted). The protections extend to enhanced maximum penalties, just as surely as to an “underlying” offense, because a defendant should “never get more punishment than he bargained for when he did the crime.” Id. at 498, 120 S.Ct. 2348 (Scalia, J., concurring) (emphasis in original). Before the Court announced the Apprendi rule, then, defendants were subject to a constitutionally intolerable risk of being sentenced for a period of time in excess of the legislatively prescribed sentence.
Thus, Congress, by making a defendant’s liberty contingent on drug type and quantity in § 841 prosecutions, effectively mandated that these elements be proven to a jury, because our Constitution bars the deprivation of liberty on any other basis. See Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. (“[W]hen the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.”). Because our Constitution entrusts the jury to ascertain the truth of all criminal allegations and does not permit conviction based on anything less than a jury finding (unless there is a waiver of *494jury trial) of all relevant facts beyond a reasonable doubt, drug type and quantity must be submitted to the jury.
III.
As the majority correctly observes, the § 2255 retroactivity inquiry generally involves a preliminary determination of whether the new rule is substantive or procedural, because different retroactivity analyses apply depending on its categorization.3 In Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) the Supreme Court suggested that failure to retroactively apply substantive new rules, “inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under § 2255.” Id. at 346-47, 94 S.Ct. 2298 (1974) (internal quotations omitted). Unlike substantive new rules, which are essentially automatically retroactive, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988), set forth very narrow criteria under which a procedural rule ought to be given retroactive effect. The Court held that an exception to the general rule forbidding retroactivity would be a “watershed” new rule raising an issue of fundamental fairness that is “implicit in the concept of ordered liberty.” Id. at 307, 311, 109 S.Ct. 1060. The Court also noted that it could envision very few such new rules that had not yet come into existence. Id. at 313, 109 S.Ct. 1060. Unless a new procedural rule falls within this exception to the general rule, it “will not be applicable to those cases which have become final before the new rule[ ][is] announced.”4 Id. at 310, 109 S.Ct. 1060.
The threshold question before us then, is whether Apprendi is substantive or procedural. In Davis, the Court deemed substantive a new rule under which “[defendant’s] conviction and punishment are for an act that the law does not make criminal.” Davis, 417 U.S. at 346, 94 S.Ct. 2298. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) reiterated the paradigmatic “substantive” new rule: it held that Supreme Court decisions altering the “substantive” terms of a federal statute, i.e., which hold that a statute “does not reach certain conduct ... [,] necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal,” and were to be applied retroactively. Id. at 620, 118 S.Ct. 1604 (internal citations and quotations omitted). Procedural new rules are generally characterized by the introduction of novel mechanisms to improve fairness and the ascertainment of truth in criminal proceedings. See United States v. Woods, 986 F.2d 669, 678 (3d Cir.1993).
In United States v. Woods, our court also considered the question of retroactivity in a criminal adjudication arising out of a change in the law after the defendant’s conviction. The central issue there was the retroactivity of the Supreme Court’s Hughey decision, Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), which dealt with the imposition of the penalty of restitution based on alleged wrongdoing that was found by a judge and not a jury. The statute at issue in Hughey had been interpreted to allow for judge-decreed restitution on the basis of related credit card fraud crimes, once *495the defendant was indicted and convicted of a single credit card fraud offense under the statute. Hughey held that, as a matter of statutory construction, conviction of each instance of fraud was required before corresponding restitution could be imposed. 495 U.S. at 415-16, 110 S.Ct. 1979. The Woods court, in considering a motion under Rule 35 of the Rules of Criminal Procedure to correct an unlawful sentence, turned to the Supreme Court’s retroactivity jurisprudence developed under §§ 2254 and 2255 habeas corpus proceedings to determine Rule 35 retroactivity. Woods, 986 F.2d at 676.
Woods observed that the Hughey rule did not fit neatly into either the “substantive” or “procedural” categories as set forth by the Supreme Court: “In contrast to Davis ..., Hughey has in no way implied that Woods was convicted for acts that the ... statute did not make criminal.” Woods, 986 F.2d at 677. Therefore, because it did not render previously unlawful primary conduct lawful, Hughey was not substantive. Yet, our court noted,
Hughey’s holding also cannot readily be defined as a new rule of criminal procedure. In its retroactivity analysis the Court has treated as new rules of criminal procedure such developments as the application to the states of the Fourth Amendment exclusionary rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the prohibition on race-based peremptory challenges of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In our view, Hughey’s limitation on a district, court’s authority to order restitution bears little resemblance to what the Court has commonly characterized as a new criminal procedural rule for retroactivity purposes.
Woods, 986 F.2d at 677-678 (internal citations omitted). Unlike the Gideon rule, considered the paradigmatic watershed procedural rule, or these other procedural rules, there is nothing especially new about the procedure in Apprendi: “The new part of the Apprendi rule ... is the Supreme Court’s novel application of this long-recognized constitutional principle.” Rosario v. United States, 2001 WL 1006641, at *3 (S.D.N.Y.,2001) (emphasis in original).
We are confronted, then, with a rule requiring that all facts correlated to a defendant’s sentence be subject to the constitutional protections of our criminal factfinding procedure - the jury and the beyond-a-reasonable-doubt standard. And yet, much like the case of the Hu-ghey rule, the existing framework for determining the retroactivity of new rules is inadequate to address the significant deprivations our system has imposed on drug offenders in the absence of factfind-ing surety. Drug offenders convicted pri- or to Apprendi may have surrendered twenty or more years of their liberty on the basis of findings which have been deemed constitutionally inadequate to support a conviction. Although I recognize the limited circumstances set forth in Davis/Bousley and Teague for determining retroactivity, I do not believe that the Supreme Court intended to foreclose ret-roactivity in instances of such grave injustice as this.
Therefore, in accordance with Judge Becker’s rationale in Woods, I believe that the retroactivity of Swinton ought to be viewed in light of the considerations that undergird the retroactivity doctrines. The selectiveness with which retroactivity is applied reflects the underlying importance of finality of adjudication in our legal system. However, there are countervailing factors which sometimes warrant retroac-*496tivity. Davis “concluded that the injustice that would occur but for the retroactive application of the new circuit court decision was sufficiently egregious to warrant retroactivity.” Woods, at 676-77. Moreover, Bousley was concerned with the possibility of actual innocence of the defendant and the impermissibly large risk that the innocent will be convicted. Bousley, 623 U.S. at 620, 118 S.Ct. 1604. What underlies these cases is the fear of unjust punishment based on unreliable factfind-ing. Substantive new rules are most likely to give rise to such risk, but this principle should not be so narrowly circumscribed. Similarly, a new procedural rule may partly qualify under the Teague exception if it improves accuracy of the trial and sentence, and confidence in our judicial process. Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Thus we can divine basic principles from these decisions.
Here, therefore, as in Woods, “rather than risk applying what may be a wooden or unduly formulaic approach, we will analyze [ ] retroactivity with a view toward the common animating principles underlying the two retroactivity doctrines.” Woods, 986 F.2d at 678. In Woods, Judge Becker concluded that the two separate doctrinal standards that the Court has created “for the retroactive application of new rules of substantive and procedural law are not, at bottom, all that different. Rather, there are common animating principles underlying the two.” Id. at 678. Both doctrinal procedural and substantive standards, he wrote, reflect the principle that “new decisions will not be retroactively applied without substantial justification.” Id. In Woods, he set out to balance the interest in finality with the interest in avoiding unjust punishments. In making this determination, Judge Becker considered the risk of inaccurate factfinding and the severity of the punishment. Observing that the judge-rendered determination of guilt in restitution offenses provided some assurance of accuracy and, most importantly, that the right at stake was one of property and not liberty, Woods held that the interest in finality outweighed the risk of unjust conviction. Judge Becker therefore concluded that Hughey was not to be retroactively applied to the defendant in Woods. Id. at 671.
By contrast, in the instant case, mere money is not at stake; liberty is. This court noted, significantly, that “restitution cannot ... be considered the same as incarceration for retroactivity purposes. [A scenario involving incarceration] would present us with far stronger considerations in favor of retroactive relief. When liberty is not at stake, the reasons to apply a new decision retroactively, and hence to bend the usual rules of finality, are not necessarily lacking, but are more likely to be missing.” Id. at 680-81. Thus Woods, despite holding the restitution rule non-retroactive, adumbrates a different outcome in cases, such as Swinton’s, where a liberty interest is at stake. In the instant case, the prosecution has never presented proof to a jury and beyond a reasonable doubt that Swinton was guilty of distributing the type of drug and the quantity by which his sentence was enhanced. Imposing an additional twenty years of confinement without having the facts pertaining to sentencing enhancement submitted to a jury for fact finding beyond a reasonable doubt, as required by Apprendi, constitutes a miscarriage of justice that trumps the judicial preference for finality.
Swinton cites us to authority that Apprendi announced a substantive new rule in the recent decision of the Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The case held that Arizona’s sentencing scheme was incompatible with the Sixth *497Amendment because the scheme permitted a judge to make the factual determination that statutory aggravating factors existed warranting the death sentence. The question presented in Ring was whether that aggravating factor may be found by the judge, as Arizona law specified, or whether the Sixth Amendment’s jury trial guarantee, made applicable to the states by the Fourteenth Amendment, requires that the aggravating factor be entrusted to the jury. Id. at 588-89, 122 S.Ct. 2428. In deciding this question, the Ring court painstakingly reviewed its decision in Apprendi noting the fusion therein of the core crime with the hate crime enhancement. The court held that, as in Apprendi the death sentence violated the defendant’s right to a jury determination that he is guilty of every element of the crime with which he is charged. Id.
Ring, despite the similarity in issues and treatment to Apprendi provides little illumination on whether the Apprendi rule is substantive or procedural. However, significant to the case now before us, the Supreme Court in Ring rejected the proposition “that judicial authority over the finding of aggravating factors may be a better way to guarantee against the arbitrary imposition of the death penalty,” holding instead that
[t]he Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Entrusting to a judge the finding of facts necessary to support a death sentence might be an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.
Ring, 536 U.S. at 607, 122 S.Ct. 2428 (internal quotations and citations omitted). Although Ring involved capital punishment, the Court made clear that the same legal considerations would apply to a non-capital criminal case.
Thus, one does glean from Ring that the Court would consider the right to a jury trial a question of “fundamental fairness” - “implicit in the concept of ordered liberty.” See Teague, 489 U.S. at 314, 109 S.Ct. 1060. Although trying elements of a crime before a judge may have some efficiency benefits, and may not be an entirely inaccurate factfinding mechanism, the Ring court suggests that the right to a jury trial is, nonetheless, essential to popular confidence in the fairness of the system. Teag-ue suggests that such new rules, implicating “fundamental fairness,” are not barred from retroactive application.
Moreover, the Apprendi decision gives meaning to the venerable presumption of innocence in criminal proceedings. “An Apprendi claim in the context of § 841, ... asserts that while a defendant is guilty of possessing an unspecified quantity of a controlled substance, he is actually innocent of possessing the quantity necessary to be found guilty and sentenced under the more onerous provisions of 21 U.S.C. § 841(b).” United States v. Clark, 260 F.3d 382, 388 (5th Cir.2001) (R.M. Parker, J., dissenting). In this vein, the Supreme Court has portrayed the right to a finding of guilt beyond a reasonable doubt as follows:
The standard of proof beyond a reasonable doubt, “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual *498error in a criminal proceeding. 397 U.S. at 363, 90 S.Ct. at 1072. At the same time by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Id., at 372, 90 S.Ct. at 1076 (Harlan, J., concurring).
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Similarly, the Supreme Court has also recognized the centrality of the right to a trial by jury as a guardian against unjust conviction:
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.
Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
Therefore, even though Apprendi fits snugly into neither the substantive nor procedural analytic categories, it is distinguished by the fundamental character of the rights it confers. It both ensures that the presumption of innocence is given substance and that public confidence in the fairness of criminal proceedings is maintained, particularly where loss of liberty is at stake. Under these circumstances, Ap-prendi is the kind of rule that retroactivity doctrine was intended to capture in a case such as this.
IV.
“[F]ailing to apply Apprendi [in § 841 cases] retroactively ... create[s] the [ ] troubling possibility that a defendant has been convicted of conduct that constitutes a less serious offense than the one for which he was sentenced.” Coleman v. United States, 329 F.3d 77, 93 (2d Cir.2003) (B.D.Parker, J., concurring). Neither Woods nor our long-standing faith in the jury system and the beyond-a-reasonable-doubt standard will countenance such a troubling possibility. Thus, following the rationale of this court’s decision in Woods, Swinton’s situation entitles him to the retroactive application of Apprendi for the reasons set forth above. I, therefore, respectfully dissent. I would remand this case to the District Court for further proceedings consistent with this opinion.
. In the case of a federal criminal proceeding, the controlling principle is the Fifth Amendment due process clause, rather than the Fourteenth.
. The issue specified in the Certificate of Ap-pealability is strictly a legal one, whether Ap-prendi should be applied retroactively. It would, therefore, be a matter for the District Court, if Apprendi were deemed retroactive, to determine whether Swinton's sentence should be corrected or whether he should be granted a new trial.
. As the majority correctly holds, the instant case announces a new rule because it imposes upon the prosecution a new obligation to prove beyond a reasonable doubt to a jury that the defendant committed the enhancing factors that warranted additional sentencing.
. Teague also set forth another exception, involving rules which place certain primary conduct beyond the power of the legislature to proscribe. This exception has no relevance to this case.