dissenting.
Blakely does not conclusively require that we hold constitutionally invalid the application of the Federal Sentencing Guidelines (“Guidelines”) to Ameline. The United States Supreme Court’s prior opinions have upheld the constitutionality of the Guidelines. I agree with Part II.A of the Fifth Circuit’s opinion in United States v. Pineiro, 377 F.3d 464, 2004 WL 1543170 (5th Cir. July 12, 2004), analyzing the impact of Blakely and holding that the Guidelines are not affected by it. I also agree with the dissent in United States v. Booker, 375 F.3d 508, 515-21, 2004 WL 1535858, at *6-*ll (7th Cir. July 9, 2004) (Easterbrook, J., dissenting). While reasonable jurists may now disagree on the long-range impact of the reasoning of Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise.1
Before Blakely, the Supreme Court had held that federal courts are bound by the Guidelines and by their policy statements and commentary. See Stinson v. United *985States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (“The principle that the Guidelines Manual is binding on federal courts applies as well to policy statements.”). The Supreme Court’s prior opinions also have upheld the Guidelines against a constitutional challenge to congressional delegation of power to the judiciary through the Sentencing Commission. See, e.g., Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Court has further held that federal judges may find facts that require higher sentences under the Guidelines. See, e.g., United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam) (upholding an enhancement for possession of a gun in connection with a drug offense, even though the jury had acquitted the defendant on the firearms charge); Witte v. United States, 515 U.S. 389, 401-03, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (upholding a higher Guidelines sentence on a defendant convicted of possessing marijuana based on the judge’s finding that the offender also participated in an uncharged cocaine conspiracy). While in Mistretta, Watts, and Witte, the Supreme Court did not deal explicitly with a Sixth Amendment challenge, nothing the Court said in those cases cast any constitutional shadow on the Guidelines.
In Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), Justice Breyer wrote for a unanimous Supreme Court in a case considering the respective powers of judges and juries in the context of the Guidelines. The Supreme Court upheld a higher sentence imposed on a defendant for crack-related activities despite that the jury had convicted the defendant on an ambiguous instruction involving cocaine or crack. The Court held in no uncertain terms that “[t]he Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of ‘controlled substances’ for which a defendant should be held accountable — and then to impose a sentence that varies depending upon amount and kind.” Id. at 514, 118 S.Ct. 1475. The Court reasoned that the enhancement was constitutional because it did not push petitioner over the statutory limit for a cocaine-only conspiracy.2
Against all this, the majority argues that the Supreme Court’s precedents applying and enforcing the Guidelines count for nothing because none explicitly addresses the precise Sixth Amendment issue that was the focus of Blakely. There is some force in this argument. But it seems odd to hold that twenty years of a regime of sentencing reform, implemented by Congress and elaborated upon by the judiciary through the Sentencing Commission, is swept away by the reasoning of Blakely, a case that expressly says it does not address the Guidelines.3 Rather, it is prema*986ture to lament or to celebrate the demise of the Guidelines in any respect.4 Such a decision, with its drastic impact on the administration of criminal law and potentially on tens of thousands of cases, in my view should come from the Supreme Court, or from Congress,5 or not at all.
Because the Supreme Court has previously upheld the Sentencing Guidelines against varied constitutional challenges, we cannot properly overrule this course of precedent in anticipation of a new directive that the Court has not yet issued. This limit on our power is abundantly clear from prior Supreme Court precedent. See, e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (instructing lower courts to “leav[e] to this Court the prerogative of overruling its own decisions”) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)); State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). Our Circuit has followed this precedent. In Hoffman v. Arave, 236 F.3d 523, 542 (9th Cir.2001), we recognized and applied Agostini, maintaining that “it is not our place to engage in anticipatory overruling.” See also United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (“[Speculation does not permit us to ignore controlling Supreme Court authority.”). It would be better if we here followed the letter and spirit of the Supreme Court’s pronouncement in Agostini.
Although I understand those who would contend that the logic of the majority opinion in Blakely compels the result my colleagues reach, “[t]he life of the law has not been logic,” as Justice Holmes observed, “it has been experience.” Oliveh WeN-dell Holmes, The Common Law 1 (1881). Considering the experience of our federal court system with sentencing reform under the Guidelines for twenty years, the prior Supreme Court precedent friendly to the Guidelines, and the array of disruptive issues that will necessarily follow in Blakely ’s train if it is applied to the Guidelines,6 *987I conclude that the Supreme Court itself is the proper Court to decide if the Guidelines are constitutionally infirm in any fundamental way.7
I respectfully dissent.
. Though I disagree with the majority's analysis of the impact of Blakely, and believe the district court properly could apply the Guidelines in total, I would still vacate Ameline's sentence under a different theory: The district court erred in shifting from the government to Ameline the burden of proof for the facts in the Presentence Report about drug quantity. I agree with the majority's observation on this issue in its footnote 14.
. I find unpersuasive the majority's distinction between Edwards's challenge to judge-made determinations of drug types, and his implicit but still valid challenge to judge-made determinations that raised his sentence based on elements beyond those on which the jury had convicted him. My view that Edwards impliedly rejects the notion that the Guidelines contravene the Sixth Amendment is supported by the Fifth Circuit, see Pineiro, 377 F.3d 464, 471, 2004 WL 1543170, at **7-8, and by Judge Easterbrook in dissent, see Booker, 375 F.3d 508, 516, 2004 WL 1535858, at **6-7.
. In first Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and recently in Blakely, the Supreme Court explicitly said that it was not holding the Guidelines unconstitutional. Justice Scalia's majority opinion in Blakely, stated: "The Federal Guidelines are not before us, and we express no opinion on them.” -U.S.-, - n. 9, 124 S.Ct. 2531, 2538 n. 9, 159 L.Ed.2d 403. Given this disclaimer, the majority opinion in Blakely cannot be read as conclusive in its impact on the Guidelines. And while the dissenting opinions in Blakely *986characterized the majority holding as fatal to the Guidelines, dissents cannot by their nature determine the necessary impact of a majority holding. With the history of our criminal law process, federal sentencing policy since 1984, and the Supreme Court's prior precedents concerning the Guidelines informing our views, we should hesitate to bypass the presumption of constitutionality that must now be given the Guidelines.
. For a "blog” on the internet cataloguing in detail recent developments relating to Blakely, see "Sentencing Law and Policy” at http://sentencing.typepad.com, a website of Professor Douglas A. Berman of the Moritz College of Law at The Ohio State University.
. Congress can render moot the current constitutionality issues by legislating a different approach to sentencing in the light of Blakely.
. For a general overview of complexity involved in applying Blakely to the Guidelines, see the statements and testimony offered to the Senate Judiciary Committee’s July 13, 2004 hearing entitled, "Blakely v. Washington and the Future of the Federal Sentencing Guidelines,” at http://judiciary.senate. gov/hearing.cfm?id=1260. The Senate Judiciary Committee’s hearing opened with statements by Senator Orrin Hatch, its Chairman, and Senator Patrick Leahy, the Ranking Democratic Member of the Committee. Testimony followed, with written statements also deposited in the record. The written statements available on the website include those by William Mercer, U.S. Attorney for District of Montana and Chairman of the Attorney General’s Advisory Committee to the Senate Judiciary Committee; Judge William K. Sessions III and Commissioner John Steer, Vice Chairs of the Sentencing Commission; Judge Paul Cassell, U.S. District Judge for the District of Utah; Chief U.S. District Judge Lawrence Piersol for the District of South Dakota; Professor Frank Bowman of the Indiana University School of Law; Assistant Professor Rachel Barkow of the New York University School of Law; former U.S. Attorney Alan *987Vinegrad; and Ronald Weich, former Special Counsel to the U.S. Sentencing Commission. With the multitude of expert voices proliferating on this nascent topic, in my view it is prudent to await the Supreme Court's resolution of the issue, for that presents an opportunity where the Court, if it wishes, can offer more guidance on ancillary issues that may flow from Blakely if it is to be applied to the Guidelines.
. If the Guidelines are constitutionally invalid in whole or in part under Blakely’s reasoning, then I would have reservations whether my colleagues are correct in thinking any constitutional vice is severable from the Guidelines as a whole. For a discussion of this topic, see the Senate Judiciary Committee testimony of Professor Frank Bowman of the University of Indiana Law School, and District Judge Paul Cassell's opinion in United States v. Croxford, 324 F.Supp.2d 1230, 1245, 2004 WL 1521560, at *12 (D.Utah July 7, 2004). The majority's view that the Guidelines cannot be constitutionally applied here to determine the level of criminal offense or to determine a particular enhancement raises questions of severability. Given that the application of Blakely to the Guidelines may require, among other things, changes to grand jury procedure, new forms of arraignments, revision of plea colloquy procedures, resolution of novel evidence and trial issues, whole new forms of jury instructions, possibly a bifurcated trial for sentencing, and decision on a host of other issues perhaps not yet identified, it may be questioned nonetheless whether Congress and the Sentencing Commission could have intended that the system they created should proceed as the majority would modify it. Because I would hold the Guidelines constitutional in the case before us, I need not reach this issue of severability, *988and, though acknowledging my misgivings, reserve judgment.