dissenting:
Contrary to the majority’s conclusion, it is beyond question that the district court determined that Washington’s prior conviction was a crime of violence, based exclusively upon the facts presented in the *844indictment underlying that prior conviction. Neither that crime of violence determination nor the indictment facts exclusively relied upon by the district court are required to be found by a jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore Washington’s sentence is not infirm as a consequence of either the district court’s ultimate determination or its reliance upon the indictment’s facts. The district court’s imposition of sentence pursuant to a mandatory guidelines regime, in contrast, was error under United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, I would not notice that error here, because Washington’s substantial rights were not affected by that error, and because affirming Washington’s sentence would not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Accordingly, I dissent.
I.
As the majority concedes, the “fact of a prior conviction” is excepted from the Ap-prendi framework. Apprendi, 530 U.S. at 490,120 S.Ct. 2348 (“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.”). Apprendi’s prior conviction exception derives, at least in part, from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), wherein the Court held that prior convictions not included in Almendarez-Torres’ indictment could properly form the basis of an increase in his sentence. Id. at 243, 118 S.Ct. 1219 (“[T]he sentencing factor at issue here— recidivism — is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”). The Apprendi court explained that “[b]oth the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendare&-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Apprendi, 530 U.S. at 488, 120 S.Ct. 2348.
The district court’s enhancement of Washington’s sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington’s prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction. The district court explained that Application Note 1 to Section 4B1.2 instructs the sentencing court to examine the “conduct set forth ... that is expressly charged ... in the count in which the defendant was convicted.” J.A. 120 (emphasis added). Consistent with the court’s exclusive focus on the facts alleged in the indictment, the district court noted that it was unconstrained by United States v. Harrison, 58 F.3d 115 (4th Cir.1995) because the “Court there did not have need or occasion to consider the meaning or application of the phrase, ‘conduct expressly charged.’ ” J.A. at 121 (emphasis added). The district court next explained, consistent with circuit precedent holding that “in assessing whether a particular offense satisfies the ‘otherwise clause’ of [§ 4331.2(a) ], a sentencing court must confine its factual inquiry to those facts charged in the indictment,” United States v. Dickerson, 77 F.3d 774, 776 (4th Cir.1996), that it would “look to the indictment itself ... that is, the conduct expressly charged in the breaking and entering count of which the defendant was convicted.” J.A. at 122. It then pro*845ceeded to read into the record the relevant portions of that indictment:
That Gay S. Washington, Jr., ... did unlawfully and feloniously break and enter a building of the City of Hurricane, a Municipal corporation, occupied by the Midwestern Drug and Violent Crime Task Force, with intent the goods and property of said Midwestern Drug and Violent Crime Task Force ... then and there to steal, take, and carry away.
J.A. 80.
After setting forth the proper legal standard governing the application of section 4B1.2(a) and recounting the specific contents of the indictment, the district court concluded that Washington’s prior conviction was a crime of violence, reasoning as follows:
By virtue of the conduct expressly charged in that indictment, the Court concludes that the breaking and entering of a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that, by its nature, presents a serious potential risk of physical injury to another.
Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would contain both drugs and guns that are protected from theft; that, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed.
The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another.
J.A. 122-23 (emphasis added).
The majority concludes that the district court’s determination is not subject to Ap-prendi’s prior conviction exception because the district court used its “common experience” to find facts beyond the scope of Washington’s indictment that “echoed the extra-indictment information presented by the government,” ante at 841-42, and because Washington “contests ” the conclusion that his prior conviction “ ‘involve[d] conduct that presented a serious potential risk of physical injury to another.’ ” Ante at 843 (emphasis added). The record actually confirms that the district court did not rely upon any extra-indictment facts. And neither the fact that the court referenced “common experience” nor the fact that Washington contests the court’s crime of violence determination is sufficient to take the district court’s determination outside the scope of Apprendi’s exception.
The majority’s suggestion that the district court, sub silentio, relied on extra-indictment information about Washington’s crime is simply mistaken. The district court was aware of extra-indictment facts; the Government made certain representations pertaining to Washington’s prior conviction during the June 17, 2003 hearing, J.A. 60-61, and it also submitted, as an exhibit to its sentencing memorandum, a police report describing Washington’s pri- or conviction. J.A. 76-79. But the majority’s suggestion that the district court’s reference to its “common experience” merely masked its reliance on the Government’s representations and the police report is nowhere supported in the record. Indeed, at the conclusion of the June 17, 2003 hearing, where the Government made representations about Washington’s prior conviction, the district court asked the parties *846for a “review of the authorities to determine whether or not the Court simply looks to the crime as labeled or whether the Court looks to the crime as labeled coupled with the indictment or information, ... or whether the Court looks to that as well as the specific circumstances of the particular case in order to determine whether the otherwise clause of the sentencing guideline is met.” J.A. 65. And, as recounted above, at the August 29, 2003 hearing, where the district court imposed Washington’s sentence, it is plain that the district court was aware that the relevant guideline application note required it to look only to the conduct expressly charged in the indictment and that those facts contained in the indictment were the sole factual bases for the imposed enhancement. The extra-indictment information referenced by the majority was not even mentioned during this hearing and there is no evidence whatever in the record to suggest the district court relied on that information as the basis for the enhancement. *
Nor did the district court’s reference to “common experience” and the conclusions drawn therefrom entail any factual findings subject to the rule of Apprendi. Rather, such merely constituted the district court’s legal analysis of whether the indictment underlying Washington’s prior offense described a crime that was likely to present a serious risk of physical injury to another. The district court’s decisional process was no different than if it had determined that the carrying of a gun during the course of a drug transaction constituted a crime of violence because “common experience” informs that physical injury is a foreseeable consequence of carrying a gun during such a transaction. Surely we would not hold that the court’s determination in such context was an impermissible judicial finding of fact; no more so was the district court’s determination in the present ease impermissible. The district court made no findings as to the likelihood of violence in the specific context of the drug task force headquarters burglarized by Washington; it only drew the legal conclusion that violence is foreseeable when one burglarizes a building occupied by an organization such as a drug task force.
Because the district court’s conclusion rested solely on the court’s application of the definition in 4B1.2(a) to the facts expressly charged in the indictment, without any extra-indictment factual findings, under our circuit precedent the court’s application of the “otherwise” portion of the definition of crime of violence to those facts resulted in a legal — as opposed to factual — conclusion subject to de novo review on appeal. See United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002) (holding that “[t]he question” of whether a prior conviction is “an offense, which, ‘by its nature, presents a serious potential risk of physical injury to another’ ... is a question of law that we review de novo ”); United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996).
The majority also suggests that the “special circumstances identified by the Court in Almendarez-Torres are not present here,” ante at 843, because Washington contests the conclusion that his prior conviction was a crime of violence, whereas *847Almendarez-Torres admitted that his pri- or convictions were aggravated felonies. But just as Almendarez-Torres did not dispute the facts relevant to the increase in his sentence, so too has Washington admitted the facts relevant to his enhancement. And this is all that matters.
Washington’s prior conviction was an element, and thus included in the indictment, of the instant felon-in-possession offense, to which Washington pled guilty. J.A. 7; 46-49. Moreover, Washington does not dispute the accuracy of the facts contained in the indictment pertaining to his prior conviction, J.A. 110, and, as established above, it is clear that the district court did not rely on extra-indictment factual findings. Therefore, Washington only challenges the district court’s legal conclusion, namely whether breaking and entering a drug and violent crime task force “presents a serious risk of physical injury to another.” U.S.S.G. § 4B1.2(a). Both features identified by Apprendi as pertinent to the prior conviction exception exist in this case: Washington’s plea of guilty to the prior conviction was accompanied by “procedural safeguards,” and, in the instant proceedings, Washington has admitted the fact of his prior conviction, inclusive of the facts revealed in the indictment pertaining to that conviction. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. As a consequence, there was no Apprendi error whatsoever in this case.
This determination is not altered by the plurality’s conclusion in Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Contrary to the majority’s suggestion, that case does not establish that Apprendi’s prior conviction exception is per se inapplicable to disputes “about a prior conviction.” Id. at 1262. Rather, it merely establishes that such disputes must be resolved by reference to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 1263 (emphasis added). Here, consistent with this conclusion, the district court relied exclusively on the charging document pertaining to Washington’s prior conviction.
Because the district court’s application of the “otherwise” portion of section 4B 1.2(a) to the conduct charged in Washington’s prior indictment was correct, I would affirm its judgment.
II.
While the district court’s imposition of a sentence enhancement did not infringe Washington’s Sixth Amendment rights because the court did not enhance Washington’s sentence on the basis of judicially-found facts, the district court’s treatment of the federal sentencing guidelines as mandatory, and its imposition of Washington’s sentence under the guidelines so understood, was error. See United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Because Washington did not challenge the propriety of a mandatory sentencing guidelines regime in the district court, our review is under Federal Rule of Criminal Procedure 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). In order for Washington to prevail under Rule 52(b), “there must be an ‘error’ that is ‘plain’ and that ‘affects substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because “Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals,” we “should not exercise that discretion unless the error seriously affects the fair*848ness, integrity or public reputation of judicial proceedings.” Id.
Proper application of Rule 52(b) depends upon an accurate understanding of the error committed which, in turn, requires an accurate understanding of Booker.
In Booker, the Supreme Court held that judicial factfinding that results in an increase in an offender’s sentence under the “Guidelines as written” — that is, the guidelines as “mandatory and binding on all judges” — violates the Sixth Amendment. Booker, 125 S.Ct. at 750 (Stevens, J.). The Court’s remedy for this constitutional infirmity, however, was not the abolition of judicial factfinding; rather, the Court severed entirely “the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1),” id. at 756 (Breyer, J.). The effect of this severance was to render the Guidelines advisory in all cases, not merely those cases in which the trial court impermissi-bly found facts in violation of the Sixth Amendment. Indeed, the Court specifically rejected the Government’s proposal to treat the guidelines as mandatory in cases in which there was no constitutionally impermissible judicial factfinding, on the grounds of the Court’s conclusion that “Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others.” Id. at 768 (Breyer, J.); see also id. at 769 (Breyer, J.) (“[W]e must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.”).
Because of the constitutional violation identified in Booker and the remedy ordered by the Court, Booker errors can take two forms.
First, it is error if the sentencing court (1) within a mandatory guideline regime (2) found facts that resulted in an increase in the offender’s sentence beyond that which would have been supported by the jury’s findings. This error, which results in a violation of the Sixth Amendment, is the type of error that occurred in Booker’s case. As the Court explained, the district court’s error was that it “applied the Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury’s verdict.” Id. at 769 (Breyer, J.). Justice Breyer’s reference to the “Guidelines as written” confirms that the district court’s treatment of the Guidelines as mandatory was necessarily part of the error that occurred in Booker’s case. See Booker, 125 S.Ct. at 750 (“The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.”) (emphasis added). See also United States v. Gilchrist, 2005 WL 599745 (4th Cir. March 8, 2005) (Luttig, J. concurring,) (concluding that United States v. Hughes, 396 F.3d 374 (4th Cir.2005) fundamentally misidentified the foregoing Booker error “[b]y failing to recognize as error the district court’s imposition of sentence on the assumption that the Guidelines were mandatory”).
Second, because the Court held that the remedy for impermissible judicial factfind-ing in violation of the Sixth Amendment was the severance of the provision that made the Guidelines mandatory (rendering them in all cases advisory), it is also error if the sentencing court merely imposed a sentence under the Guidelines “as written,” that is, as mandatory. This second type of error, which does not entail a violation of the Sixth Amendment because the district court did not find facts imper-missibly, is the type of error that occurred in Washington’s (and Fanfan’s) case.
While it is possible for a sentencing court to have erred under Booker in either of these two respects, it must be understood that a court will not have erred in either respect provided that it sentenced *849the offender under the Guidelines as advisory only. And this even if the court increased the offender’s sentence based upon facts beyond those found by the jury.
The district court in this case committed the second type of Booker error, and this type only. It erred by applying the “Guidelines as written,” that is, as mandatory. And, even though Booker was decided after the district court imposed Washington’s sentence, that error is nonetheless deemed to have been “plain.” See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (finding that an error is plain “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal”).
In order to prevail under Rule 52(b), Washington bears the burden of establishing that the district court’s error affected his substantial rights. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 (“It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.”). An error affects substantial rights, when “the error actually affected the outcome of the proceedings.” United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998) (emphasis added). In the context of an error relating to the imposition of sentence, a defendant “must establish that [the imposed] sentence was longer than that to which he would otherwise be subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir.2001) (en banc). While the Supreme Court has variously articulated the requirement that a different result would have been likely or probable, see United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2342, 159 L.Ed.2d 157 (2004) (Scalia, J. concurring), it has recently suggested that an offender can establish prejudice with a “showing of a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” Id. at 2339 (internal quotations omitted); see also United States v. Antonakopoulos, 399 F.3d 68, 78, 2005 WL 407365, at *7-8 (1st Cir. 2005) (adopting the Dominguez Benitez “reasonable probability” standard for Booker claims).
As previously established, the district court erred when it imposed Washington’s sentence pursuant to a mandatory sentencing guidelines regime, i.e., when it failed to treat the Guidelines as advisory. Thus, whether Washington’s substantial rights were affected depends upon whether he can establish a reasonable probability that he would have received a lower sentence had the district court imposed that sentence pursuant to the advisory framework required by Booker.
Washington, however, has not claimed that he would have received a lower sentence under that framework and neither would the record support such a conclusion. Although the district court elected to sentence Washington at the bottom of the guideline range, it did not suggest that it was dissatisfied with this sentence. Indeed, the court noted that Washington had been “involved ... in a number of criminal matters.” J.A. 126. Thus, even assuming it were possible under a different set of facts, under these facts Washington cannot possibly establish that the error affected his substantial rights. Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (“Where the effect of an alleged error is ... uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights.”).
Even if Washington could establish that the error here affected his substantial rights, I would not, and we should not, notice that error. The Supreme Court has admonished that we should only notice “particularly egregious errors ... that seriously affect the fairness, integrity or public reputation of judicial proceedings.” *850United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). This is not such an error. Because there was no impermissible judicial factfinding, Washington’s Sixth Amendment rights have not been infringed, and as such he is merely a collateral beneficiary of the remedy imposed by the Court in Booker. Moreover, Washington’s sentence is in accordance with the Sentencing Guidelines and therefore presumptively reasonable.
The error here, in other words, is neither “particularly egregious” nor is it likely to undermine the “fairness, integrity or public reputation of judicial proceedings.” Therefore, consistent with Justice Breyer’s opinion for the Court in Booker, I would decline to notice the error here. Booker, 125 S.Ct. at 769 (“Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain error’ test.”).
III.
Because Washington’s sentence was imposed consistent with the requirements of the Sixth Amendment and because he is not entitled to relief under Rule 52(b), I would affirm Washington’s sentence. I therefore dissent.
The majority notes that the district court rested its "crime of violence” determination on "findings of fact [and conclusions of law] ... made by a preponderance of the evidence.” J.A. 165. But the district court’s reference to "findings of fact” merely begs the question of whether the district court found extra-indict-merit facts. And, the district court plainly answered this question in the negative when it explained that Washington's prior crime was a crime of violence “[b]y virtue of the conduct expressly charged in that indictment." J.A. 122.