I respectfully dissent. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely and Booker changed our analysis.
First, although we used to consider only the statutory maximum for a sentence, we must now also consider the maximum under the Sentencing Guidelines when a defendant has been sentenced under a mandatory sentencing scheme. Further, we focus only on whether that fact increased the defendant’s sentence above the máxi-mum guidelines sentence. In other words, we focus only on the effect of a fact found by a judge on the defendant’s sentence. We no longer distinguish between facts which are elements of the crime and those that are traditionally considered sentencing factors.
Second, any facts that increase a defendant’s sentence above the maximum guidelines sentence must be proven (1) to a jury and (2) beyond a reasonable doubt. Here, the fact that increased Dare’s sentence was found by a judge and only by a preponderance of the evidence. Accordingly, I think this case should be remanded for a new sentencing hearing pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. June 1, 2005) (en banc).
*644I. Facts
Dare pleaded guilty to possession of a firearm during the commission of a drug-trafficking crime. Based on this fact alone, under the formerly-mandatory Sentencing Guidelines, the judge was required to sentence Dare to a maximum term of imprisonment of 5 years. 18 U.S.C. § 924(c)(1)(A)(i); U.S.S.G. § 2K2.4.
Once the judge found, by a preponderance of the evidence, that Dare discharged the firearm during the commission of a drug-trafficking crime, the judge was required to sentence Dare to a term of imprisonment of 10 years. 18 U.S.C. § 924(c)(1)(A)(iii); U.S.S.G. § 2K2.4(b).
Under the formerly-mandatory Sentencing Guidelines, Dare’s sentence went from a mandatory sentence of 5 years, to a mandatory sentence of 10 years based on a fact not charged in the indictment, admitted by the defendant, nor found by a jury beyond a reasonable doubt.
Two aspects of the trial judge’s ruling are important to note. First, this is one of those rare cases in which the trial judge made it clear that, but for the mandatory Sentencing Guidelines, he would have imposed a lesser sentence. Second, the judge did not find that Dare discharged the shotgun during the course of the offense beyond a reasonable doubt, only by a preponderance of the evidence.
Before imposing the 10-year sentence, the judge made the following statements:
I find it outrageous, just like his sons do, that this man, for 12 grams of marijuana, is going to spend ten years of his life in a federal prison of the United States. And at the very most, I could say, well, seven years is the best deal, and that borders on outrageous. But that’s what the law is.
And as you know, there’s an overreach, in my view, on prosecuting. It is not that the laws should not be enforced, but there has to be judgment and there has to be an issue of comity and consideration of what is warranted in terms of the proportionality of the wrong that’s done.
You have a man who’s lived in a community for 25 years, who is recognized as hard working, honest, reliable, who would give the shirt off of his back to anybody, who has given two sons to this country to defend this country, and we’re going to lock him up for ten years and that’s not outrageous? I think it is. So I will be a part of the outrage. Unwillingly. But I’m going to do it.
I’m going to make a finding of fact here. I’m going to find that the gun was brandished, I’m going to find that the gun was discharged. If the burden of proof is clear and convincing, then I think the government’s proof has failed in this case because of these factors. I think, in listening to that tape, that Mr. Dare clearly was intoxicated. He has testified, and it is uncontroverted, he did not even know that the gun was used until he appeared in front of Judge Erickson and was advised of that.
I’m going to make a finding that it was his ordinary practice when people were visiting with him that he would discharge the weapon, the shotgun, and that he had no intent, in terms of the actual discharge of the weapon, of intimidating or threatening either of the young men that were at his house.
I’m going to make a specific fact finding that neither of the young men felt that they were threatened by the discharge of the gun. It is true both of them were intimidated by the brandishing and the presence of the gun when he brought it out.
If the burden of proof is clear and convincing, then I think the government has *645failed to demonstrate that he actually intended the discharge of the gun to be part of the drug transaction.
If the evidence is by a preponderance of the evidence, as Mr. Van de Wetering has pointed out, then I believe that those facts that I just stated would indicate they wouldn’t be mitigated and, consequently, by a preponderance of the evidence, I am going to find that the gun was discharged as part of the transaction.
The thing that supports that is listening to that tape and the chronicity of the way the events transpired. I put on this stop watch when that tape started and it was a very short time from start to finish, it was less than five minutes that the whole thing came about. And if that’s what — that was all a single transaction from that perspective, at least by a preponderance of the evidence. Consequently, I’m going to find that there was a discharge in this case.
That doesn’t mitigate any comment I’ve made about how unfair this is, or the proportionality of the law or what is going on here.
Emphasis added.
II. Application of Harris after Blakely and Booker
Although these factual findings would have been sufficient under Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), they no longer suffice. In Harris, the defendant was convicted of possession of a firearm in connection with a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)© following a bench trial. At sentencing, the judge also found Harris guilty of brandishing the firearm, and sentenced him to 7 years under 18 U.S.C. § 924(c)(l)(A)(ii). On appeal, Harris argued his sentence was unconstitutional because the fact of brandishing, a firearm, which increased the mandatory minimum sentence from 5 to 7 years, was not charged in the indictment, nor proven beyond a reasonable doubt. The Court focused on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), to find that brandishing a weapon in connection with a drug-trafficking offense was a fact that was traditionally considered a sentencing enhancement, not an element of a separate crime, and therefore was not required to be charged in the indictment, nor found by a jury beyond a reasonable doubt because the 7-year mandatory minimum sentence for brandishing the firearm was still within the maximum sentence of life for possession alone. Id. at 553-57, 568-69, 122 S.Ct. 2406. The Court did not address the effect of the 5-year maximum sentence for possession of a firearm under the Sentencing Guidelines. Only the dissent acknowledged that the Sentencing Guidelines limited the maximum sentence for possession, but even the dissent did not focus on this factor. Id. at 578 n. 4, 122 S.Ct. 2406 (Thomas, J., dissenting).
Harris was decided after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Court focused only on whether a fact found by the judge, not the jury, increased the defendant’s sentence above the maximum penalty the defendant could have received under the applicable statute. Neither Apprendi nor Harris considered the validity of a sentence enhancement under the Sentencing Guidelines. Although Apprendi and Harris may well be good law if the sentence is claimed to exceed the statutory maximum, the two cases are inapposite where the claim is solely that the sentence is improperly enhanced under the Sentencing Guidelines, as discussed below. The Court expressly *646declined to consider the effect its ruling would have on the federal Sentencing Guidelines. See Apprendi, 530 U.S. at 497 n. 21, 120 S.Ct. 2348.
I agree that under Harris, Dare’s sentence does not violate the Constitution because his sentence of 10 years is still within the statutory range of 5 years to life for possession alone. See 18 U.S.C. § 924(c)(1)(A)®. But the reasoning of Harris was left to one side, and the focus to determine the constitutionality of the sentence changed, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Blakely was a direct appeal from a 90-month sentence imposed for a conviction of second degree kidnaping. Blakely pleaded guilty to kidnaping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months under Washington’s sentencing guidelines. The judge imposed a 90-month sentence, upon a finding that Blakely had acted with deliberate cruelty, a sentencing enhancement.
On appeal, the state argued the defendant’s 90-month sentence met the Appren-di standard because it was still within the statutory maximum of 10 years for kidnap-ing alone. The Supreme Court reversed, holding the relevant statutory maximum for Apprendi purposes is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S.Ct. at 2537 (italics in original). The Court held that since the Washington sentencing guidelines were mandatory, the sentencing judge could not sentence Blakely to more than 53 months without holding a sentencing hearing and obtaining jury findings on the aggravating factors, even though the statutory maximum was 10 years. Id. (holding that to determine whether the judge-found fact increased the defendant’s sentence above the statutory maximum, courts must look at “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ”). The Court did not apply the distinction in Harris between facts that are elements of the crime, and those that are traditionally considered sentencing enhancements.
Similarly, in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the jury found that Booker possessed at least 50 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Id. at 746, 125 S.Ct. 738. That statute provided a minimum sentence of 10 years in prison and a maximum sentence of life. 21 U.S.C. § 841(b)(1)(A)(iii). The federal Sentencing Guidelines, however, prescribed a sentencing range of 210 to 262 months in prison. Id.
The judge found, by a preponderance of the evidence, that Booker possessed an additional 566 grams of crack cocaine. Id. Under the Sentencing Guidelines, this finding mandated a sentence of 360 months to life. The judge imposed a sentence of 360 months — still within the statutory maximum of a life sentence for possession with intent to distribute of just 50 grams or more as found by the jury, but well above the maximum of 262 months under the formerly-mandatory Sentencing Guidelines. Id. The Supreme Court held that this sentence violated Booker’s Sixth Amendment rights, and remanded the case for re-sentencing under the now-advisory Sentencing Guidelines. Id. at 746-56 (Stevens, J.).
Courts around the country have been grappling with similar questions. In United States v. Harris, 397 F.3d 404 (6th *647Cir.2005),5 the defendants were convicted of aiding and abetting in an attempted possession, with intent to distribute, of a mixture containing cocaine, and aiding and abetting the possession of a firearm in connection with a drug-trafficking crime. The statute provided a sentence of 5 years to life for the possession of a firearm in connection with a drug-trafficking crime. 18 U.S.C. § 924(c)(l)(A)(i). Under, the Sentencing Guidelines, however, the maximum sentence was 5 years. U.S.S.G. § 2K2.4(b). At sentencing, the judge found that one of the firearms used during the drug-trafficking crime qualified as a semiautomatic assault weapon, thus enhancing the defendants’ sentences from 5 years to 10 , years. 18 U.S.C. § 924(c)(1)(B)®; U.S.S.G. § 2K2.4(b). The court of appeals affirmed the convictions in part, but vacated the sentences and remanded, holding, inter alia, that the enhancement was not constitutional under Booker.
Although the firearm-type enhancement under 18 U.S.C. § 924(c)(1)(B)® is different from the enhancement for discharging a firearm under 18 U.S.C. § 924(c)(l)(A)(in) at issue hiere, the same principle applies. See also United States v. Groce, 398 F.3d 6.79, 682 n. 2 (4th Cir.2005) (stating that sentences pursuant to Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) are “problematic” after Booker).
Just recently, a district court' facing a similar problem, also found that, to the extent the cases conflict, Blakely and Booker have overruled Harris:
[T]he breadth of the holdings in Booker and Blakely have in fact overruled Harris. The Court has gone from holding that the Sixth Amendment is implicated in the determination of facts that increase a statutory maximum (Apprendi) to applying the Sixth Amendment to all facts “essential to the punishment” (Booker and Blakely). It has extended the application of the Sixth Amendment from statutory maximum penalties (Ap-prendi) to the mandatory “Guidelines” (Booker). And even if one does not characterize this group of holdings as overruling Harris, plainly the reasoning underlying them does overrule Harris.
United States v. Malouf, 2005 WL 1398624 at *9 (D.Mass. June 14, 2005) (Gertner, J.) (footnotes omitted).
Further, although a sentence of 10 years is the minimum sentence upon a finding that the defendant discharged the weapon during and in relation to a drug trafficking crime, here the finding that Dare discharged the weapon was insufficient.
Although I appreciate my colleagues’ unwillingness to depart from Harris until it is explicitly overruled by the Supreme Court, I read Blakely and Booker as limiting cases to the extent those cases directly conflict with Blakely and Booker. For instance, in United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Court held that the sections of the Sentencing Guidelines requiring a sentence enhancement where the judge finds that the .defendant committed perjury do not violate the privilege of the accused to testify on her own behalf. This issue was not involved in Booker. Nevertheless, because the parties raised the issue, the Court in Booker discussed Dunni-gan and concluded that:
Applying Blakely to the Guidelines would invalidate a sentence that relied on such an enhancement if the resulting *648sentence was outside the range authorized by the jury verdict. Nevertheless, there are many situations in which the district judge might find that the enhancement is warranted, yet still sentence the defendant within the range authorized by the jury. See post, at 774-776. (STEVENS, J., dissenting in part). Thus, while the reach of Dunnigan may be limited, we need not overrule it.
Booker, 125 S.Ct. at 753. The same principle holds true here. While Harris may not be overruled in its entirety, it is limited by Booker, and Dare’s sentence exceeds the Booker limit. See also United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir.1988); Utah-Nevada Co. v. De Lamar, 133 F. 113, 120 (9th Cir.1904) (“[T]he Supreme Court of the United States has since, as well as before, laid down the rules by which we must be guided; and, if there is a conflict between them, the later decisions must govern and control our action.”).
III. Findings by a Preponderance of the Evidence
The trial judge found that Dare discharged the weapon intentionally, and as part of a drug transaction, but only by a preponderance of the evidence. The trial judge specifically held that if the standard were clear and convincing (a lower standard than beyond a reasonable doubt) he would not find Dare so discharged the firearm. Blakely and Booker teach us not only that a defendant is entitled under the Sixth Amendment to have a jury find all facts which enhance his sentence above the statutory maximum, but also that the defendant is entitled to have those facts found beyond a reasonable doubt
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.
Blakely, 542 U.S.-, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348).
Because the judge found the prosecution did not prove Dare discharged the firearm by clear and convincing evidence, he necessarily found the prosecution did not prove Dare discharged the firearm beyond a reasonable doubt. “The intermediate standard of clear and convincing evidence lies between a preponderance of the evidence and proof beyond a reasonable doubt.” Kenyeres v. Ashcroft, 538 U.S. 1301, 1305, 123 S.Ct. 1386, 155 L.Ed.2d 301 (U.S.2003) (citation and internal quotation marks omitted).
It is understandable that the judge found it more likely than not that Dare discharged the shotgun into the air in an attempt to intimidate his visitors into not reporting him to the authorities. But it is just as understandable that the judge did not find this fact by clear and convincing evidence, let alone beyond a reasonable doubt, given that Dare was highly intoxicated, and had the peculiar custom of showing off by firing his shotgun when visitors came calling. In fact, shooting his shotgun was such a non-event to Dare that he didn’t even remember it happened until the Magistrate told him.
Accordingly, we should remand this case to the trial judge with instructions to impose a new sentence, under the now-discretionary Sentencing Guidelines based solely on his finding that Dare possessed the firearm, a crime that entails a statutory minimum sentence of five years, not ten. 18 U.S.C. § 924(c)(1)(A)®.
. Not to be confused with Harris v. United States, 536 U.S. 545, 565, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).