dissenting.
I respectfully dissent from the opinion of the majority. In treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance Grier’s sentence, the majority has abrogated the Fifth Amendment of the United States Constitution. The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), did not discuss the Fifth Amendment nor did it suggest that it had no role in sentencing: certainly the majority, as an inferior court, has no authority to abnegate one of the most important, if not the most important, of the rights that the Constitution assures criminal defendants.
The majority accomplishes this draconian move by holding that a defendant’s sentence can be enhanced by a District Court’s finding by a preponderance of the evidence that the defendant committed a criminal offense, a finding which, according to the majority, need not be submitted to a jury. The majority states: “We will affirm the District Court’s decision to apply the preponderance standard to all facts relevant to the Guidelines, including the finding that Grier committed aggravated assault under Pennsylvania law.” Maj. Typescript Op. at 570. This holding turns constitutional criminal procedure on its head.
I.
Central to our consideration of Grier’s appeal from the sentence imposed by the District Court following his guilty plea to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), is the effect of the recent trilogy of opinions of the United States Supreme Court on sentencing, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 *576(2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),10 but primarily Apprendi.
II.
The charge to which Grier pled guilty has a statutory maximum imprisonment term of 120 months, 18 U.S.C. § 924(a)(2), and no mandatory minimum. In the Pre-sentence Report (PSR), the Probation Officer calculated that the appropriate Guidelines range for Grier’s sentence (with a total offense level of 27 and a category V criminal history) was 120-150 months. This calculation was based on, inter alia, a four-level enhancement pursuant to U.S. S.G. § 2K2.1(b)(5) on the ground that Grier “used or possessed the firearm in connection with another felony offense (aggravated assault).” PSR, para. 14. The PSR stated that “[bjecause [Grier] pled guilty to a charge which has a maximum statutory penalty of 10 years ... the guideline term is 120 months pursuant to U.S.S.G. § 5Gl.l(a).” PSR, para. 50. The PSR also noted that without the four-level enhancement under § 2K2.1(b)(5) the appropriate sentencing range would be 84 to 105 months in prison.
At the sentencing hearing held February 25, 2005, which was after Booker was decided, the District Court, treating the Sentencing Guidelines as advisory, adopted the PSR which referred to the “other felony offense” as “aggravated assault.” In determining that Grier had committed that “other felony offense,” the District Court expressly used the preponderance of the evidence standard, made a downward departure under U.S.S.G. § 5K2.10 because the victim was partially responsible for the assault that was the basis for the enhancement, and sentenced Grier to 100 months in prison, with three years of supervised release. There can be no doubt, and the majority does not question, that the PSR conclusion, adopted by the District Court, played a role in Grier’s ultimate sentence.11
On appeal, Grier contends that the District Court committed two errors when it enhanced his sentence under § 2K2.1(b)(5). First, the District Court based the enhancement on facts found by a preponderance of the evidence, rather than beyond a reasonable doubt, in violation of Grier’s Fifth Amendment right to due process of law. Second, Grier argues that the record does not support a finding that he committed an aggravated assault, regardless of what standard of proof is used.12
III.
The question whether the Fifth Amendment right to due process requires that the fact that formed the basis for Grier’s four-level sentencing enhancement, i.e., that he committed a separate felony while using the firearm, be found beyond a rea*577sonable doubt, is a question of law and is therefore subject to plenary review.13 See United States v. Williams, 235 F.3d 858, 861 (3d Cir.2000). The District Court’s findings of facts are reviewed for clear error. United States v. Gibbs, 190 F.3d 188, 203 (3d Cir.1999). I consider first the changes in sentencing that have resulted from the Supreme Court’s recent trilogy in Apprendi, Blakely, and Booker and then analyze Grier’s due process rights in the context of this new sentencing regime.
A. The Impact of United States v. Booker
The holdings of the two Booker opinions are by now sufficiently reviewed that I need not dwell on them. The Booker opinion authored by Justice Stevens for a majority of five reaffirmed the holding in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt” and extended that rule to the Sentencing Guidelines. Booker, 543 U.S. at 244, 125 S.Ct. 738. In the opinion authored by Justice Breyer, the Court severed and excised both the provision of the Act that made the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), and the provision that set forth standards of review on appeal, 18 U.S.C. § 3742(e), Booker, 543 U.S. at 259-60, 125 S.Ct. 738, thereby transforming the Guidelines to advisory guidelines for the information and use of the district courts in whom discretion was now reinstated. The Court noted that district courts do not have complete discretion, as they must “consult those Guidelines and take them into account when sentencing.” 543 U.S. at 264, 125 S.Ct. 738.
In its interpretation of Booker, the majority states, “Once an individual has been convicted by a jury beyond a reasonable doubt of the predicate facts of illegal conduct, triggering a statutory maximum penalty, a court may impose any sentence on the individual up to that maximum. Judicial factfinding in the course of selecting a sentence within the permissible range does not implicate or offend the Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt.” Maj. Typescript Op. at 565. It later states, “The excision of these provisions [making the Guidelines mandatory and providing de novo review of departures] rendered the Guidelines advisory, freeing the trial judge to impose any sentence permitted under the United States Code regardless of the sentence recommended by the Guidelines.” Maj. Typescript Op. at 566 - 567.
Both are overstatements. A finding of guilt of an additional offense for purposes of increasing a defendant’s sentence definitely “implicates” the Fifth Amendment.
As the majority recognizes, the Booker Court’s holding is limited to an analysis of the defendant’s Sixth Amendment right to a jury trial. Booker offered no discussion of the Fifth Amendment, and to the extent that making the Guidelines advisory obviated the constitutional concerns raised in that case, it must be noted that there is a clear distinction to be drawn between Fifth and Sixth Amendment guarantees; the fact that rendering the Guidelines advisory remedied Sixth Amendment violations has little bearing on Fifth Amendment considerations. The issue before this court is whether, under the now-advisory Guide*578lines, the enhancement based on a judicial finding of fact (the commission of a separate felony) by the preponderance of evidence violated Grier’s Fifth Amendment rights or would violate the Fifth Amendment rights of any criminal defendant similarly situated.
B. Fifth Amendment Due Process Rights at Sentencing
A Fifth Amendment challenge, like the Fourteenth Amendment challenge at issue in Apprendi, involves a constitutional protection of “surpassing importance: the proscription of any deprivation of liberty without ‘due process of law.’ ” Apprendi 530 U.S. at 476, 120 S.Ct. 2348 (citation omitted). Although the Constitution does not explicitly require that a finding of guilt be made under a beyond-a-reasonable-doubt standard, the Supreme Court has explicitly so held. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
The entitlement to proof beyond a reasonable doubt is “as equally well-founded” as the right to a jury determination and is based in the common law. See id. at 361, 90 S.Ct. 1068 (noting that the “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times ... and is now accepted in the common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt”) (quotation marks and citation omitted).
The majority’s statement “[t]hat a defendant does not enjoy the right to a jury trial ineluctably means that he or she does not enjoy the right to proof beyond a reasonable doubt,” Maj. Typescript Op. at 564, is simply wrong. That standard is as equally applicable to a judge who sits as the trier of fact as to a jury. Indeed, in In re Winship, the Court held that a provision of the New York Family Court Act that authoi’ized a judge to determine by a preponderance of the evidence that a juvenile was delinquent — that is, guilty of a crime — violated the Fifth Amendment. Writing for the majority of the Supreme Court which reversed the decision of the New York Court of Appeals that had sustained the constitutionality of the Act, Justice Brennan noted that “the requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” 397 U.S. at 363, 90 S.Ct. 1068.
Justice Harlan, concurring, expounded on the difference between the preponderance of the evidence standard of proof and the beyond-a-reasonable-doubt standard. He explained that “even though the labels used for alternative standards of proof are vague and not a very sure guide to deci-sionmaking, the choice of the standard for a particular variety of adjudication does ... reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” Id. at 369-70, 90 S.Ct. 1068. He explained that “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Id. at 370, 90 S.Ct. 1068. He continued that although the two phrases are quantitatively imprecise, “they do communicate to the finder of fact different notions concerning the degree of eonfi-*579dence he is expected to have in the correctness of his factual conclusions.” Id.
He concluded that whereas a preponderance of the evidence standard seems particularly appropriate in civil cases between two parties for money damages where the factfinder need determine that the existence of a fact is more probable than its nonexistence, the criminal case stands on a different footing. Recognizing that there is always a margin of error in factfinding, he quoted from an earlier opinion in which Justice Brennan stated that “ ‘[w]here one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.’ ” Id. at 372, 90 S.Ct. 1068 (quoting Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)).
The Due Process Clause of the Fifth Amendment with its requirement of proof beyond a reasonable doubt is equally applicable to issues in sentencing when the underlying sentencing determination is dependent upon commission of an offense and requires a finding of guilt or innocence. In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court vacated a sentence imposed upon a criminal defendant who was found guilty of violating the federal carjacking statute, 18 U.S.C. § 2119. Section 2119 makes carjacking a crime, and then in three subsections sets forth what the Court held were three distinct offenses with three maximum penalties. See § 2119; Jones, 526 U.S. at 229, 119 S.Ct. 1215. Subsection 1 provides that the penalty for carjacking is a fine or imprisonment of not more than 15 years or both; Subsection 2 provides that for carjacking if serious bodily injury results, the penalty is a fine or imprisonment of not more than 25 years or both; and Subsection 3 provides that if death results, the penalty is a fine or imprisonment for any number of years up to life or both. The district court in Jones instructed the jury on carjacking, but did not instruct on serious bodily injury, nor was that pled in the indictment. Nonetheless, the district court sentenced Jones to 25 years on the carjacking, finding by a preponderance of the evidence that there was serious bodily injury.
When the case reached the Supreme Court, it rejected the Government’s argument that the fact of serious bodily harm was merely a sentencing factor and instead construed § 2119 “as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Id. at 252, 119 S.Ct. 1215. The Court found that permitting the judge to make findings regarding serious bodily harm to the victim by a preponderance of the evidence thereby increasing the sentencing range for that crime would present a serious due process issue. See id. at 243, 119 S.Ct. 1215.
The majority states that Jones was a statutory interpretation case and suggests that its holding has no relevance to the issue before us. I suggest that the majority reread the text of section III of the Supreme Court’s opinion in Jones. In support of its decision to read the carjacking statute as treating the fact of bodily harm as an element of the crime rather than a mere enhancement, the Court discussed at some length the “ ‘grave and doubtful constitutional questions’ ” that would arise were it to interpret the statute otherwise. Id. at 239, 119 S.Ct. 1215 (quoting U.S. ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909)). After citing In *580re Winship, referred to above, the Court reviewed the holdings in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), focusing on the constitutional issues they presented. Jones, 526 U.S. at 240-42, 119 S.Ct. 1215. In a footnote, the Jones Court restated the principles that underlay its view that the carjacking statute, as construed by the Government, might violate the Constitution. It stated, inter alia: “The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.” Id. at 243 n. 6, 119 S.Ct. 1215 (emphasis added).
Further belying the majority’s disregard of the significance of Jones are the following statements in the Jones opinion:
The question might well be less serious than the constitutional doubt rule requires if the history bearing on the Framers’ understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history ... [Sjeveral studies demonstrate that on a general level the tension between jury powers and powers exclusively judicial would likely have been very much to the fore in the Framers’ conception of the jury right.
Id. at 244, 119 S.Ct. 1215.14
Jones, with its affirmation of the principle that due process protections are required for offense-defining elements, was followed by Apprendi, in which the Court distinguished between sentencing factors which the district court may find by a preponderance of the evidence and consider when exercising its discretion to sentence within a given range, and those sentencing determinations for which due process demands a greater degree of procedural protection. As to sentencing factors, the Court stated:
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion— taking into consideration various factors relating both to the offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual ease.
Apprendi, 530 U.S. at 481, 120 S.Ct. 2348. The Court contrasted the determinations of sentencing factors from the determinations of what are usually characterized as elements of the offense, to which greater due process protections apply. As the Court stated:
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 *581should not — at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached.
Id. at 484, 120 S.Ct. 2348.
The Court stated that “[s]ince Winship, we have made clear beyond peradventure that Winship'’s due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.’ ” Id. (quoting Al-mendarez-Torres v. United States, 523 U.S. 224, 251, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)). The Court then explained which facts are entitled to the due process protections. Justice Stevens, writing for the Apprendi majority, quoted from his concurring opinion in Jones, where he wrote, “ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ ” (quoting Jones, 526 U.S. at 252-53, 119 S.Ct. 1215 (Stevens, J., concurring)).
The holding of Jones that due process protections are required for offense defining elements as distinguished from sentencing factors was the precedent on which the Supreme Court’s decision in Apprendi was based. Apprendi pled guilty in state court to two counts of possession of a firearm for an unlawful purpose, and one count of unlawful possession of an antipersonnel bomb. Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348. The State reserved the right to seek a higher enhanced sentence on the ground that one count of firearms possession was committed with a biased purpose in violation of N.J. Stat. § 2C:44-3, which was punishable by imprisonment for between ten and twenty years. Id. at 470, 120 S.Ct. 2348. After a hearing, the state trial judge found by a preponderance of the evidence that Apprendi’s crime was motivated by racial bias in violation of the state statute and enhanced Apprendi’s sentence accordingly. Id. at 471, 120 S.Ct. 2348. The finding doubled the maximum range within which Apprendi could be sentenced.
Although there was a “full evidentiary hearing” in the New Jersey court on whether Apprendi acted with a biased purpose, that issue was not presented to the jury. The United States Supreme Court thus stated, “The question whether Ap-prendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.” Id. at 475-76, 120 S.Ct. 2348. The Court then quoted from the opinion in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), that due process requires, inter alia, that a criminal defendant be afforded “ ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Ap-prendi, 530 U.S. at 477, 120 S.Ct. 2348 (quoting Gaudin, 515 U.S. at 510, 115 S.Ct. 2310). The Court then noted that historically “[j]ust as the circumstance of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment.” Ap-prendi, 530 U.S. at 480, 120 S.Ct. 2348. It quoted from a well-known historical treatise:
Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the of-fence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have *582been committed under those circumstances, and must state the circumstances with certainty and precision.
Id. (quoting J. Archibold, Pleading & Evidence in Criminal Cases, 51 (15 ed. 1862)).
After that discussion, the Apprendi Court held that the New Jersey statutory scheme, allowing a judge to make findings by a preponderance of the evidence that the defendant’s “purpose” for unlawfully possessing the weapon was to intimidate his victim on the basis of race, was unconstitutional. Apprendi, 530 U.S. at 491-92, 120 S.Ct. 2348. (“In light of the constitutional rule ... and all of the cases supporting it, this practice cannot stand.”). The Hate Crime Enhancement statute requires a particular criminal mens rea, and the Court therefore rejected New Jersey’s argument that the required “motive” finding was simply a “traditional” sentencing factor. Id. at 493-94, 120 S.Ct. 2348. It continued, “[t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.” Id. at 495, 120 S.Ct. 2348. Distinguishing Almendarez-Torres (which held evidence of prior convictions admissible without further proof), the Court stated:
there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Id. at 496, 120 S.Ct. 2348 (emphasis added).
That statement alone is dispositive of this appeal. Grier’s sentence was enhanced based on the District Judge’s finding that he committed an aggravated assault despite the fact that no jury found that he had done so and no factfinder, not even the judge, so found beyond a reasonable doubt. The majority’s only response to the reasoning in Apprendi set forth above, is “[l]ike the right to a jury trial, the right to proof beyond a reasonable doubt attaches only when the facts at issue have the effect of increasing the maximum punishment to which the defendant is exposed. Apprendi, 530 U.S. at 489-94, 120 S.Ct. 2348. The advisory Guidelines do not have this effect.” Maj. Typescript Op. at 567. This, I respectfully state, is a non sequitur.
C. Fifth Amendment Due Process rights PosP-Apprendi
Grier contends that his Fifth Amendment due process rights, as delineated in Winship, Jones, and Apprendi, were violated when the judge found that he had committed a separate felony offense which exposed him to a sentence of 120 months. At argument, the Government contended that no Apprendi analysis is required in this case because Booker marked a return to judicial discretion in sentencing, and the ultimate sentence that Grier received was within the sentencing range for the crime to which he pled guilty; as noted previously, the range for his crime was 84-105 months and he received a sentence of 100 months. The Government also contended that because Booker did not explicitly require that findings of fact relevant to sentencing be made under the beyond-a-reasonable-doubt standard, findings of fact that enhance a sentence need only be made by a preponderance of the evidence. Lastly, the Government argued that the Supreme Court’s decision in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 *583L.Ed.2d 554 (1997), and this court’s own decision in United States v. Miller, 417 F.3d 358 (3d Cir.2005), held that Booker permits factual finding relevant to sentencing to be made by a preponderance of the evidence.
This court’s decision in United States v. Williams, 235 F.3d 858 (3d Cir.2000), arguably lends some support to the Government’s contention that Grier’s case does not warrant an Apprendi analysis. In that ease, this court held that Apprendi did not apply to a Guidelines sentence that was below the statutory maximum even though we recognized that the sentencing judge’s enhancement was based on facts not proved beyond a reasonable doubt. “[W]e hold that Apprendi does not apply to the increase in Williams’ sentence under the Sentencing Guidelines.” Id. at 862; see also United States v. Cepero, 224 F.3d 256, 267 n. 5 (3d Cir.2000) (en banc) (“Because application of the Sentencing Guidelines in this case does not implicate a fact that would increase the penalty of a crime beyond the statutory maximum, the teachings of [Apprendi Jare not relevant here.”).
The Williams court did not have the benefit of the Supreme Court’s decisions in Blakely and Booker and therefore its interpretation of Apprendi was too narrow. Blakely applied the Court’s earlier holding in Apprendi to a state’s indeterminate sentencing regime and held that any fact that increased the sentence must also be submitted to a jury, even though this sentence ivould fall ivithin the absolute maximum allowed by the statute. 542 U.S. at 303-04, 124 S.Ct. 2531. See note 2 supra. Because Blakely held that “the ‘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,” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original), any enhancement based on additional facts, even if the ultimate sentence is within the statutory range, raises an Apprendi issue.
Grier’s sentence was based in part on the PSR which concluded that Grier had committed an aggravated assault.15 Grier’s commission of an aggravated assault, vel non, is not simply a sentencing factor, i.e. a fact enhancing the crime of conviction, such as the vulnerability of the victim, the status of the victim, the defendant’s role in the offense. See U.S.S.G. § 3A.1 et seq. Rather, an aggravated assault constitutes a separate crime under relevant state law. See, e.g., 18 Pa. Cons.Stat. § 2702. The District Court’s acceptance of the PSR’s finding that Grier committed aggravated assault essentially penalized Grier for committing a felony without a jury or judge determination that he committed that crime beyond a reasonable doubt. As a result of this finding, his sentencing range was increased from 84-105 months to the statutory maximum of 120 months.
In Apprendi the Court stated:
The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life *584imprisonment. Mullaney, 421 U.S., at 700, 95 S.Ct. 1881. But it can hardly be said that the potential doubling of one’s sentence — from 10 years to 20 — has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as “a tail which wags the dog of the substantive offense.” McMillan, 477 U.S., at 88, 106 S.Ct. 2411.
530 U.S. at 495, 120 S.Ct. 2348.
Apprendi’s sentence was vacated because the sentencing judge in that ease found facts that constitute a separate crime by a preponderance of evidence and that finding increased the statutory maximum to which the defendant was exposed. Grier’s situation is thus comparable to Ap-prendi’s and the holding of the majority is directly contrary to the reasoning in Ap-prendi.
My view is consistent with that expressed in Justice Thomas’ partial dissent in Booker, where he noted that “[t]he commentary to § 6A1.3 states that ‘[t]he Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.’ The Cotort’s holding today [in Booker] corrects this mistaken belief. The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance of the evidence, of any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant.” 543 U.S. at 319 n. 6, 125 S.Ct. 738 (emphasis added); cf. United States v. Pimental, 367 F.Supp.2d 143, 153 (D.Mass.2005) (“Certain facts ... assume inordinate importance in the sentencing outcome. So long as they do, they should be tested by our highest standard of proof.”).
The Government contends that requiring proof beyond a reasonable doubt for sentencing enhancements based on facts constituting a separate crime is contrary to the Supreme Court’s precedent in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). Watts held that a sentencing judge could consider conduct underlying an acquitted charge. In Booker, Justice Stevens characterized Watts as a case that “presented a very narrow question regarding the interactions of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument.” Booker, 543 U.S. at 240 n. 4, 125 S.Ct. 738. He also noted that there was no contention in Watts “that the sentencing enhancement had exceeded the sentence authorized by the jury verdict[.]” Id. at 240, 125 S.Ct. 738. Because the key issues in Watts are different both from those addressed by the Court in Booker and from those Grier raises, I believe that Watts is inapposite.
According to the Government, requiring proof beyond a reasonable doubt of facts underlying a sentencing enhancement would contradict this court’s decision in Miller, 417 F.3d 358. In Miller, we considered judicial factfinding after the Supreme Court’s pronouncements in Booker. We observed that “[njothing in Booker ... necessarily calls into question the correctness of the District Court’s factual findings or procedural decisions at resentenc-ing. ... We merely note that the District Court is free to engage in precisely the same exercise in judicial fact finding as it did in February 2003, so long as such fact *585finding is consistent with Booker.” Id. at 362-63.
There are clear differences between the issue before us today and the issues faced by the Miller court. First, the phrase from Miller quoted above is dictum and therefore does not bind our decision here. Second, no Fifth Amendment Due Process claims had been asserted by the defendants in Miller and we did not have the opportunity to consider the arguments that Grier raises. Therefore, Miller is inapposite.
The cases cited by the majority as in accord with its decision do not in fact so hold. Many of them are cases where the issue was merely the amount of drugs, clearly a sentencing factor after the defendant was found guilty or pled to the underlying drug offense. See, e.g., United States v. Vaughn, 430 F.3d 518 (2d Cir.2005), cert. denied sub nom. Lindo v. United States, — U.S. -, 126 S.Ct. 1665, 164 L.Ed.2d 405 (2006); United States v. Morris, 429 F.3d 65 (4th Cir.2005); United States v. Magallanes, 408 F.3d 672 (10th Cir.), cert. denied, — U.S. -, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005); United States v. Duncan, 400 F.3d 1297 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 432, 163 L.Ed.2d 329. There was no mention of the Fifth Amendment in United States v. Pirani, 406 F.3d 543 (8th Cir.) (en banc), cert. denied, - U.S. -, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). The decision in United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005), was based on the Sixth Amendment, not the Fifth Amendment. None of the cases cited by the majority focus on the issue that is the basis for this dissent. In any event, if they did and were to hold otherwise, I would believe that they were incorrectly decided.
Accordingly, I respectfully dissent from the holding that the District Court may enhance Grier’s sentence based on its determination by a preponderance of the evidence, that Grier committed an aggravated assault that was not admitted nor submitted to a jury for determination by proof beyond a reasonable doubt.
D. The District Court’s Findings of Fact
Although I agree with the majority’s decision to remand this case to the District Court for resentencing, I respectfully dissent from the majority’s determination to allow the District Court to reconsider its determination that Grier committed an aggravated assault, as I believe that finding was clearly erroneous.
Even if the majority were convincing that the appropriate standard of proof is preponderance of the evidence the District Court erred in finding that Grier committed an aggravated assault. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999). At most, the facts on the record support a charge of simple assault by mutual consent, which, under Pennsylvania law is only punishable by up to one year in prison. See 18 Pa. Cons.Stat. §§ 2701(b)(1), 1104(3). Simple assault by mutual consent cannot support application of a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) because it does not meet the requirements for a “felony offense,” which is defined as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. 4.
The evidence at the sentencing hearing consisted only of the testimony from Juan Navarro, the brother of Grier’s girlfriend, with whom he engaged in the altercation that constituted the basis for the finding of aggravated assault. Navarro testified that he' “swung first,” i.e., that he was the first *586aggressor in the altercation. App. at 51; Tr. at 10, 1. 1. He testified that he and Grier then “started rolling around on the ground.” App. at 56. Navarro testified that the gun initially went off while they were struggling on the ground:
We started fighting. And the people surrounding us was [sic] saying that he had a gun and all that, and they tried to get the gun from him and all. And then a shot fired. Then we just separated. And then after that, he just pointed the gun at me, and then it went — I started — I kept going after him. And then people was just holding me back, and then he went from there where he was gonna go, and then stopped. The fight just stopped right there.
Id.
Navarro further testified on cross-examination that he did not know how the gun had gotten out of Grier’s pocket: “I don’t know if the gun fell out or whatever. People was telling me that he was taking the gun out. And from there, that’s when everybody tried to get the gun away from me.” App. at 57; Tr. at 16, 1. 3.
Navarro testified that after the two had separated, Grier pointed the gun at him, but Navarro “was trying to go back at him” when onlookers held him back. At that point, Grier “shot in the air.” App. at 58; Tr. at 17, 1. 18. After that, Navarro testified that they “both walked away. He went his way and I went my way.” App. at 59; Tr. at 18, 1.13.
Under Pennsylvania law, a person commits an aggravated assault when, inter alia, s/he “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” 18 Pa. Cons.Stat. § 2702(a)(4). “Simple assault by physical menace” is defined under Pennsylvania law as an “attempt by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa. Cons.
Stat. § 2701(a)(3), and includes pointing a gun at someone without firing it.
Self-defense is an affirmative defense, and forms a complete defense under Pennsylvania law “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other pex-son.” Commonwealth v. Gray, 867 A.2d 560, 568 (Pa.Super.Ct.2005) (internal quotation and citation omitted). A person is only entitled to use that force which is reasonably necessary to protect himself. See Commonwealth v. Harvey, 571 Pa. 533, 812 A.2d 1190, 1196 (2002). The use of deadly force is not permissible unless “the actor believes that such force is necessary to protect himself against death, sex’ious bodily injury, kidnapping or sexual intercourse compelled by force or threat.” 18 Pa. Cons.Stat. § 505(b)(2).
In this case, there is no evidence that Grier used deadly force because the evidence does not show that he ever fired the gun at Navarro. Rather, the evidence was that he pointed the gun at Navarro and then fired it in the air in order to end the fight. The first time the gun went off, Grier and Navarro were engaged in a struggle on the ground, while bystanders were also trying to wrestle the gun away from Grier. There is evidence that the gun discharged accidentally as a result of the struggle with Navarro and bystanders. Grier uttered no threats and appeared to use the gun only as a means of warding off a further attack and ending the struggle. The record contains ample evidence that Navarxu was the aggressor and that Grier was acting only in self-defense.
The majority contends:
It is arguable — and is ax-gued by Grier on appeal — that the record shows that the gun accidentally dropped from his pocket during the altercation, and that *587his subsequent actions were intended merely to dissuade Navarro from continuing the fight. An equally plausible explanation of the evidence, however, is that Grier intentionally pulled the gun from his clothing and, while the two men were on the ground, fired a shot in an attempt to harm or kill Navarro. He thereafter rose and aimed the gun once again at Navarro but, for whatever reason, decided to fire the weapon skyward and withdraw from the fight.
See Maj. Typescript Op. at 572 - 573.
By stating that it is “equally plausible” that Grier fired at Navarro as that the gun fell out of his pocket accidentally, the majority in effect concedes that the District Court erred in finding, even by a preponderance of the evidence, that Grier committed an aggravated assault. Preponderance requires more than plausibility.
The Pennsylvania statute defines aggravated assault in the alternative — the defendant must have attempted to or intentionally caused bodily injury with a deadly weapon. There is no suggestion that Grier actually injured Navarro with the gun. Therefore, the predicate for the District Court’s conclusion that Grier committed an aggravated assault by a preponderance of the evidence must have been that it was more likely than not that Grier attempted to cause bodily injury to Navarro with the gun. See 18 Pa. Cons.Stat. § 2702(a)(4). Yet the majority chooses to ignore the copious evidence that Navarro was the aggressor and that Grier was acting only in self-defense. When Grier stepped away from Navarro and fired a shot in the air he was seeking to end the fight — firing in the air is not a mysterious gesture as the majority chooses to portray it, but can fairly be described as a universally understood gesture of detente or warning. In fact, state charges filed against Grier after the incident were dismissed.
The District Court itself acknowledged Navarro’s responsibility for the altercation by departing downward two levels due to the victim’s partial responsibility under U.S.S.G. § 5K2.10. If the District Court believed that Navarro was responsible for the altercation, it should have given closer consideration to his claim of self-defense, which is a complete defense to aggravated assault under Pennsylvania law, and which, as Grier argued at sentencing, could also reduce the predicate offense to simple assault by mutual consent. See 18 Pa. Cons. Stat. § 2701(b)(1). The majority argues that the “mutual consent” exception does not exist for aggravated assault, but ignores the fact that under Pennsylvania law, simply pointing a gun at someone without firing it is not an aggravated assault, but a simple assault by physical menace, to which the mutual consent exception does apply. See Commonwealth v. Matthetus, 870 A.2d 924, 929 (Pa.Super.2005); 18 Pa. Cons.Stat. § 2701(a)(3). The majority also strains to avoid the effect of Grier’s recent brain surgery on the reasonableness of his self-defense claim. It may be that Grier reasonably believed he was at particular risk of incurring a life-threatening injury during a fistfight, but this is a question that should be examined by the District Court in the first instance.
The majority concludes that the District Court did not err in finding that Grier had committed an aggravated assault based on the barest evidence to support his charge in the record. But the majority ignores the clear error standard, which requires us to reverse a District Court’s finding of fact as clearly erroneous “ ‘when although there is evidence to support it, [we] are left with the definite and firm conviction that a mistake has been committed.’ ” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d *588539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).
Because I believe that the District Court’s enhancement of Grier’s sentence based on a finding that he committed aggravated assault is wholly unsupported by the record under any standard, I would remand with instructions to resentence without the enhancement.
IV.
For the foregoing reasons, I dissent both from the Court’s holding that the proper standard of proof for a sentencing enhancement based on a finding of guilt of an underlying offense is a preponderance of the evidence and from its remand that in effect permits the court to reconsider the issue of aggravated assault because it is unsupported by the evidence.
. U.S.S.G. § 2K2.1(b)(5) provides in relevant part that "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.”
. Although the sentence Grier actually received happened to fall within the statutory maximum and the Guideline range of 84 to 105 months that would have been applicable had there been no four-level enhancement, the majority's constitutional analysis does not depend on that fact, nor could it following tire decision in Blakely. See discussion at page 566 infra.
.Grier also contends that the District Court erred by failing to articulate its consideration of the factors set forth in 18 U.S.C. § 3553(a) in determining Grier’s sentence, making the sentence unreasonable. Because I distinguish between sentencing factors, the subject of § 3553, which are not at issue here, and offense defining factors which are the subject of this dissent, I need not discuss Grier’s contention.
. Grier also alleges that we may review his sentence because it is "unreasonable.” A sentence imposed in violation of Grier’s Fifth Amendment rights would be imposed in violation of the law, and therefore, unreasonable. United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006); 18 U.S.C. § 3742(a)(1).
. The "constitutional doubt rule" referred to in the Jones paragraph quoted above instructs: "the rule, repeatedly affirmed, that 'where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.'" Jones, 526 U.S. at 239, 119 S.Ct. 1215 (quoting Del. & Hudson, 213 U.S. at 408, 29 S.Ct. 527).
. The PSR stated that Grier committed an aggravated assault and Grier’s brief focuses on that finding. At the sentencing hearing the Government argued that Grier committed simple assault by physical menace, which constitutes a felony under Pennsylvania law and would support application of the four-level enhancement under U.S.S.G. § 2K2.1(b)(5). See 18 Pa. Cons.Stat. § 2701(a)(3). The District Court did not make a finding as to whether Grier had committed a simple assault by physical menace, but instead adopted the PSR. Accordingly, I do not consider the Government's argument on this point.