concurring in judgment.
Sean Grier is in prison in part for a crime for which he was never indicted, never tried, and never convicted. His sentence is based to some extent on a judicial finding, by a preponderance of the evidence, that he committed the crime of aggravated assault. This practice may be efficient. It may often reflect what “really” happened. But in my view it is not consistent with our Bill of Rights.14
*574I.
With its landmark ruling in Apprendi, the Supreme Court began to reinvigorate an important principle: “[D]ue 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.” 530 U.S. at 484, 120 S.Ct. 2348 (brackets and internal quotation marks omitted). What our Court does today, however, confirms Justice Stevens’s lament that the Supreme Court in Booker “effectively eliminated the very constitutional right Apprendi sought to vindicate.” 543 U.S. at 302, 125 S.Ct. 738 (Stevens, J., dissenting in part). In response, I believe that a less manipulate rule should be set — that constitutional protections apply not only to those facts that authorize the “statutory maximum” (as phrased by Apprendi), see 530 U.S. at 490, 120 S.Ct. 2348, but to every fact (save prior convictions) identified by the law itself as deserving of additional punishment, no matter what that fact may be called.15 Only in this way can the principles of Apprendi — followed through in Blakely, Booker, and, most recently, Cunningham 16 — be fully respected.
The concept is simple: if our society, through its law, deems a certain fact worth punishing (or warranting additional punishment), then the Constitution commands certain procedural protections attending the finding of that fact. Rather than following this principle of fundamental fairness, however, our law — through use of the Federal Sentencing Guidelines — criminalizes activity “on the cheap.” Despite Apprendi and its progeny, we continue to allow sentencing judges, once a jury has found beyond a reasonable doubt that a defendant has committed one crime, then to find him guilty by a preponderance of the evidence of other crimes for which he was not tried — or worse, tried and acquitted — and to sentence him as if he had been convicted of them as well. In effect, we have a shadow criminal code under which, for certain suspected offenses, a defendant receives few of the trial protections mandated by the Constitution.
Yet, much as my sympathies align with the principles explained in Judge Sloviter’s *575and Judge McKee’s superb dissents, I have concluded that I am bound by Supreme Court precedent to concur in the judgment of the majority in this case. To create a sentencing process that fully carries through on the promise of Apprendi and Blakely, I believe the Supreme Court would have to overrule, at least, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (allowing “sentencing factors” that enhance punishment to be proven by a preponderance of the evidence), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (reaffirming McMillan after Apprendi and again holding that judicial fact-finding by a preponderance of the evidence at sentencing passes constitutional muster).
Many, including Justice Breyer in Harris itself, have been unable to reconcile McMillan and Harris with the Supreme Court’s holding in Apprendi. See 536 U.S. at 569-70, 122 S.Ct. 2406 (Breyer, J., concurring).17 But “it is th[e] [Supreme] Court’s prerogative alone to overrule ... its own precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). This it has not yet done. For this reason alone, I join the result reached by the majority.18 I do not join its opinion because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing.
II.
Both the majority and dissenting opinions contend that the Supreme Court’s Ap-prendi line of cases, culminating at the federal level with Booker, dictates the answer to the question presented here. It does not.
Apprendi holds that, “[o]ther 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.” 530 U.S. at 490, 120 S.Ct. 2348. The majority correctly notes that Apprendi’s holding is rooted in . the jury right of the Sixth Amendment, not the right to due process guaranteed by the Fifth, Maj. Op., supra, at 565; Apprendi speaks only of the reasonable-doubt standard for'jury verdicts as a “companion” to the jury guarantee, see 530 U.S. at 478, 120 S.Ct. 2348.19 Moreover, nothing in Apprendi’s progeny — particularly Blakely and Booker — altered its Sixth Amendment basis. In Blakely, the Supreme Court provided further clarification of what was meant by Apprendi’s use of the term “stat*576utory maximum,” saying that it refers not to “the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04, 124 S.Ct. 2531 (first emphasis added). In Booker, Justice Stevens’s merits opinion simply took that definition and applied it to the Federal Sentencing Guidelines. 543 U.S. at 233, 125 S.Ct. 738 (“[T]here is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely].”). In short, because facts found by judges led to Guidelines sentences that had “the force and effect of laws” (i.e., they constituted statutory máxi-mums under Apprendi and Blakely), the Guidelines as- they stood were unconstitutional. Id. at 234, 125 S.Ct. 738.
Justice Breyer’s majority opinion in Booker remedied this constitutional infirmity not by having juries find Guidelines facts, but instead by unmaking the Guidelines as statutory máximums — “severing] and excis[ing]” those portions of the U.S.Code that made them binding on sentencing and appellate courts. See 18 U.S.C. §§ 3553(b)(1), 3742(e); Booker, 543 U.S. at 245, 258-65, 125 S.Ct. 738. This fix unmade the top of the Guidelines ranges as statutory máximums (which Justice Stevens, for the Court, had just held them to be), and turned the relevant focus to the maximum sentences set out in the U.S.Code. After Booker, then, the Sixth Amendment does not require Guidelines facts to be proven to a jury; instead, juries must find only those facts that increase the applicable maximum sentence as reflected in the U.S.Code.
Few, I suspect, disagree with this analysis. For our case, though, it is as unhelpful as it is obvious. The issue here is not what the Sixth Amendment requires, but rather what is consistent with due process as protected by the Fifth Amendment.20
A.
Though Apprendi speaks only of the burden of proof for a jury verdict that is required by the Fifth Amendment right to due process as a “companion” to the Sixth Amendment jury right, 530 U.S. at 478, 120 S.Ct. 2348, this is understandable: the Sixth Amendment is Apprendi’s principal focus. Predictably, no majority opinion in Blakely or Booker (which only expounded on Apprendi) even mentions the Fifth Amendment or due process. It is somewhat perplexing, then, that the majority here invokes “the reasoning of Apprendi ” and “the holding of Booker” — both Sixth Amendment cases — to explain its Fifth Amendment due process ruling in this case. Maj. Op., supra, at 565. Though every fact that must be found by a jury must also be found beyond a reasonable doubt, this does not mean that those facts not required to be found by a jury do not have to be found beyond a reasonable doubt. The Supreme Court demonstrated long ago that the Fifth Amendment sometimes requires application of the reasonable-doubt standard to facts not found by a jury. See In re Winship, 397 U.S. 358, 359-60, 365-68, 90 S.Ct. 1068, 25 L.Ed.2d *577368 (1970) (holding on due process grounds that findings in a juvenile criminal proceeding must be found beyond a reasonable doubt, even though not determined by a jury).
While I believe the majority’s holding will yield a result consistent with Supreme Court precedent in most cases, its reasoning, which intimates that Booker’s Sixth Amendment holding addresses and solves all due process issues relating to the burden of proof for Guidelines facts, is too sweeping. See Maj. Op., supra, at 566 (“The Due Process Clause ... affords no right to have [Guidelines facts] proved beyond a reasonable doubt.” (emphasis added)). More importantly, it is also inconsistent with McMillan, which, unlike Booker, provides the most complete answer to the issue presented here.
In McMillan, the Supreme Court upheld a Pennsylvania statute that mandated a minimum term of imprisonment upon a judicial finding, by a preponderance of the evidence, that the defendant “ ‘visibly possessed a firearm’ during the commission of the [underlying] offense.” 477 U.S. at 81, 106 S.Ct. 2411. The Court rejected the defendant’s contention that due process required the finding of a sentencing factor be made on a heightened standard of proof (either proof beyond a reasonable doubt or by clear and convincing evidence). Id. at 91, 106 S.Ct. 2411. Explaining its decision, the Court reasoned that “[sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all,” and saw “nothing in Pennsylvania’s scheme that would warrant constitutionalizing burdens of proof at sentencing.” Id. at 91-92, 106 S.Ct. 2411. It noted the undeniable constitutionality of a sentencing scheme where “the legislature had simply directed the court to consider visible possession in passing sentence.” Id. at 92, 106 S.Ct. 2411 (emphasis in original). Given this, there was no reason “why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance.” Id. McMillan, therefore, provides that facts relevant only to sentencing must be proven only by a preponderance of the evidence — if a particular standard is required at all.
In Apprendi, decided 14 years after McMillan, the Supreme Court addressed the viability of that holding: “The principal dissent accuses us of today ‘overruling McMillan.’ We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict....” 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Two years later, in Harris, the Court specifically took up the question of “whether McMillan stands after Apprendi” and reaffirmed it. 536 U.S. at 550, 568, 122 S.Ct. 2406. Necessarily, therefore, the Fifth Amendment (pursuant to McMillan) must protect the finding of some facts below the statutory maximum, even if the Sixth Amendment (pursuant to Apprendi) does not.
For the federal system (and this case), this is where Booker becomes relevant. Even after Apprendi, everyone assumed that the “statutory maximum” of which it spoke referred to the maximum sentence set out in the U.S.Code. See Dis. Op., infra, at 606 (McKee, J., dissenting) (citing United States v. Leahy, 438 F.3d 328, 345 & n. 16 (3d Cir.2006) (McKee, J., dissenting) (citing cases)). The logic of Blakely suggested that this assumption was not correct,21 and Justice Stevens’s merits opinion in Booker confirmed as much — the top of a mandatory Guidelines range constituted a statutory maximum, the deter-*578initiative facts of which must be found by a jury beyond a reasonable doubt. Just as soon as Justice Stevens’s merits opinion in Booker declared the Federal Sentencing Guidelines unconstitutional, however, Justice Breyer ushered them out of “Apprendi-land”22 to constitutional safety. They are now “advisory” and no longer constitute statutory máximums as defined in Apprendi and Blakely.23
Therefore, Justice Breyer’s opinion in Booker, which remedied the Guidelines’ Sixth Amendment infirmity, put federal sentencing with regard to the Fifth Amendment back where it was before Justice Stevens’s merits opinion in Booker was decided. And as explained above, Appren-di and Harris made clear that McMillan still sets out the Fifth Amendment rule applicable to the burden of proof for sentencing factors, which generally is a preponderance of the evidence. Technically, therefore, it is not Apprendi, Blakely, or Booker that solve the due process question here, as suggested by the majority. Instead, it is McMillan.24,
This technicality can be significant, however, because McMillan provided caveats *579to its general Fifth Amendment rule— caveats which the Apprendi line does not create in the Sixth Amendment context. See Cunningham, 127 S.Ct. at 868, 869, 878, 879 (referring to Apprendi’s “brightline rule”); Blakely, 542 U.S. at 308, 124 S.Ct. 2531 (contrasting Apprendi’s “brightline rule” with McMillan). And this is where the majority and I part company in this case, as the rule it announces does not allow for exception. See Maj. Op., supra, at 562 (“It is to these facts [‘elements’ of the ‘crime’], and these facts alone, that the right[ ] to ... proof beyond a reasonable doubt attach[es].” (emphasis added)). I echo Judge Sloviter on this point: “Can the majority really be suggesting that the Due Process Clause ... is never applicable to any sentencing issue?” Dis. Op., infra, *580at 593 (Sloviter, J., dissenting). If that is its intention, the majority is simply incorrect. Even more disturbing, the majority needlessly calls into question one of the few cases ever to apply McMillan and require a heightened burden of proof for sentencing factors. See Maj. Op., supra, at 568 n. 8 (citing United States v. Kikumura, 918 F.2d 1084, 1100 (3d Cir.1990) (holding that Guidelines facts having a disproportionate effect on the sentence must be proven by clear and convincing evidence)).
In McMillan the Supreme Court spent considerable time detailing exactly what about the Pennsylvania statute at issue there led to the conclusion that it did not violate due process. In effect, the discussion sets out various conditions that, if found to be otherwise, can lead to the conclusion that a sentencing factor must be proven to a higher evidentiary standard despite the general rule. First, the Pennsylvania statute in McMillan did not “discard[] the presumption of innocence” or “create ... [evidentiary] presumptions” that “relieve the prosecution of its burden of proving guilt.” McMillan, 477 U.S. at 87, 106 S.Ct. 2411. Second, the statute did not “alter[ ] the maximum penalty for the crime committed []or create[] a separate offense calling for a separate penalty.” Id. at 87-88, 106 S.Ct. 2411. Third, the statute and its structural context in Pennsylvania law did not appear to be an attempt by the State to “ ‘evade’ the commands of Winship” that elements of a crime be proven beyond a reasonable doubt. Id. at 89, 106 S.Ct. 2411. As an indication of this, the Court noted that the sentencing factor at issue — visible possession of a firearm — had not “historically been treated ‘in the Anglo-American legal tradition’ as requiring proof beyond a reasonable doubt.” Id. at 90, 106 S.Ct. 2411 (quoting Patterson v. New York, 432 U.S. 197, 226, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (Powell, J., dissenting)).
Lower courts eventually distilled these considerations into a single, metaphorical standard used in McMillan itself — “a tail which wags the dog.” 477 U.S. at 88, 106 S.Ct. 2411 (“The [Pennsylvania] statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.”). What this elusive standard means in practice is discussed shortly, but for present purposes what is important is that, just as much as its general holding, McMillan’s canine metaphor is still the Fifth Amendment’s mandate when it comes to the burden of proof for sentencing factors. See Blakely, 542 U.S. at 307-08, 124 S.Ct. 2531 (refusing to adopt McMillan’s Fifth Amendment standard for the Sixth Amendment, necessarily implying that it still governs Fifth Amendment burden-of-proof questions); Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348 (discussed above); Harris, 536 U.S. at 550, 568, 122 S.Ct. 2406 (discussed above).
Four years after McMillan, our Court was the first to apply the tail-that-wags-the-dog standard to require a heightened burden of proof for Guidelines facts. In United States v. Kikumura we held that “if the magnitude of the contemplated departure [from the Guidelines range] is sufficiently great that the sentencing hearing can fairly be characterized as a ‘tail which wags the dog of the substantive offense[,]’ ... the factfinding underlying that departure must be established at least by clear and convincing evidence.” 918 F.2d at 1100.25 In the ensuing years, we often *581relied on Kikumura when determining the appropriate standard of proof for Guidelines facts,26 as did courts across the country.27
Consequently, when the majority here says “there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts,” Maj. Op., supra, at 561, but then goes on to “question[]” an important part of our due process sentencing jurisprudence from those same twenty years, Maj. Op., supra, at 568 n. 8, there is a disconnect. Kiku-mura, like McMillan on which it is based, still controls burden-of-proof questions for Guidelines facts. See United States v. Ar-chuleta, 412 F.3d 1003, 1007-08 (8th Cir.2005) (“Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases.”). There is, therefore, no need to doubt the “statutory and constitutional underpinnings of [Kikumura],” Maj. Op., supra, at 568 n. 8, and I do not.28
*582It should be of no moment that the “usual in a Kikumura case” is for the sentencing court to rule “that the tail ha[s] not wagged the dog.” Reuter, 463 F.3d at 793. The few defendants who have benefited from the minimal due process protection that Kikumura (as subsequently interpreted) provides surely are grateful that courts have not yet abandoned entirely the Fifth Amendment at sentencing. I would not have us do so now.
B.
To repeat, I am sympathetic to the position advanced by Judge Sloviter and Judge McKee, who would require sentencing enhancements that themselves constitute separate crimes be proven beyond a reasonable doubt. The majority claims that this position is “novel.” Maj. Op., supra, at 566. And though I ultimately cannot join my dissenting colleagues, the principle behind their position reflects a concern that is anything but novel.
Contrary to the majority’s assertion that the separate-offense concept “appears nowhere in Supreme Court jurisprudence,” Maj. Op., supra, at 567, that Court in fact repeatedly has expressed concern over Government manipulation of the criminal justice system by circumventing the procedural protections of trial in order to achieve an identical result at sentencing. See, e.g., Blakely, 542 U.S. at 307 n. 11, 124 S.Ct. 2531 (“Another example of conversion from separate crime to sentence enhancement ... is the obstruetion-of-justice enhancement. Why perjury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt[,] ... is unclear.” (internal citations omitted)).29 Recall also that one of the several considerations McMillan identified as significant to its due process analysis was that the sentencing factor at issue there was not a fact that had “historically *583been treated in the Anglo-American tradition as requiring proof beyond a reasonable doubt.” 477 U.S. at 90, 106 S.Ct. 2411 (internal quotation marks omitted). In other words, unlike the enhancement at issue in this case, the sentencing factor in McMillan did not itself constitute a crime. Far from “novel,” therefore, the relevance of a sentencing factor also being a separate crime in determining the applicable burden of proof certainly exists in Supreme Court precedent.
For two reasons, however, I cannot join Judge Sloviter or Judge McKee in dissent. First, the rule propounded by the dissenting opinions — like the majority opinion — is inconsistent with McMillan, which I believe is controlling here. See supra Part II.A & n. 11. Second, that rule is incompatible with the Supreme Court’s ruling in United States v. Watts, 519 U.S. 148, 117 S.Ct. 683, 136 L.Ed.2d 554 (1997), which also remains good law despite unrelenting challenge. I will address each of these reasons in turn.
Precedent from this and other courts that have applied McMillan demonstrates that there are several relevant considerations in deciding what due process requires in the sentencing context, not simply whether a particular enhancement is also a separate crime. As already noted, the Supreme Court in McMillan cited no fewer than three considerations that were significant to its holding that a heightened standard was not required in that case, only one of which was the sentencing factor’s traditional treatment in criminal law. See McMillan, 477 U.S. at 87-90, 106 S.Ct. 2411.
In United States v. Mobley, 956 F.2d 450, 454-59 (3d Cir.1992), we addressed an argument similar to the one raised here, namely that U.S.S.G. § 2K2.1(b)(2) (now § 2K2.1(b)(4)) constituted a separate crime and, without proof of scienter, violated the Due Process Clause. We rejected this argument, noting the constitutional differences between trial and sentencing. We stated that the similarity between a sentencing enhancement and a separate statutory offense “says nothing about whether [a defendant’s right to] due process was violated. All it means is that under certain circumstances Congress and the [Sentencing] Commission have set the same penalties. This is not the situation of a tail wagging the dog; but rather, of two dogs having tails of equal length.” Id. at 457. As we explained, there is a “distinction among a sentence, sentence enhancement, and definition of an offense.” Id. Consequently, we held that even though a sentencing enhancement might also be a separate crime, that fact does not categorically preclude its use at sentencing, either absent a finding of scienter or, most relevant here, on a lower standard of proof.30
In United States v. Lombard, 72 F.3d 170 (1st Cir.1995), for example, the First Circuit Court of Appeals produced a model due process analysis under McMillan. There, the defendant had been acquitted of two state-law murder charges but then was prosecuted on a federal firearms offense. On conviction of the federal charge, the Government successfully enhanced the defendant’s sentence based on proof by a preponderance of the evidence that in fact he had committed the state-law murders with the firearm that was the subject of his federal conviction. The District Court sentenced the defendant to life in prison *584pursuant to the then-mandatory Guidelines.
The First Circuit reversed. Id. 172-74. Significantly, the court cited no single reason. As an initial matter, the base offense level in Lombard had been calculated, in accordance with the Guidelines, “as if [the defendant’s] offense of conviction had been murder.” Id. at 177. This, combined with no statutory maximum for the underlying offense, took the Guidelines range from 262-327 months in prison to mandatory life imprisonment — which the court characterized as “punishment on an entirely different order of severity.” Id. at 178. Moreover, not only did the enhancing conduct also constitute separate crimes, the defendant had already been acquitted of them. “Without impugning the principle that acquitted conduct may be considered in determining a defendant’s sentence,” the procedural history in Lombard made clear that the Government had intended from the beginning to use a conviction on the federal firearms charge to accomplish what the state-law murder charges had not. Id. at 178-80. The First Circuit then concluded,
Given the magnitude of the sentence “enhancement,” the seriousness of the “enhancing” conduct in relation to the offense of conviction, and the seemingly mandatory imposition of the life sentence, this summary process effectively overshadowed the firearms possession charge and raises serious questions as to the proper allocation of the procedural protections attendant to trial versus sentencing. We would be hard put to think of a better example of a case in which a sentence “enhancement” might be described as a “tail which wags the dog” of the defendant’s offense of conviction.
Id. at 180 (citations omitted).
Mobley’s and Lombard’s applications of McMillan demonstrate that the focus of a proper McMillan analysis is not only whether an enhancing fact constitutes a separate crime, but, more broadly, whether that fact “constitute[s] the primary conduct for which [the defendant] is being punished.” Mobley, 956 F.2d at 459 (emphasis added); see also Lombard, 72 F.3d at 178 (describing the enhancing facts — the murders — as having been “treated as the gravamen of the offense”). My dissenting colleagues’ suggested due process standard (focusing only on the “separate crime” concept) is, therefore, both too broad and too narrow: it would require a heightened burden of proof in more cases than Supreme Court precedent currently supports (i.e., all “separate crime” enhancements), but at the same time would fail to require it in certain deserving cases (i.e., where “the tail wags the dog,” in that the effect of the enhancement is too severe).31
*585Further increasing my discomfort with joining my colleagues in dissent is the Supreme Court’s holding in United States v. Watts. There, the Court reversed a panel of the Ninth Circuit Court of Appeals that had held it a violation of the Double Jeopardy Clause of the Fifth Amendment for sentencing courts to factor into a defendant’s sentence the conduct for which he had been acquitted. See Watts, 519 U.S. at 149, 117 S.Ct. 633. The Court relied partly on the differing burdens of proof during trial and sentencing to reject the Ninth Circuit’s contention that the acquittal had some preclusive effect, restating its holding in McMillan that “application of the preponderance standard at sentencing generally satisfies due process.” Id. at 155-56, 117 S.Ct. 633. Continuing the discussion, the Court said:
[A]n acquittal in a criminal case does not preclude the Government from relitigat-ing an issue when it is presented in a subsequent action governed by a lower standard of proof. The Guidelines state that it is appropriate that facts relevant to sentencing be proved by a preponderance of the evidence, and we have held that application of the preponderance standard at sentencing generally satisfies due process. We acknowledge a divergence of opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence. The cases before us today do not present such exceptional circumstances, and we therefore do not address that issue. We therefore hold that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.
Id. at 156-57, 117 S.Ct. 633 (footnote, citations, and internal quotation marks omitted) (citing, among other cases, Lombard, 72 F.3d at 186-87, and Kikumura, 918 F.2d at 1102). Though Watts does not address directly the due process question before us, this passage amply demonstrates its relevance. The issue in Watts involved the sentencing treatment of a separate offense, and I find it instructive that the Court did not express any special concern about that fact during the course of its McMillan and Kikumura discussion.
Since the Supreme Court decided Booker, several district courts have called into question the continuing viability of Watts.32 However, every court of appeals to have spoken on the question so far has held that Watts remains good law.33 Justice Ste*586vens’s merits opinion in Booker characterized Watts as having “presented a very-narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause,” Booker, 543 U.S. at 240 n. 4, 125 S.Ct. 738, and was able to avoid dealing with its holding. But as Judge McKee’s meticulous parsing of that case indicates, see Dis. Op., infra, Part II (McKee, J., dissenting), doing the same here is considerably harder.34
Therefore, in light of Watts and my prior discussion of McMillan, I reluctantly cannot accept my dissenting colleagues’ position as consistent with controlling Supreme Court precedent. According to that precedent, due process requires only that sentencing factors (as denominated by Congress), including those that also constitute separate crimes, be proven at sentencing by a preponderance of the evidence unless they become the “tail which wags the dog of the substantive offense.”
* * * * * *
In this case, nobody — not even Grier himself — contends that the “tail” of aggravated assault has wagged the “dog” of firearms possession.35 The District Court calculated the initial recommended Guidelines range at 84-105 months in prison. Though application of the aggravated-assault enhancement raised the applicable base offense level by four points, the District Court granted a departure of two levels because it determined that Grier was not wholly responsible for the circumstances that led to the assault (and thus the enhancement). This left an advisory range of 100-120 months, after which the District Court imposed a sentence of 100 months, which was within the initial, unenhanced advisory Guidelines range. The obvious conclusion is that Grier was not punished primarily for aggravated assault. See Mobley, 956 F.2d at 459. Finding by a preponderance of the evidence that Grier committed aggravated assault did not result in a due process violation.
Though someday, as I argue it should, the Constitution may be interpreted to require that all facts the law deems worthy of additional punishment be found by a jury beyond a reasonable doubt (or, at the least, that a judge do so by that same standard), binding Supreme Court precedent precludes advancing such a position now. See supra Part I. To do so would chase the shadow of Apprendi and Blakely *587while ignoring McMillan, which requires only that sentencing factors be proven by a preponderance of the evidence in most cases. Disturbingly, this is so even if those facts also constitute separate crimes, as here.
In basing my decision on McMillan and its “tail that wags the dog” metaphor, I have not ignored the criticism it has received as a rule of law — even from the Supreme Court that established it. See, e.g., Blakely, 542 U.S. at 307, 308, 124 S.Ct. 2531 (noting that “[t]he subjectivity of the standard is obvious” and describing it as “manipulable”). The difficulties in applying it, as Judge McKee cogently demonstrates, are undeniable. See Dis. Op., infra, Part III (McKee, J., dissenting). Its primary virtue, however, is that it properly frames the inquiry: “For what conduct is the defendant actually being sentenced?” Moreover — and more importantly — McMillan’s rule is still binding on the lower courts.
It may be that the Justices will one day reconsider McMillan and apply Appren-di’s bright-line rule to Fifth Amendment questions, just as the majority here has done. Our job, though, is not to place bets on the direction of constitutional doctrine and gamble with defendants’ constitutional rights. Even if it were, the majority cites nothing to indicate that the Supreme Court would adopt its position, which only diminishes a defendant’s constitutional protections. Indeed, a faithful reading of the entire Apprendi line of cases — including Blakely, Booker, and Cunningham— leads to the opposite conclusion. See Booker, 543 U.S. at 236-37, 125 S.Ct. 738 (noting that modern sentencing practices have “forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government”); see also Cunningham, at 870 (“Booker’s remedy for the Federal Guidelines ... is not a recipe for rendering our Sixth Amendment case law toothless.”). In this respect, Judge Sloviter and Judge McKee eventually may be proven correct. I hope that day comes, but it is not yet this one.
Before concluding, I pause to stress that the majority holds only that the reasonable-doubt standard is not required by the Fifth Amendment when finding Guidelines facts. The Court’s ruling applies only to the calculation of the advisory Guidelines range at step one of the sentencing process that we set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). Significantly, nothing about the majority’s ruling prevents a sentencing court from taking into account the strength of the evidence (or lack thereof) supporting a Guidelines enhancement when it considers the § 3553(a) factors at Gunter’s step three — especially an enhancement that also constitutes a separate crime.36 If it *588were otherwise, our holding today would not be tenable; for then the Guidelines would not be truly advisory, and Apprendi Blakely, and Justice Stevens’s merits opinion in Booker would come into full force. We must be ever careful in our reasonableness review, therefore, not to restrict a sentencing court’s discretion solely on the basis of the Guidelines, lest we recreate an unconstitutional sentencing scheme.37
On February 20, 2007, the Supreme Court will hear two cases addressing the Guidelines’ proper role in post-Booker criminal sentencing. See United States v. Rita, 177 Fed.Appx. 357 (4th Cir.2006), cert. granted, — U.S. —, 127 S.Ct. 551, 166 L.Ed.2d 406 (2006) (addressing a presumption of reasonableness for within-Guidelines sentences); United States v. Claiborne, 439 F.3d 479 (8th Cir.2006), cert. granted, — U.S. —, 127 S.Ct. 551, 166 L.Ed.2d 406 (2006) (No. 06-5618) (addressing the required justification for substantial Guidelines variances). I can only hope that with these cases and others — in addition to harmonizing the “discordant symphony”38 that has developed in the lower courts on post-Booker sentencing issues — the Supreme Court will continue the reexamination of criminal sentencing it only recently began. The principles that begat Apprendi and Blakely are worthy of continued adherence. It is only “a matter of simple justice.” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348.
. See United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ("[I]n some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial' — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment — has always outweighed the interest in concluding trials swiftly.”); Blakely v. Washington, 542 U.S. 296, 313, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ("[O]ur decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice.”); Apprendi v. New Jersey, 530 U.S. 466, 498, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Scalia, J., concurring) (“The founders of the American Republic were not prepared to leave [criminal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.”); United States v. Kandirakis, 441 F.Supp.2d 282, 302 (D.Mass.2006) (Young, J.) (“That our laws routinely require a defendant's sentence to be based upon what a judge believes an offender 'really' did, as opposed to the actual crime of which he was convicted by the jury, is nothing less than offensive — let alone unconstitutional.”); 4 William Blackstone, Commentaries on the Laws *574Of England 343-44 (1769) ("[HJowever convenient ['arbitrary methods of trial’] may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it again be remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters. ...”).
. See United States v. Reese, 92 U.S. 214, 232, 23 L.Ed. 563 (1875) (Clifford, J., concurring) ("[T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted."); Kandirakis, 441 F.Supp.2d at 303 (Young, J.) ("If the law identifies a fact that warrants deprivation of a defendant’s liberty or an increase in that deprivation, such fact must be proven to a jury beyond a reasonable doubt.”); Mark D. Knoll & Richard G. Singer, Searching for the “Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania, 22 Seattle U.L.Rev. 1057, 1062-67 (1999) ("The general rule that every fact which constitutes an aggravation of the offense had to be alleged and proved to a jury beyond a reasonable doubt is reflected in numerous state court opinions and early English cases, as well as in early federal cases.” (footnotes omitted) (citing 2 Sir Matthew Hale, Historia Placitorum Coronae (1736))); Hon. Boyce F. Martin, Jr., The Cornerstone Has No Foundation: Relevant Conduct in Sentencing and the Requirements of Due Process, 3 Seton Hall Const. L.J. 25, 30-31 (1993) ("Once Congress creates a sentencing system which eliminates discretion and requires specific findings of ‘actual criminal conduct,' it creates positive law which must abide by the Due Process Clause.”).
. Cunningham v. California, 549 U.S. —, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).
.The majority here finds much support in Harris when reasoning that the Apprendi line of cases dictates the outcome in this case. Significantly, however, all of the majority's citations to Harris are from a section of that opinion that did not have the support of a majority of the Justices. Justice Breyer, Harris’s fifth vote, did not believe that the holding of Harris was consistent with Apprendi; he voted with the majority only because he did not agree with Apprendi. See Harris, 536 U.S. at 569-70, 122 S.Ct. 2406 (Breyer, J., concurring). Given that Apprendi has been repeatedly reaffirmed since Harris, thus strengthening its stare decisis effect, the majority here must surely recognize the danger in relying on Harris for support.
. I also join Parts II.B and II.C of the majority opinion.
. See also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (" ‘[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.’ " (emphasis added, third alteration in original) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J„ and Scalia, J., in separate concurrences)).
. , Though some have argued that the doctrine of constitutional avoidance counsels in favor of applying a reasonable-doubt standard in the post-Booker finding of Guidelines facts, see, e.g., Memorandum from Steven T. Wax and Stephen R. Sady to Federal Public Defenders (Jan. 31, 2005), at http://www.federal defenders.org/blog_doubtredux.pdf, I agree with the majority that the doctrine does not apply here, see Maj. Op., supra, at 567 n. 7. Though Judge Sloviter argues that the comment to § 6A1.3 in the Guidelines is inapplicable to this case, Dis. Op., infra, at 591-92 (Sloviter, J., dissenting), I consider that policy *577statement to be directly on point, thus precluding invocation of the doctrine.
. See John Gleeson, The Road to Booker and Beyond: Constitutional Limits on Sentence Enhancements, 21 Touro L.Rev. 873, 882-83 (2006) ("From the perspective of the lower *578federal courts, Blakely might as well have said, 'We hold that the statutory maximum sentence is not the statutory maximum sentence.' ”); Kevin R. Reitz, The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes, 105 Colum. L. Rev. 1082, 1091 (2005) (“Here was the huge surprise in Blakely: that a guideline presumption nested within broader statutory parameters should itself be understood as a statutory maximum.”).
. Ring v. Arizona, 536 U.S. 584, 613, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Scalia, J., concurring).
. Judge McKee makes a powerful argument that the Guidelines' continued significance in federal sentencing nevertheless implicates the holdings of Apprendi and Blakely. Dis. Op., infra, Part I. A (McKee, J., dissenting). Though he disavows any attempt to "undermine Booker," Dis. Op., infra, at 609 n. 52 (McKee, J., dissenting), his argument accomplishes just that. Its logic is that “considering” the Guidelines — as required by Booker’s remedial opinion — renders them just as essential to (and determinative of) a defendant's punishment as they were pre-Booker. In making this case, Judge McKee has good company. See United States v. Henry, 472 F.3d 910, 922 (D.C.Cir.2007) (Kavanaugh, J., concurring) (noting that "current federal sentencing practices may be in tension with the Constitution ... because the current system — in practice — works a lot like the pre-Booker system”); Kandirakis, 441 F.Supp.2d at 289-99 (Young, J.) ("[T]he Guidelines — and their judge-made factual findings — are still the driving force behind federal sentencing.”); Michael W. McConnell, The Booker Mess, 83 Denver U.L.Rev. 665, 677 (“The jury verdict is no more consequential after Booker than before.”). Indeed, Justice Scalia made the same point in his dissent to Booker's remedial opinion. See 543 U.S. at 311-13, 125 S.Ct. 738 (predicting that Booker's remedy would create de facto mandatoiy Guidelines). The reality is, however, the same Court to strike down the judge-based, mandatory Guidelines system as unconstitutional also issued the remedy: a judge-based, advisory Guidelines scheme. No matter how compelling Judge McKee's reasoning may be, it must fail, as it cannot be unconstitutional under current doctrine for a sentencing judge to do exactly what the Supreme Court has instructed be done.
.I must also, therefore, respectfully disagree with my dissenting colleagues, who argue that Apprendi and Blakely operate post -Booker to require proof beyond a reasonable doubt for the Guidelines fact at issue here — whether Grier committed an aggravated assault. That the Guidelines are no longer mandatory makes all the constitutional difference as far as those cases are concerned. As Justice Stevens’s merits opinion in Booker said, "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.” 543 U.S. at 233, 125 S.Ct. 738; see also Apprendi, 530 U.S. at 481, 120 S.Ct. 2348. That is exactly what Justice *579Breyer’s remedial opinion in Booker purported to do. But see supra, note 23.
Both Judge Sloviter and Judge McKee highlight the Supreme Court's statement in Blakely that " 'the 'statutory maximum’ for Appren-di 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 ’ ” in arguing that Apprendi can apply under the statutory maximum. Dis. Op., infra, at 598-99 (Sloviter, J., dissenting) (quoting Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in Blakely)); see also Dis. Op., infra, at 605 (McKee, J., dissenting). I believe, however, that they overlook a critical qualifier in that statement: the word ''may.” For only if the Guidelines are mandatory, as they were pre-Booker, is Blakely violated. Under that system, a judge could not sentence a defendant above the Guidelines range associated with the base offense level for the offense of conviction without finding additional facts. But because Justice Breyer's remedial opinion in Booker "sever[ed] and excis[ed]” the statutory provisions making the Guidelines mandatory on sentencing and appellate courts, a judge “may” impose any sentence made available by the statute of conviction, regardless of any additional facts he may or may not find. The jury verdict alone now sets the bounds of a judge's sentencing discretion; therefore, Blakely does not decide this case.
Nothing in the Supreme Court’s recent Cunningham decision alters this conclusion. Cunningham, like the merits decision in Booker, is nothing more than a simple application of Blakely — this time to California's determinate sentencing law. See Cunningham, 127 S.Ct. at 866 n. 10 ("California’s [law] ... resembles pre-Booker federal sentencing in the same ways Washington’s sentencing system did [in Blakely ] . . . . ”). Thus, Cunningham does not inform the law applicable here in any material way, as Judge Sloviter and Judge McKee argue. See Dis. Op., infra, at 597, 600 (Sloviter, J., dissenting); Dis. Op., infra, Part IV (McKee, J., dissenting).
Judge Sloviter argues at length that Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), compels the conclusion she reaches. See Dis. Op., infra, at 593-96 (Sloviter, J. dissenting). Her argument is that because (1) there would have been "grave and doubtful constitutional questions” in Jones if the statute in that case were interpreted other than how it was (i.e., that it established three separate crimes), Jones, 526 U.S. at 239, 119 S.Ct. 1215, and (2) that "[t]he Jones factual scenario does not differ markedly from that presented in this case,” Dis. Op., infra, at 594 (Sloviter, J., dissenting), the Constitution thus requires that separate-crime sentencing enhancements be proven beyond a reasonable doubt.
It is not debatable, though, that Jones employed the doctrine of constitutional avoidance to reach its result. See Jones, 526 U.S. at 251-52, 119 S.Ct. 1215; see also Cunningham, at 863. That doctrine "is not a method of adjudicating constitutional questions by other means. Indeed, one of [its] chief justifications is that it allows courts to avoid the decision of constitutional questions.” Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (citations omitted, emphasis in original). Therefore, Judge Slo-viter's reliance on Jones is misplaced, for that case did not answer any constitutional questions. Rather, those difficult questions were answered later — in Apprendi, Blakely, and Booker. See Booker, 543 U.S. at 237, 125 S.Ct. 738 (noting that concerns over modern sentencing practices "led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one [Booker)." (emphasis added)); see also Cunningham, at 863 ("[T]he Jones opinion presaged our decision, some 15 months later, in Apprendi v. New Jersey." (citation omitted)).
. We did not rule that the appropriate standard was any higher (i.e., beyond a reasonable doubt) only because the defendant had not argued for it. See Kikumura, 918 F.2d at 1101.
. See, e.g., United States v. Mack, 229 F.3d 226, 232-35 (3d Cir.2000) (holding that an increase of 39% in Guidelines range and 12% in actual sentence did not require the relevant sentencing factors to be found by clear and convincing evidence); United States v. Paster, 173 F.3d 206, 216-17 (3d Cir.1999) (noting that the Government conceded that a clear- and-convincing standard was proper for the nine-level departure it sought); United States v. Baird, 109 F.3d 856, 865 n. 8 (3d Cir.1997) (holding that a five-level departure did not "present the rare circumstance” presented in Kikumura); United States v. Bertoli, 40 F.3d 1384, 1409-10 (3d Cir.1994) (applying Kikumura to a factual finding which dictated a 50-fold upward departure from the criminal fine as calculated in accordance with the Guidelines); United States v. Seale, 20 F.3d 1279, 1287-89 (3d Cir.1994) (requiring proof by clear and convincing evidence when the-enhancement resulted in a seven-fold increase in the Guidelines-calculated fine); United States v. Mobley, 956 F.2d 450, 454-59 (3d Cir.1992) (holding that an enhancement raising the Guidelines range from 15-21 months to 21-27 months did not violate due process).
. See, e.g., United States v. Mezas de Jesus, 217 F.3d 638, 642-45 (9th Cir.2000) (citing United States v. Restrepo, 946 F.2d 654, 659-60 (9th Cir.1991) (adopting Kikumura), and requiring an uncharged kidnapping to be found by clear and convincing evidence when such a finding would result in a nine-level Guidelines enhancement and the resulting sentencing range to increase from 31-27 months to 57-71 months); United States v. Gigante, 94 F.3d 53, 56 (2d Cir.1996) ("In our view, the preponderance standard is no more than a threshold basis for adjustments and departures, and the weight of the evidence, at some point along a continuum of sentence severity, should be considered with regard to both upward adjustments and upward departures.” (emphasis in original)); United States v. Lombard, 72 F.3d 170, 183-87 (1st Cir. 1995) (holding it to be a violation of due process not to consider a downward departure where defendant had been acquitted of a state-law murder charge, but the Guidelines required an enhancement based on finding by a preponderance of the evidence that the defendant indeed had committed the murder, causing the Guidelines sentence to go from 262-327 months to mandatory life imprisonment); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993) ("We believe that, although there may be certain cases where a sentencing fact is a 'tail that wags the dog of the substantive offense,' and might arguably require a finding beyond a reasonable doubt, this is not such a case.” (citations omitted)); United States v. Lam, 966 F.2d 682, 688 (D.C.Cir.1992) (reserving the question of whether the clear-and-convincing standard might be necessary in "extraordinary circumstances”); United States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir.1992) (holding that the facts supporting a six-level increase in the base offense level did not require a heightened standard of proof, but noting the Seventh Circuit's prior approval of Kikumura in United States v. Schuster, 948 F.2d 313, 315 (7th Cir.1991)); United States v. Townley, 929 F.2d 365, 369-70 (8th Cir.1991) (refusing to "foreclose the possibility that in an exceptional case, such as this one, the clear and convincing evidence standard adopted by [Kikumura] might apply.”); United States v. St. Julian, 922 F.2d 563, 569 n. 1 (10th Cir.1990) (adopting the holding oí Kikumura).
. The Ninth Circuit Court of Appeals has ruled that its own Kikumura jurisprudence survives Booker. See United States v. Staten, 466 F.3d 708, 717-20 (9th Cir.2006). There, even the Government initially agreed that a heightened burden of proof applied for sentencing factors having a disproportionate effect on the sentence, though it later recanted. See id. at 717-18 & n. 6.
In contrast, the Seventh Circuit Court of Appeals, relying on the vacated panel decision in this case, has held that Kikumura-style due process analysis did not survive Booker. See United States v. Reuter, 463 F.3d 792, 793 (7th Cir.2006). However, that decision has little persuasive value because, though the en banc majority here needlessly calls Kikumura into doubt, it ultimately does not endorse the initial panel's gratuitous “overruling” of Kikumura. See Maj. Op., supra, at 568 n. 8.
. When the Supreme Court in Blakely sought to develop the test for when the Sixth Amendment required that a jury find a particular fact, it considered several options. The first of these was that "the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge.” Blakely, 542 U.S. at 306, 124 S.Ct. 2531. The Court rejected this approach, however, saying that it "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene. Not even Apprendi’s critics would advocate this absurd result.” Id.
Not only does this discussion prove that my dissenting colleagues' concern is not novel, one would also think the majority here might pause in the face of it. The same test labeled “absurd” by the Supreme Court for the Sixth Amendment is the one adopted by the majority for the Fifth Amendment (though I concede it does not produce an "absurd” result in this instance).
. Judge Sloviter avoids Mobley only by noting that it is a panel decision not binding on this en banc Court. See Dis. Op., infra, at 593 (Sloviter, J., dissenting). That does not make the case incorrect, however. I believe that Mobley is "good law" — if only because of binding Supreme Court precedent.
. Judge McKee reconciles McMillan with Apprendi — and thereby escapes its import in this case — with a "conduct” versus "crime” dichotomy he perceives in Supreme Court precedent. He argues that the difference between McMillan on the one hand, and Apprendi on the other, is that the former approved of a traditional, conduct-related sentencing factor whereas the latter disapproved of a sentencing factor that was also a separate crime. See Dis. Op., infra, at Part I.B (McKee, J., dissenting). I respectfully disagree with this assessment. Just as in McMillan, neither in Apprendi nor any of the Supreme Court cases that followed it could a defendant have been sent to jail solely upon a finding (by a jury or otherwise) of the sentencing factor at issue. See Apprendi, 530 U.S. at 468-69, 120 S.Ct. 2348 ("purposeful intimidation"); see also Cunningham, 127 S.Ct. at 860 ("vulnerable victim” and "serious danger to community”); Booker, 543 U.S. at 227, 125 S.Ct. 738 (drug quantify); Blakely, 542 U.S. at 300, 124 S.Ct. 2531 ("deliberate cruelty”); Ring, 536 U.S. at 592-93, 122 S.Ct. 2428 ("aggravating circumstances” for death penalty eligibility). Not only did the sentencing *585schemes invalidated in those cases rely on factors that were not separate crimes, those factors were also of the traditional, conduct-related type that Judge McKee approves. Rather, the dispositive distinction between the Apprendi cases and McMillan is that the former dealt with sentencing factors that push sentences over statutory máximums, whereas the latter dealt with sentencing factors that only operated below those máxi-mums. Because the sentencing factor at issue here is of this second variety, McMillan controls this case. See supra Part II.A & n. 11.
. See, e.g., United States v. Ibanga, 454 F.Supp.2d 532, 536-38 (E.D.Va.2006); United States v. Coleman, 370 F.Supp.2d 661, 668-73 (S.D.Ohio 2005); United States v. Pimental, 367 F.Supp.2d 143, 149-53 (D.Mass.2005); United States v. Gray, 362 F.Supp.2d 714, 721-22 (S.D.W.Va.2005); United States v. Carvajal, No. 04 CR 222AKH, 2005 WL 476125, at *5 (S.D.N.Y. Feb.22, 2005).
. See United States v. Mercado, 474 F.3d 654 (9th Cir.2007); United States v. Gobbi, 471 F.3d 302, 313-14 (1st Cir.2006); United States v. Dorcely, 454 F.3d 366, 371-73 (D.C.Cir.2006); United States v. High Elk, 442 *586F.3d 622, 626 (8th Cir.2006); United States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir.2005); United States v. Price, 418 F.3d 771, 787-88 (7th Cir.2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005).
. The very mention in Booker of Watts's narrow holding would seem to indicate that it is still binding on lower courts. See Booker, 543 U.S. at 240 n. 4, 125 S.Ct. 738. But even if the specific holding of Watts survives the Supreme Court's Apprendi jurisprudence, the practice of considering acquitted conduct might not. That is, even if considering acquitted conduct for sentencing purposes does not violate the Double Jeopardy or Due Process Clause of the Fifth Amendment, doing so might still violate the jury right of the Sixth Amendment as expounded by Apprendi and its progeny. Our Court has not yet spoken on this issue, but because Grier only presses Fifth Amendment arguments, I leave it for another day.
. I assume here that the facts are as found by the District Court. However, I support the majority’s remand for a fuller exploration and explanation of these findings and of Grier’s ultimate sentence, see Maj. Op., supra, Parts II.B & II.C, particularly in light of the concerns raised by Judge Sloviter’s dissent, see Dis. Op., infra, Part III. In joining Parts II.B. and II.C of the majority opinion, I do not understand it to be an "affirmation of the District Court's finding that Grier committed an aggravated assault,” as Judge Sloviter believes. Dis. Op., infra, at 604 (Sloviter, J., dissenting).
. See 18 U.S.C. § 3553(a); Gunter, 462 F.3d at 247-49; see also Reuter, 463 F.3d at 793 (“A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances.”); United States v. Dazey, 403 F.3d 1147, 1177 (10th Cir.2005) ("District courts might reasonably take into consideration the strength of the evidence in support of sentencing enhancements, rather than (as in the pre-Booker world) looking solely to whether there was a preponderance of the evidence, and applying Guidelines-specified enhancements accordingly.”); cf. United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.2005) (“[D]istrict courts should consider the jury's acquittal [on another charge] when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence.”).
. One significant danger in this regard comes from presuming the reasonableness of a sentence within the Guidelines range. See Stephen R. Sady, Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt, 18 Fed. Sent. R. 170 (2006). Nevertheless, seven courts of appeals have chosen to walk the constitutional line and formally accept such a presumption. See United States v. Dorcely, 454 F.3d 366 (D.C.Cir.2006); United States v. Green, 436 F.3d 449 (4th Cir.2006); United States v. Alonzo, 435 F.3d 551 (5th Cir.2006); United States v. Williams, 436 F.3d 706 (6th Cir.2006); United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716 (8th Cir.2005); United States v. Kristl, 437 F.3d 1050 (10th Cir.2006). Our Court, along with three others, has prudently not adopted this constitutionally doubtful rule. See United States v. Cooper, 437 F.3d 324 (3d Cir.2006); see also United States v. Jimenez-Beltre, 440 F.3d 514 (1st Cir.2006) (en banc); United States v. Fernandez, 443 F.3d 19 (2d Cir.2006); United States v. Talley, 431 F.3d 784 (11th Cir.2005).
. See Booker, 543 U.S. at 312, 125 S.Ct. 738 (Scalia, J., dissenting in part) (“What I anticipate will happen is that ‘unreasonableness’ review will produce a discordant symphony of different standards, varying from court to court and judge to judge....”).