dissenting, with whom Judge SLOVITER joins.
As Judge Ambro poignantly notes, Sean Michael Grier “is in prison in part for a crime for which he was never indicted, never tried, and never convicted.” Con. Op., supra, at 573 (Ambro, J. concurring). Nevertheless, he joins the result reached by the majority because he concludes the Supreme Court precedent he so ably discusses requires that result. It is certainly true that we are bound by prior decisions of the Supreme Court, even though they may now be in tension with Apprendi and its progeny. See Con. Op., supra, at 575 (citing State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997)) (Ambro, J. concurring). However, as I explain below, and as Judge Sloviter so ably explains, Supreme Court precedent undermines the majority’s analysis, it does not support it.
I write separately to explain why I join Judge Sloviter in dissent rather than join Judge Ambro’s thoughtful concurrence, and to explain why I believe that the Fifth Amendment does not allow a sentencing court to enhance a sentence pursuant to U.S.S.G. § 2K2.1(b)(5) when the Government only establishes that the defendant committed an uncharged felony by a preponderance of the evidence.
I.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court stated, “any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 476, 120 S.Ct. 2348 (citation omitted). The Court later characterized this as a “bright-line rule.” See *605Blakely v. Washington, 542 U.S. 296, 308, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
In Blakely, the Supreme Court rejected the state’s contention that the rule of Ap-prendi was not violated because the defendant’s sentence was less than the statutory maximum allowed under the state’s criminal code. The Court defined “statutory maximum” as follows:
Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional finding. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority.
Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (citation omitted) (quotation omitted) (emphasis in original). The Court’s pronouncement referred to the Sixth Amendment because, as the majority notes, that was the issue before the Court. However, constitutional guarantees can not be neatly quarantined in the manner suggested by the majority’s failure to recognize the Fifth Amendment implications of Blakely. The majority’s sequestration of these constitutional provisions improperly restricts the operation of the Fifth Amendment’s Due Process Clause and contravenes the Court’s analysis in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). There, the Court stated, “un-dor the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215.49
As my colleagues in the majority explain, Booker modified the Sentencing Reform Act of 1984 (“SRA”), Pub.L. No. 98-473, 98 Stat. 1837, 1987 (1984), by severing two provisions: 18 U.S.C. §§ 3553(b)(1) (requiring courts to impose a sentence within the applicable Guidelines range) and 3742(e) (prescribing standards of review on appeal, including de novo review of departures from the relevant Guidelines range). United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). “Excising” these sections morphed the previously mandatory Guidelines into advisory Guidelines. Id. at 259, 125 S.Ct. 738. As the Booker Court explained, “without ... the provision that makes the relevant sentencing rules mandatory and imposes binding requirements on all sentencing judges [ ] the statute falls outside the scope of Apprendi’s requirement.” Id. (internal quotations omitted).
Relying upon this judicially-spawned metamorphoses, the majority holds that the Fifth Amendment requires only that a jury find “each element of an offense beyond a reasonable doubt,” and concludes that a defendant “may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.” Maj. Op., supra, at 561. The resulting sentencing scheme harkens to the pre-*606Guidelines regime where “district courts ha[d] discretion to sentence anywhere within the ranges authorized by statute.” Booker, 543 U.S. at 305, 125 S.Ct. 738 (Scalia, J. dissenting). Although the current operation of the Guidelines “harkens back” to that era, it is clear that Booker’s remedial opinion does not reintroduce the pre-Guidelines sentencing regime. Rather, Booker makes clear that even “[without the ‘mandatory’ provision, the [SRA] ... requires judges to take account of the Guidelines together with other sentencing goals.” Id. at 259, 125 S.Ct. 738.
The majority’s analysis assumes that scrutiny of the operation of a particular Guideline in a given case is pointless because the Guidelines no longer have “the force and effect of laws[.]” Booker, 543 U.S. at 234, 125 S.Ct. 738. This case shows the error of such an oversimplification of the operation of the Guidelines after Booker. Given what happened to Grier, it should be apparent that considerations of due process do not cease merely because the Guidelines are deemed advisory. Although advisory in fact, they remain at the center of the sentencing process, and continue to have a predominant role in determining the sentence that is imposed. See Booker, 543 U.S. at 259, 125 S.Ct. 738; see also United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).
We have, of course, recently held that a sentence post -Booker does not withstand appellate review for reasonableness merely because it is within the applicable Guideline range. See United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.2006). Although our discussion in Cooper reinforces the advisory nature of the Guidelines, it does not alter the fact that application of a particular Guideline can increase the defendant’s exposure based upon facts not found by a jury or proven beyond a reasonable doubt. This is such a case.
A.
My colleagues in the majority find solace in the fact that the holding here “accords with the decisions of each of our sister circuits that has addressed this issue.” Maj. Op., supra, at 566. I am not nearly as comforted by that fact as they. As I have noted elsewhere, “before Booker was decided, one could have developed an even more impressive list of the courts that had incorrectly concluded that Apprendi does not apply to the federal sentencing guidelines.” United States v. Leahy, 438 F.3d 328, 345 (3d Cir.2006) (McKee, J. dissenting).
It is axiomatic that when the Sixth Amendment requires fact finding by a jury, the Fifth Amendment requires proof beyond a reasonable doubt. However, when a defendant knowingly waives the Sixth Amendment right to a jury trial— either by knowingly and voluntarily agreeing to a bench trial or by pleading guilty— the Fifth Amendment guarantee is not automatically waived for all purposes. Grier waived his Sixth Amendment right to a jury trial when he pled guilty. This fact, however, does not place him beyond the reach of the Fifth Amendment’s protection against being punished for a crime unless guilt is established beyond a reasonable doubt.
As Judge Sloviter notes, one of the fundamental reasons for a heightened standard of proof in criminal trials is “the comparative ... costs of erroneous factual determinations.” Dis. Op., supra, at 589 (quoting In Re Winship, 397 U.S. 358, 369-70, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J. concurring)). Due process concerns persist if the sentence imposed includes punishment for an uncharged crime that has only been established by a preponderance of evidence during a guilty plea colloquy. Judge Slo-*607viter reminds us that the Supreme Court, in Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), proclaimed: “if a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it— must be found by a jury beyond a reasonable doubt.” Dis. Op., supra, at 590.
My colleagues in the majority believe that “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. However, they either ignore or misconstrue those traditional practices, and they ignore those practices that guided the exercise of sentencing discretion even before the Guidelines were enacted.
No one would doubt that the sentencing process has traditionally required sentencing judges to consider factors and circumstances that are as numerous as they are varied. The exercise of the broad discretion endemic to the sentencing process demands that the judge know as much about the offender, the offense, and the impact of the offense on the community and victim as practical given the limitations inherent in any judicial proceeding. Accordingly, no one would dispute that it is essential for a sentencing judge to have “ ‘the fullest information possible concerning the defendant’s life and characteristics’ ” in deciding upon an appropriate sentence. United, States v. Watts, 519 U.S. 148, 152, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)).
We all appreciate that Booker returned to sentencing judges much of the discretion that they had exercised before the advent of the SRA and the Sentencing Guidelines. Booker, 543 U.S. at 264, 125 S.Ct. 738. Those Guidelines (like other guideline schemes adopted in many states before and after the SRA), resulted from legislative efforts to bring a degree of uniformity and predictability to the sentencing process while eliminating many of the troubling sentencing disparities that had so often been criticized. Mistretta v. United States, 488 U.S. 361, 365, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (explaining that Congress intended with the SRA to eliminate “[s]erious disparities in sentencing” and the “uncertainty as to the time the offender would spend in prison.”).
After Booker, the sentencing factors in 18 U.S.C. § 3553(a) control sentencing discretion, and the Guidelines are, in theory, but one of those factors.50 However, that *608does not mean that all of those factors are equal in practice. Grier’s sentence illustrates how the Guidelines are now first among equals, and how that primacy can, in limited situations, collide with the Fifth Amendment’s guarantee of due process.
In United States v. Gunter, 462 F.3d at 247, we set forth the three-step process district courts must engage in when imposing a sentence after Booker. The first step in that process is that “[cjourts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.” Id. In order to calculate a defendant’s Guideline range properly, the sentencing judge must — at the second step' — rule on motions for departures and state how any departure “affects the Guidelines calculation.” Id. Finally, upon reaching the third step, and only upon reaching the third step, “[sentencing courts] are required to ‘exercise ... discretion by considering the [other] relevant [i.e., 18 U.S.C. § 3553(a)] factors.’ ” Id. (quoting United States v. King, 454 F.3d 187, 194 (3d Cir.2006)).
The sentence derived from this three-step process must be imposed “regardless [of] whether it varies from the sentence calculated under the Guidelines.” Gunter, 462 F.3d at 247. Nevertheless, the exercise of judicial discretion, which the majority rests so much of its argument upon, is driven by the initial Guidelines calculation at step one. That calculation is the “strong force” that defines the starting point for all that follows. In doing so, it necessarily impacts — and often defines— the ending point. That starting point determines the sentence that is imposed even after the sentencing court has exercised its new-found discretion and factored in any upward or downward departures based upon its Guideline calculations.51 The Guidelines are thus the point of departure for any and all adjustments based upon the “sentencing factors” incorporated into § 3553(a).
Here, Grier’s sentencing range at the first step was 84 to 105 months without enhancements. However, after hearing the victim’s testimony, the sentencing court concluded that the Government had established by a preponderance of the evidence that Grier had committed an aggravated assault (as defined in Pennsylvania by 18 Pa. Cons.Stat. Ann. § 2702(a)) during the commission of the offense he was pleading guilty to. Accordingly, the sentencing court applied a four-level enhancement as required under U.S.S.G. § 2K2.1(b)(5).
The majority’s failure to appreciate the operation of 2K2.1(b)(5) in this context turns a blind eye to the inherent tension between the advisory nature of the Guidelines on the one hand, and their real-world application on the other. The Guideline calculation (required as the first step in the three-step process outlined in Gunter) will often have a far greater impact on the ultimate sentence a defendant receives than either of the other two steps of the *609sentencing process; perhaps even more than the other two steps combined.52 Therefore, the following should come as no surprise:
The majority of federal cases continue to be sentenced in conformance with the [Guidelines]. National data show that when within-range sentences and government-sponsored, below-range sentences are combined, the rate of sentencing in conformance with the sentencing guidelines is 85.9%. This conformance rate remained stable throughout the year that followed Booker.
U.S. Sentencing Comm’n, Report on the Impact of United States v. Booker On Federal Sentencing, 18 Fed. Sent. R. 190, 192 (2006).53
Here, the sentencing judge meticulously computed the sentencing range under the Guidelines, and articulated those calculations with precision. She explained her consideration of the 3553(a) factors as follows: “The Court believes that 100 months is reasonable in view of the considerations of section 3553(a).” My colleagues and I agree that the explanation given is no explanation at all, and that a remand is required. However, requiring more detailed explanations of the sentencing factors under § 3553(a) will not negate the primacy of the Guideline calculation.
Here, the sentencing judge’s determination that Grier committed a separate crime of aggravated assault raised Grier’s Guidelines range from 84 to 105 months to 120 to 150 months. Accordingly, the latter range became the starting point for the exercise of the sentencing judge’s discretion, not the range that would have guided that discretion absent the finding that he committed an uncharged aggravated assault. Not surprisingly, Grier’s sentence fell within the Guidelines-determined range, even after the sentencing judge exercised her discretion under 18 U.S.C. § 3553(a).
I simply can not agree that the Fifth Amendment’s guarantee of Due Process is not implicated by that calculus given the definition of “statutory maximum” that pertains after Blakely. The finding of an aggravated assault and the concomitant elevation of the sentencing range exposed Grier to a longer period of imprisonment than the facts he admitted during the Rule 11 colloquy. Nothing on this record even faintly suggests that Grier would have received as severe a sentence had he not *610been “convicted” of an uncharged aggravated assault, the existence of which was only established by a preponderance of the evidence.54
The majority is not troubled by this increase in Grier’s sentence because my colleagues’ analysis is driven by the conclusion that Grier’s guilty plea “exposed” him to the statutory maximum of 120 months for the illegal possession of a firearm. However, as Judge Sloviter explains, absent the finding that Grier committed an aggravated assault, the sentencing judge “could have sentenced Grier at the low range of the advisory Guideline, i.e. [,] to 84 months imprisonment.” Dis. Op., supra, at 598. The court also may have sentenced him to less than the low end of that Guideline range. Grier’s increased “exposure” is not based upon his character, his conduct, or the circumstances of the offense he pled guilty to. Although the majority apparently believes that the aggravated assault was merely a circumstance surrounding the commission of his crime, those circumstances would have been exactly the same absent a finding that his conduct amounted to a felony under U.S.S.G. § 2K2.1(b)(5).
The sentencing court’s conclusion that Grier’s conduct constituted an aggravated assault under Pennsylvania law changed nothing about Grier, or the circumstances of the offense. It did not alter his culpability, or remorse or increase the need to deter others, protect the public, punish Grier, or increase his threat to the community. Any sentencing judge could assess those factors from his conduct and his background. The finding that he committed the felony of aggravated assault did, however, drastically impact his sentence. It required the sentencing court to apply whatever discretionary “break” it was going to “cut him” to a higher sentencing range than would have otherwise applied. The fact that the court could exercise its discretion to depart downard (as it did), because of the victim’s conduct does not alter the fact that the departure started from a higher range, and thus finished in a higher range, than would have been appropriate otherwise. The additional “circumstance” of the aggravated assault is therefore not just another sentencing factor.
It is certainly defensible from a policy standpoint that one’s sentence should be further enhanced if the circumstances of his/her crime, themselves, constitute another crime. However, when that is the sentencing consideration, the Fifth Amendment requires that “crime” to be established the same as any other crime: by proof beyond a reasonable doubt. If “sentencing factors” are to be transformed into “elements” of an uncharged crime, those “elements” must be proven the same as the elements of any other crime before they can impact the defendant’s liberty.
B.
Tracking Supreme Court precedent through the constitutional thicket of sentencing discloses that 18 U.S.C. § 3553(a) codifies factors that have historically guided judicial discretion in sentencing. Indeed, almost fifty years before Congress enacted § 3553(a), the Court explained in Pennsylvania ex rel. Sullivan v. Ashe, 302 *611U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43 (1937), that a state:
may inflict a deserved penalty merely to vindicate the law or to deter or to reform the offender or for all of these purposes. For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.
Id. at 55, 58 S.Ct. 59; Solem v. Helm, 463 U.S. 277, 286, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (“The constitutional principle of [sentencing] proportionality has been recognized explicitly in this Court for almost a century.”); see also Richard S. Frase, Punishment Purposes, 58 Stan. L.Rev. 67, 82 (2005) (explaining the rationales behind the subsections of § 3553(a), including the endorsement of “proportionality values.”).55
Thus, factors such as whether a defendant brandished or fired a gun during the course of the offense of conviction, or whether he/she threatened or injured someone have, of necessity, traditionally had “a substantial impact” on selecting an appropriate sentence from within the range of punishment authorized by a legislature upon conviction for a charged offense. See Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Absent a legislatively mandated sentence of determinate length, judges could hardly do anything other than base a sentence upon the “special features of the manner in which the ... basic crime could be carried out,” and the offender who carried it out. Id. at 554, 122 S.Ct. 2406 (quotations omitted) (citing Castillo v. United States, 530 U.S. 120, 126, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000)).
Although the distinction between sentencing factors and elements of a crime has lead to no small amount of confusion as Congress and state legislatures have enacted mandatory sentencing enhancements, it remains clear that the factors that must be considered under § 3553(a) pertain to the kind of historic sentencing factors exemplified by considerations that assess the offender’s risk to the community, employability, susceptibility to rehabilitation and (more recently), the need for substance abuse treatment or counseling. When the latter consideration is present, sentencing judges historically relied upon many of the same sentencing factors incorporated into § 3553(a) to choose between inpatient and outpatient treatment. Obviously, a sentencing factor can not be relied upon until a court finds that the factor is present.
In Harris, the Supreme Court emphasized that this traditional “[j]udicial fact-finding in the course of selecting a sentence within the authorized [Guideline] range does not implicate the indictment, jury-trial and reasonable-doubt components of the Fifth and Sixth Amendments.” Harris, 536 U.S. at 558, 122 S.Ct. 2406. In Harris and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court concluded that the Constitution is not offended by the historical *612manner in which judges have gone about fact finding that inform the appropriate exercise of judicial discretion at sentencing. Therefore, legislatures could identify certain sentencing factors and determine the weight those factors were to be given in selecting an appropriate sentence. That is what distinguishes Harris and McMillan from Apprendi and its progeny.56
The instant case, however, is not a situation where the judge relied upon traditional sentencing factors relevant to the defendant’s character or the offense of conviction to decide upon an appropriate sentence. Rather, the judge here relied upon a finding that Grier committed the crime of aggravated assault during the commission of the crime to which he pled guilty. Marshaling the underlying facts into elements of an uncharged crime goes beyond the traditional use of sentencing factors. It does more than punish Grier for the manner in which he illegally possessed the gun; it punishes him for a crime the Commonwealth of Pennsylvania never saw fit to charge him with.57
My colleagues view this as a distinction without a difference. Given their constitutional analysis, they merely view the aggravated assault as conduct that the court could consider in sentencing. Indeed, the court could have, and should have, considered all of Grier’s conduct when deciding upon a sentence. Whatever adjustment the sentencing judge would have made to the Guideline calculation based upon Grier’s conduct or character would have operated on the Guideline range of 84 to 105 months that is set forth for the offense of illegally possessing a firearm. However, the sentencing court did more. The sentence it selected was intended to punish Grier for an aggravated assault that he was never convicted of. That is very different — both in terms of the potential sentence, and in terms of the Fifth Amendment — than what sentencing courts traditionally have used to inform sentencing decisions.58
In noting that the Sixth Amendment guarantee of a jury trial and the Fifth Amendment guarantee of due process of law “stand as a bulwark of individual liberty,” Maj. Op., supra, at 561, my colleagues in the majority acknowledge that the “principle is rooted in common law consid*613erations of fundamental fairness.” Id. (citing Blakely, 542 U.S. at 296, 301-02, 305-07, 311-12, 124 S.Ct. 2531; Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406 (plurality opinion)). My colleagues then favor us with the following “simple syllogism”:
A crime is defined as conduct that is punishable by the state. Conduct is punishable by the state when it exposes the individual to new or additional penalties. Therefore, any conduct that exposes an individual to punishment or increases the maximum punishment to which he or she is otherwise exposed must be deemed a crime. The predicate facts of such conduct constitute the “elements” of the “crime.”
Maj. Op., supra, at 562 (citing Apprendi, 530 U.S. at 483, 120 S.Ct. 2348).
My colleagues read Harris, Apprendi, and McMillan to mean that once a charged offense has been admitted or established by proof beyond a reasonable doubt, the defendant “has no grounds to complain when the maximum punishment authorized by the legislature is meted out by a judge.” Maj. Op., supra, at 562 (citing Blakely, 542 U.S. at 304-05, 309, 124 S.Ct. 2531; Harris, 536 U.S. at 556-68, 122 S.Ct. 2406). Before Blakely, one could hardly have disagreed. However, as I noted at the outset, Blakely explains that the jury’s verdict does not expose the defendant to the maximum punishment “authorized by the legislature.” Rather, the jury’s verdict exposes the defendant to the maximum punishment that can be imposed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original).
Moreover, the majority refuses to recognize that its holding contradicts longstanding Fifth Amendment principles by ignoring the risk of erroneously setting the sentencing range too high based upon consideration of an uncharged crime during the sentencing process. See Dis. Op., supra, at 589-90 (discussing the rationale for requiring proof beyond a reasonable doubt where a criminal defendant’s liberty is at jeopardy). That risk is reduced to constitutionally acceptable levels when a sentencing range is established by factoring in crimes for which the defendant has been convicted. That is the defendant’s criminal history. The convictions comprising that history have been established by proof beyond a reasonable doubt, and the defendant has been afforded the full panoply of constitutional rights that comprise the “bulwark” that safeguards him/her from the power of the state. Considering crimes that rest only upon a preponderance of the evidence is different.
This is more than a technical distinction based on splitting jurisprudential hairs. As Apprendi teaches, “the relevant inquiry is one not of form, but of effect — does the required finding ... expose the defendant to a greater punishment than that authorized by the jury’s verdict?” Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. Requiring certainty beyond a reasonable doubt of such crimes is “not motivated by [Fifth] Amendment formalism, but by the need to preserve [Fifth] Amendment substance.” Booker, 543 U.S. at 237, 125 S.Ct. 738 (referring to the Sixth Amendment).
As we see from the sentencing calculation here, the distinction has a definite impact under § 3553(a) in those few instances where the Guidelines require the sentencing court to set a Guideline range based upon the commission of an uncharged crime. Unless that crime is admitted or established by proof beyond a reasonable doubt, the defendant is being punished for committing a crime the existence of which lacks the certainty required *614by the Fifth Amendment. Thus, “sentencing factors” are silently transformed into “elements” of uncharged crimes. Although sentencing judges remain free to consider any and all conduct, just as they always have, the Government can not punish for a crime without establishing that crime to the level of certainty required under the Fifth Amendment. This restriction is required to “give intelligible content to the right of [due process]. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” Blakely, 542 U.S. at 305-06, 124 S.Ct. 2531.
II.
Judge Ambro believes that finding a Fifth Amendment violation here is “incompatible with the Supreme Court’s ruling in United States v. Watts.” Con. Op., supra, at 583 (Ambro, J. concurring). I disagree. Although I agree that the Court’s holding in Watts is at first difficult to reconcile with concluding that Grier’s Fifth Amendment right to due process was violated, Watts does not preclude that result.
In Watts, police discovered crack cocaine and two loaded guns in Watts’s house. The government charged him with possessing crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and with using a firearm in relation to a drug offense in violation of § 18 U.S.C. § 924(c). A jury convicted Watts on the drug charge, but acquitted him of the gun charge. Nonetheless, the sentencing judge enhanced Watts’s sentence based on its finding by a preponderance of the evidence that he possessed the guns during the offense of conviction. The Court of Appeals for the Ninth Circuit overturned the sentence. That court held: “a sentencing judge may not, under any standard of proof, rely on facts of which the defendant was acquitted” without violating the Fifth Amendment’s Double Jeopardy Clause. Watts, 519 U.S. at 149-150, 117 S.Ct. 633 (quotations omitted).
The Supreme Court overruled the appellate court. The Supreme Court held that sentencing judges may consider conduct underlying charges the defendant has been acquitted of to enhance his/her sentence without violating his/her constitutional rights. Id. at 156, 117 S.Ct. 633. It is of particular relevance to our inquiry that the Watts Court noted that 18 U.S.C. § 3661 and U.S.S.G. § 1B1.3 work in tandem to reinforce “the longstanding principle that sentencing courts have broad discretion to consider various kinds of information,” Watts, 519 U.S. at 151, 117 S.Ct. 633, in selecting an appropriate sentence. See id. at 151-54, 117 S.Ct. 633. The Court cited McMillan for the proposition that “application of the preponderance standard at sentencing generally satisfies due process.” Id. at 156, 117 S.Ct. 633. The Court explained that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” Id. at 156, 117 S.Ct. 633 (quoting Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).
Watts is distinguishable from the instant case because, as I have explained, Grier’s enhancement was based upon the sentencing judge’s finding that his conduct constituted a separate crime under Pennsylvania law; it was not based on the conduct alone. Watts reinforces the fact that sentencing judges have historically relied upon a virtually boundless universe of facts regarding the offender and the nature of the offense of conviction to inform discretion and select an appropriate sentence. Accordingly, the Court’s decision in Watts approving a sentencing enhancement based on a defendant’s possession of a *615gun — even in the face of the jury’s acquittal of possessing it in connection with a controlled substance violation — can be understood as being rooted in the Court’s traditional understanding of the kind of facts judges consider in crafting an appropriate sentence. However, neither that traditional understanding nor the Constitution allow enhancement of a sentence based on a sentencing judge’s finding by a preponderance of evidence that a defendant is guilty of another crime.59
As I noted earlier, “Booker did not address the applicability of the right to proof beyond a reasonable doubt in the advisory Guidelines system[,]” because it had no reason to. Maj. Op., supra, at 565. However, Booker’s silence on the issue is not a proclamation that the Fifth Amendment can never require proof beyond a reasonable doubt at sentencing.60 Indeed, the Supreme Court has suggested the contrary, and we have also expressed concerns about such a narrow interpretation of the Fifth Amendment.
III.
“It was in McMillan v. Pennsylvania that [the Supreme] Court, for the first time, coined the term ‘sentencing factor’ to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge.” Apprendi, 530 U.S. at 485, 120 S.Ct. 2348 (citation omitted). McMillan was also the advent of the “tail which wags the dog” metaphor, which we amplified in United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990).61 See Con. Op., supra, at 580-82 (Ambro, J. concurring); Maj. Op., supra, at 568 n. 8. The metaphor resulted from our concern that a sentencing factor that dramatically increased one’s sentence should rest on more than a preponderance of the evidence. Although we did not articulate it in Kikumura, that concern was clearly a manifestation of the traditional interest in mitigating the risk of error that is incorporated into the Fifth Amendment by the guarantee of a heightened standard of proof. See Dis. Op., supra, at 589-90.
*616I share Judge Ambro’s concern about the ease with which the majority questions the continued vitality of our analysis in Kikumura. The concern recognized in Ki-kumura that a heightened standard of proof is appropriate when the sentencing procedure becomes the “tail which wagged the dog” still lurks within the interstices of the advisory Guidelines that must be applied after Booker. However, even though that elusive measure allows sentencing judges to identify some situations where the Fifth Amendment requires a heightened standard of proof, it will not sniff out all such cases.62
A.
In Kikumura, we relied upon McMillan’s tail-wagging-doggie metaphor in stating: “[where] the magnitude of a contemplated departure is sufficiently great ... the factfinding underlying that departure must be established at least by clear and convincing evidence.” Kikumura, 918 F.2d at 1101. As Judge Ambro notes, we did not require proof beyond a reasonable doubt because the defendant only argued for a standard of clear and convincing evidence. Con. Op., supra, at 580 n. 25 (citing Kikumura, 918 F.2d at 1101) (Ambro, J. concurring). Thus, under Kikumu-ra, the applicable standard of proof under the Fifth Amendment turns on the differential between the sentence a defendant would have received absent certain findings of fact, and the proposed sentence that will be imposed based on those additional findings. At some point, that differential becomes too disproportionate to the unenhanced sentence to allow the increase to rest only on a preponderance of the evidence.
However, there is no way to identify those situations consistently. In Kikumu-ra, we explained:
if proof by a mere preponderance is sufficient to justify a two-level increase for willfully impeding an investigation ... then proof by that identical standard is also appropriate in order to justify, for example, a four-level increase for organizing an offense ... or a six-level increase for unlawfully receiving explosives that one knows to be stolen ... or probably even a ten-level increase for distributing those explosives to a fugitive from justice.
Id. at 1100 (quotations omitted). We were concerned in Kikumura because the enhancement there raised the defendant’s exposure “from about 30 months to 30 years — the equivalent of a 22-level increase in his offense level.” Id. at 1100. Accordingly, we can conclude with some confidence that the existence of sentencing factors that result in that large an increase in a sentencing range is of sufficient gravamen to start Rex “awaggin.” Similarly, we can confidently conclude that an increase of one or two levels will not have much of an impact on our metaphorical mastiff. But where do we draw the line?
The extremes are easy. But how do we construct any kind of consistent jurisprudence that sentencing courts can apply in the overwhelming majority of cases that cluster away from the polar extremes? Justice Scalia addresses just such a dilemma in Blakely.
*617B.
In discussing the application of the Sixth Amendment in Blakely, Justice Scalia noted that legislatures could “establish legally essential sentencing factors within limits ” that would be crossed “when, perhaps, the sentencing factor is a ‘tail which wags the dog of the substantive offense.’ ” Blakely, 542 U.S. at 307, 124 S.Ct. 2531 (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411) (emphasis in original). Under such a sentencing scheme, the Sixth Amendment guarantee of a jury trial would be triggered when the law went “too far [,]” and “exceed[ed] the judicial estimation of the proper role of the judge.” Id. (emphasis in original). Applying Kikumura to that scenario, we could draw upon Blakely to conclude that a heightened standard of proof is required when the law goes too far; i.e., when the increase in the sentencing range becomes “too” disproportionate to the pre-enhancement range. However, there, just as with the protection guaranteed under the Sixth Amendment, “[tjhere is no answer that legal analysis can provide. With too far as the yardstick, it is always possible to disagree with such judgments and never to refute them.” Blakely, 542 U.S. at 308, 124 S.Ct. 2531 (emphasis in original).
Thus, in the vast majority of eases gathered somewhere in the middle, away from the extreme that concerned us in Kikumu-ra, it is possible for an appellate court to conclude that a heightened standard of proof is required, yet never be able to refute the trial court’s failure to require it. When sentencing factors result in increases that are neither extreme, nor “de minim is,” such a standard ceases being a workable “standard” at all. Rather, it is merely an expression of the individual sentencing judge’s subjective sense of fairness.
In In Re Winship, the Court traced the long history of the reasonable doubt standard, noting that it “dates at least from our early years as a Nation.” 397 U.S. at 361, 90 S.Ct. 1068. There, the Court observed that any “society .that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is a reasonable doubt about his guilt.” Id. at 363-64, 90 S.Ct. 1068. That statement applies with equal force to a sentencing that rests, in large part, upon the commission of a crime that has only been established by a preponderance of the evidence.
Kikumura is an example of the constitutional tension that is created under the Fifth Amendment when liberty is placed on such a precarious perch. Left only to the proportionality calculus of the tail wagging the dog, we would have to conclude “that the Framers ... have left definition of the scope of [the Fifth Amendment] up to judge’s intuitive sense of how far is too far.” Blakely, 542 U.S. at 308, 124 S.Ct. 2531 (emphasis in original).
Yet, Kikumura’s doggie test tolerates this result in the vast majority of cases because the increase in the sentencing range will not be sufficiently disproportionate in the sentencing judge’s mind to require a heightened standard of proof.
Although such cases do not present the extreme deprivation of liberty so apparent in Kikumura, they nevertheless result in a deprivation of liberty. I am not as anxious as my colleagues in the majority to conclude that a society that proclaims the importance of liberty can so easily tolerate a sentencing procedure that creates the risk of incarcerating someone for an uncharged crime despite a reasonable doubt about his/her guilt.
C.
The cases Judge Ambro relies upon show the difficulty of applying the doggie *618metaphor. See Con. Op., supra, at 581 n. 26 (Ambro, J. concurring). For example, in United States v. Mack, 229 F.3d 226, 232-35 (3d Cir.2000), a 39% increase in the Guideline range and a 12% increase in the actual sentence was not viewed as a sufficient enhancement to trigger a heightened standard for fact finding. However, it is not difficult to conceive of other sentencing courts that would be very uncomfortable allowing a 12% increase in the length of incarceration based only upon a finding that the defendant probably committed an uncharged crime.
United States v. Lombard, 72 F.3d 170 (1st Cir.1995), another of Judge Ambro’s examples, illustrates why the Court of Appeals for the First Circuit relied upon the doggie metaphor to conclude that a federal firearms prosecution was merely a subterfuge to sentence the defendant for murders he had been acquitted of. See Con. Op., supra, at 583-84 (Ambro, J. concurring).
If the Fifth Amendment requires a heightened standard of proof before an uncharged crime can be used to enhance a defendant’s sentence, that protection applies whether the sentencing judge considers the increase “significant” or “insignificant.” Any increase in the term of imprisonment is surely significant to the person who serves the sentence, and I believe it should also be viewed as significant by the society that incarcerates him/ her. The Supreme Court has reminded us that “[a] single day in prison may be unconstitutional in some circumstances.” See Solem, 463 U.S. at 290, 103 S.Ct. 3001 (citing Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)). The constitutional evil is not the duration of the constitutional deprivation, it is the fact of it.
Although a criminal conviction certainly reduces a defendant’s constitutional rights, it does not jettison all of the protections embodied in the Constitution. That is evident from a long line of cases that predate In re Winship and extend to Apprendi and .its progeny. See, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (holding that absence of counsel during sentencing, coupled with prejudice, violated the Sixth Amendment guarantee of counsel).
Nor does an inquiry into whether “the primary conduct for which [the defendant] is being punished[,]” resolve the Fifth Amendment problem. See Con. Op., supra, at 584 (quoting United States v. Mobley, 956 F.2d 450, 459 (3d Cir.1992)) (emphasis omitted) (Ambro, J. concurring). Accordingly, I do not share Judge Ambro’s view of the congruence between Mobley and the position espoused by the majority. I agree with Judge Sloviter’s explanation of why the decision in Mobley offers little support for the majority’s analysis. See Dis. Op., supra, at 593. In addition, I note that Mobley came twelve years before the Court defined “statutory maximum” in Blakely, for purposes of the Guidelines. Moreover, Mobley, like Watts, Harris and McMillan, involved sentencing for conduct; it did not inquire into the constitutionality of basing a sentence on an uncharged crime.
Exposing a defendant to punishment for a crime based only upon facts that are treated as elements of an uncharged offense creates the very real danger of establishing a “shadow criminal code,” just as Judge Ambro states. See Con. Op., supra, at 574 (Ambro, J. concurring). The reality of the sentencing process and the Fifth Amendment dictates demarcation between using circumstances as sentencing factors, and using them as elements of an uncharged crime. The “bright-line rule” of Apprendi, requires that we construct that divide in a manner that maintains the *619traditional distinction between sentencing factors and factors that operate as elements of uncharged crimes using the Fifth Amendment as our straightedge.
Thus, although I agree with Judge Am-bro that it is not necessary to disturb the reasoning of Kikumura, the Kikumura calculus is of little assistance in determining when the Fifth Amendment requires a heightened standard of proof here, and in the vast majority of cases. Nevertheless, even that test is better than the sentencing procedure legitimized by the majority, as that standard allows little if any room for the operation of the Fifth Amendment in the all-important sentencing context.63
IV.
Like Judge Sloviter, I also think that the Supreme Court’s recent decision in Cunningham v. California, 127 S.Ct. 856, is relevant to the Fifth Amendment question raised here. That case is addressed in Judge Sloviter’s dissent. See Dis. Op., supra, at 588-89, 590-91, 597, 599-600. However, at the risk of redundancy, it may be helpful to elaborate briefly.
The defendant in Cunningham was convicted of continuous sexual abuse of a child under the age of 14, and sentenced pursuant to California’s determinate sentencing law (“DSL”). The DSL provided for three different terms of imprisonment following conviction depending on the existence of aggravating or mitigating factors found by the sentencing court.64 In addition to the aggravating factors, which allowed a sentencing court to impose a sentence other than the middle range, the sentencing scheme also allowed for a sentence “above an upper term based on specified statutory enhancements relating to the defendant’s criminal history or circumstances of the crime. [However,] [u]nlike aggravating circumstances, statutory enhancements [had to] be charged in the indictment, and the underlying facts [had to] be proved to the jury beyond a reasonable doubt.” 127 S.Ct. at 867 (citing Cal.Penal Code Ann. § 1170.1(e)).
Following his conviction, Cunningham could have been sentenced to a lower term of six years, a middle term of 12 years, or an upper term of 16 years. California law required that the middle term of 12 years be imposed unless the sentencing judge found circumstances in aggravation or mitigation. Following a sentencing hearing, the judge found six aggravating factors and one mitigating factor by a preponderance of the evidence. The aggravating factors included the vulnerability of the victim and Cunningham’s violent conduct. The only mitigating factor was the absence of a prior criminal record.65 In concluding *620that these factors had been established by a preponderance of the evidence, the sentencing court relied upon several factors including “the trial record; probation officer’s report; statements and aggravation or mitigation submitted by the parties, the victim, or the victim’s family, ‘and any further evidence introduced at the sentencing hearing.’ ” 127 S.Ct. at 860 (quoting People v. Black, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, 538 (2005)).
The defendant challenged the sentencing scheme, arguing that it could not survive the Court’s decision in Booker. In discussing the challenged DSL, the Supreme Court noted that the California Supreme Court had upheld that sentencing scheme against a Booker-premised constitutional challenge on several grounds. The California Supreme Court had acknowledged the DSL appeared in tension with the rule of Apprendi on its surface. However, that court concluded that California’s scheme was not in tension with Apprendi “in ‘operation and effect.’ ” 127 S.Ct. at 866 (quoting Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543). The California court reached that conclusion by reasoning that the “DSL ‘simply authorizes a sentencing court to engage in a type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.’ ” 127 S.Ct. at 866 (quoting Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543). The California court surmised that the statutory maximum remained the upper limit to which the defendant could be sentenced following his conviction, “ ‘and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker. (quoting Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543). Rejecting the California Supreme Court’s analysis, the Supreme Court explained:
We cautioned in Blakely, however that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.
127 S.Ct. at 869 (citing Blakely, 542 U.S. at 305, 124 S.Ct. 2531).
I agree that the federal Guidelines are distinguishable from the sentencing scheme in Cunningham because the post-Booker guidelines do not require the sentencing judge to impose a given sentence absent additional findings of fact, as was the case with the DSL. Indeed, this is no doubt the distinction that the majority and the concurrences rely upon in suggesting that a preponderance of the evidence standard is all that is required here. See Maj. Op., supra, at 565 n. 6; see also Con. Op., supra, at 573 (Rendell, J. concurring); Con. Op., supra, at 578-79 n. 24 (Ambro, J. concurring). However, as Judge Sloviter’s discussion of Cunningham suggests, this distinction is without a constitutional difference.
At the risk of belaboring the point, I think it important to reemphasize that Grier’s sentence did not result from the exer*621cise of discretion based only upon facts established beyond a reasonable doubt. Rather, his sentence is based upon a finding by a preponderance of the evidence that he committed aggravated assault. That finding of fact (i.e., conclusion of law) did not flow from his guilty plea, yet it exposed him to an increased sentence.
Thus, even though my colleagues maintain that Grier’s sentence resulted from the appropriate exercise of judicial discretion within a defined range, as authorized in Booker, 543 U.S. at 233, 125 S.Ct. 738, it is not that simple given Blakely’s definition of “statutory maximum” and the operation of U.S.S.G. § 2K2.1(b)(5).
V.
For the foregoing reasons, I respectfully dissent from the the majority opinion. Likewise, I can not join Judge Ambro’s concurring opinion, primarily, because he suggests a rule that would require the protections of the Fifth and Sixth Amendments for the finding of “every fact (save prior convictions) identified by the law itself as deserving of additional punishment, no matter what that fact may be called.” He believes that “[o]nly in this way [will] the principles of Apprendi — followed through in Blakely, Booker, and, most recently, Cunningham — be fully respected.” Con. Op., supra, at 574 (footnote omitted) (Ambro, J. concurring). However, such a rule would draw an artificial distinction between those factors which judges must consider to fashion an appropriate sentence — factors they have considered since “time out of mind” — and those factors which the legislature may appropriately require the judge to consider in imposing sentence in a given instance. Yet, in practice, those two sets of factors will always substantially overlap if they are not identical. An examination of § 3553(a) illustrates this. Legislators and judges will usually agree on factors which commonsense and social responsibility require be considered at sentencing. Rather, the distinction must be based upon the traditional concept of due process that forbids punishing someone for a crime in the absence of sufficient proof to justify the punishment.
Accordingly, I respectfully dissent from the majority opinion, and instead join Judge Sloviter in dissent.
. As Judge Sloviter explains, the majority ignores the constitutional impact of Jones by dismissing it on the basis that “Jones was a statutory interpretation case.” Maj. Op., supra, at 566. Given Judge Sloviter’s rejoinder to the majority’s view of Jones, I need not elaborate on why Jones is relevant to our inquiry.
. These factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ... issued by the Sentencing Commission!;] ...
(5) any pertinent policy statement ... issued by the Sentencing Commission!;] ...
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
*608(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
. Specifically, the Court in Booker explained that judges were to:
consider the Guidelines sentencing range established for the applicable category of offense committed by the applicable category of defendant, the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims!,] • • • impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. Booker, 543 U.S. at 259-60, 125 S.Ct. 738.
. These concerns are in no way intended to undermine Booker or Gunter. Rather, my observations are merely intended to explain how the application of the Guidelines can result in punishment for an uncharged crime without the constitutionally required level of certainty when the Guidelines include an enhancement such as the one at issue here. The problem can be easily resolved within the Booker/Gun-ter framework by requiring any such crime to be established beyond a reasonable doubt as the court considered doing during the sentencing hearing.
. Clearly, it would be premature to lean too heavily on these numbers from the Sentencing Commission. It is certainly possible that sentences will begin to diverge from Guideline ranges as judges become more comfortable with exercising their discretion based upon their assessment of the effect of the other sentencing factors in § 3553(a). Nevertheless, we can not lightly dismiss these statistics as we consider the post-Booker operation of the Guidelines.
The majority notes that the Guidelines merely "inform the district court's discretion without limiting its authority.” My colleagues conclude that the Guidelines "therefore do not constitute 'elements’ of a 'crime' under the rationale of Apprendi and do not implicate the rights of a jury trial and proof beyond a reasonable doubt.” Maj. Op., supra, at 568 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.). Unless and until the Supreme Court instructs otherwise, I can not help but conclude that such an approach can elevate theory over liberty in certain situations.
. For purposes of this discussion, I will assume that this record is sufficient to prove an aggravated assault. However, I join Judge Sloviter’s discussion of that evidence. Although Grier had a gun, he fired it into the air, not at Navarro, even though he was attacked by Navarro. Accordingly, this record establishes nothing more than a simple assault by physical menace as defined in 18 Pa. Cons.Stat. § 2701(a)(3), as Judge Sloviter explains. See Dis. Op., supra, at 602-03.
. We made a similar point in Cooper, 437 F.3d 324 (3d Cir.2006), noting: "Pre-guidelines sentences were based on the facts of the crime, the criminal history of the defendant, the defendant’s personal characteristics, the applicable statutory law, and general penological goals and principles. These are all found in 18 U.S.C. §§ 3553(a)(1), (2), and (3).” Id. at 326 n. 2.
. By reconciling Harris and McMillan with the Apprendi line of cases, I do not intend to minimize the tension in that line of jurisprudence that Judge Ambro alludes to. Nevertheless, as Judge Ambro states, until the rapidly-evolving law of sentencing under the Fifth and Sixth Amendments resolves, I agree that we must attempt to interpret the Apprendi jurisprudence in a manner that reconciles the Court’s pronouncements. However, I do not agree that resolution of tension within the Court's jurisprudence supports the majority's position.
. Indeed, given the majority's ruling that only a preponderance of the evidence is required to punish him for that crime, and the marginal nature of Navarro's testimony, the decision to forgo prosecution for the purported felony and simply punish Grier for it by enhancing his sentence for the uncharged crime appears a wise decision, although of questionable constitutionality.
.Any concerns about the practicality of requiring any enhancement for an uncharged crime to be based upon proof beyond a reasonable doubt is easily dispelled. Since Ap-prendi, federal and state courts have relied upon jury interrogatories or relied upon a bifurcated trial to establish facts relevant to certain sentencing enhancements under the advisory Guidelines. See Cunningham v. California, -U.S.-, 127 S.Ct. 856, 871, 166 L.Ed.2d 856 (2007). Moreover, inasmuch as the vast majority of cases are disposed of by guilty pleas, the plea colloquy can simply be augmented to have the defendant knowingly and intelligently waive the right to require proof of certain facts constituting an uncharged enhancing crime beyond a reasonable doubt.
.Judge Ambro accurately notes that Watts has faced almost "unrelenting challenge.” Con. Op., supra, at 583 (Ambro, J. concurring). Indeed, since Watts was decided in 1997, only once has a majority of the Supreme Court cited Watts in developing its jurisprudence with respect to the Sixth Amendment’s Jury Trial Clause. In Booker, the Court mentioned Watts only to distinguish it as "present[ing] 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. Moreover, the Court noted that Watts "did not even have the benefit of full briefing or oral argument.” Id.
Likewise, the Booker Court distinguished Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), where it held that the Double Jeopardy Clause did not preclude prosecution for conduct that was the basis for an enhancement of the defendant’s sentence in a previous case because "consideration of information about the defendant’s character and conduct at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted. Rather, the defendant is 'punished only for the fact that the present offense was carried out in a manner that warrants increased punishment.’ ” Watts, 519 U.S. at 155, 117 S.Ct. 633 (quoting Witte, 515 U.S. at 403, 115 S.Ct. 2199).
. I share the dismay expressed by Judges Sloviter and Ambro: " 'Can the majority really be suggesting that the Due Process Clause ... is never applicable to any sentencing issue?’ ” Con. Op., supra, at 579 (quoting Dis. Op., supra, at 593) (Ambro, J. concurring).
. See McMillan, 477 U.S. at 88, 106 S.Ct. 2411 (explaining that Pennsylvania’s mandatory minimum law did not vest in the state legislature unchecked authority to redefine crimes because, among other reasons, “[t]he 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.”).
. It is, indeed, as Judge Ambro notes, odd that the majority is able to confidently conclude that the Supreme Court could not have intended to upset twenty years of practice that has governed sentencings since the advent of the Guidelines while undermining Kikumura, our widely-accepted precedent that affirms a heightened standard of proof at sentencing under the Fifth Amendment depending on the impact of a sentencing enhancement. See Con. Op., supra, at 581 (Ambro, J. concurring).
. I think it fair to conclude that both the defendant and the Government will usually care more about the sentence that is imposed than the offense the defendant is convicted of.
. Specifically, the relevant section provides: Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066 or three or more acts of lewd or lascivious conduct, as defined in section 288 with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
Cal.Penal Code Ann. § 288.5(a) (West 1999). See also Cal.Penal Code Ann. § 667 et seq. (West Supp.2006) (setting forth the bases for enhancement).
.Not surprisingly, as I noted above, these are the kind of traditional sentencing factors that judges have historically considered, with or without guidelines. They are included *620within the considerations codified at 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(a)(1) (providing that "the nature and circumstances of the offense and the history and characteristics of the defendant" should be considered when imposing sentence). The absence of prior record is incorporated into the Guidelines through the Criminal History Category component of the calculation. U.S.S.G. § 4A1.1; 18 U.S.C. § 3553(a)(4)(A).