dissenting.
The “career offender” designation in this case — turning the two minor and remote North Carolina convictions into “felonies” — would make a difference of approximately 15 years in Pruitt’s sentence. I dissent not because I disagree that the district court erred in using the highest “prior record level” under North Carolina’s sentencing scheme in finding that Pruitt was a “career offender,” but because I would remand with clear instructions to the district court that Pruitt cannot be sentenced as a “career offender.” We should not reopen the door to a “career offender” sentence for three separate reasons: (1) The North Carolina sentencing statute does not permit Pruitt to be punished for a felony; (2) United States Supreme Court sentencing case law prohibits a federal court from going outside a narrow set of facts to make a “career criminal” sentencing designation, and (3) The rule of lenity requires in this case the use of the federal sentencing date instead of the state sentencing date when calculating whether Pruitt is a “career criminal.”
I. The North Carolina Sentencing Statute and the Federal “Career Criminal” Designation
I can think of no legitimate argument based on the record — and neither the majority nor the government suggests such an argument — whereby the district court could on remand use Pruitt’s prior convictions to now designate Pruitt as a career offender. The convoluted nature of the U.S. Sentencing Guidelines concerning the “career offender” designation, §§ 4B1.1 *427and 4B1.2, is such that in order to understand this case we must first understand the North Carolina sentencing law, §§ 15A-1340.14 through 15A-1340.17. North Carolina’s structured sentencing scheme employs a grid that resembles the federal Sentencing Guidelines, with the “class of offense” for state convictions comparable to the “offense level” under the federal system and the “Prior Record Level” comparable to the “criminal history category” for recidivist offenders. N.C. Gen.Stat. § 15A-1340.17. Each offense level has three categories: mitigated, presumptive and aggravated. N.C. Gen.Stat. § 15A-1340.17(c). Each category prescribes a sentencing range, depending upon under which “prior record level” the defendants falls. The following subsection in the statute dictates the “maximum statutory sentence” that may be imposed upon a defendant falling within a specific range. N.C. Gen.Stat. § 15A-1340.17(d) (“for each minimum term of imprisonment in the chart in subsection (c) of this section, expressed in months, the corresponding maximum term of imprisonment, also expressed in months, is as specified in the table below for Class F through Class I felonies. The first figure is the minimum term [from subsection (c) ] and the second is the maximum term.”)
The two minor offenses for which Pruitt was given short sentences in 1998 and 2003 are at the very bottom of the grid — offenses that fall within Class I, which follows after Classes A through H. Under that chart, the “presumptive” sentence for each offense is a misdemeanor. Under North Carolina’s sentencing scheme, Pruitt’s sentencing range in subsection (c) under the “presumptive” category for an offender with the highest “prior record level” is 8-10 months. Looking to subsection (d) for the “maximum sentence,” we find that 12 months is the maximum term allowed for a Class I felony with a range from subsection (c) of 8-10 months. The only way to reach a 15-month maximum sentence for a Class I felony — and therefore to qualify the predicate convictions as felonies for purposes of applying the career offender enhancement in the federal Guidelines — is for the offender’s sentencing range to be in the “aggravated” category under subsection (c). In order for either of Pruitt’s North Carolina offenses to be classified as punishable for more than one year under the “career offender” provision of the U.S. Sentencing Guidelines, the North Carolina sentencing court would have to find as a fact a series of North Carolina “aggravators under § 1340.17, which the North Carolina court did not find at the time of sentencing and do not exist in our record or any record in any federal or state court subject to judicial notice and use by us in this case. Because aggravators were not present in the two prior state convictions and it would be impermissible for a North Carolina state judge to find such aggravators were Pruitt sentenced for the same crimes today, it is contrary to law to find that an “aggravated” sentence should serve as the “maximum punishment authorized” for Pruitt’s state convictions. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
At the time Pruitt was sentenced for the 1998 and 2003 convictions in North Carolina, the sentences could only have exceeded one year if the North Carolina sentencing judge had found that the state met its “burden of proving beyond a reasonable doubt that [certain] aggravating factor[s] exist, such as “(7) the offense was especially heinous ...” or “(10) the defendant was armed ...” as required by the preceding § 1340.16. No one has ever suggested that any such aggravator is or was present and the government concedes that they were not. No such aggravator was *428charged by the state, as required by state law, or found by the state sentencing judge. So I do not see why we are remanding to the district court with an opinion and order that gives the district court open-ended authority to sentence Pruitt as a “career offender.”
I do not agree that the maximum sentence for the entire offense class, that is, a sentence that requires a finding of aggra-vators regardless of whether such aggravating factors have been found by a jury to exist or admitted in the case of a particular defendant, can serve as the maximum allowable sentence for purposes of determining career offender status. That is what the majority opinion allows in this case. In the absence of a jury finding or a guilty plea, the highest possible statutory sentence under North Carolina law is the statutory maximum for the “presumptive” range, which provides for a maximum sentence of 12 months. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). The North Carolina Supreme Court has held that the maximum possible sentence for an offender, like Pruitt, in the category of “no finding of aggravating circumstances” is the “presumptive” range with its absolute maximum sentence of 12 months.
The majority seems to rely on United States v. Rodriquez, — U.S. -, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), to find that the maximum sentence for a Class I felony under North Carolina law is the maximum allowed for the “aggravated,” not “presumptive,” range. As the Supreme Court explained, however, the “concept of the ‘maximum’ term of imprisonment or sentence prescribed by law ... necessarily referred to the maximum term prescribed by the relevant statute.... ” 128 S.Ct. at 1792 (emphasis added). The only “relevant” statute in this case involves the maximum sentence correlating to the top of the “presumptive” range for Class I felonies in North Carolina — 12 months. N.C. Gen.Stat. § 15A-1340.17(d).
To the extent it is relevant at all to this situation, Rodriquez supports Pruitt’s argument that when the statute in question contains multiple “maximum” sentences depending on some categorization of the offender based on conduct, the sentencing court should look to the facts and circumstances of that conviction to determine which maximum sentence applies for purposes of the career offender enhancement. Rodriquez held only that the applicable maximum sentence for purposes of federal sentencing is that prescribed by the underlying criminal statute, as opposed to the sentence the defendant actually received or the top of the specified guidelines range, as Rodriquez argued.
The Court did not hold that there can be only one applicable “maximum” sentence for the offense class and it must be the highest level possible for any defendant. Rodriquez directs the federal sentencing court to look to the underlying state statute. If the statute prescribes more than one maximum sentence for different categories of defendants, the court should look to the appropriate factors surrounding the individual defendant’s prior convictions to determine if the convictions qualify for purposes of enhancing the federal sentence — just as the majority argues should be done to determine Pruitt’s prior record level under North Carolina law. Nothing in Rodriquez allows the federal sentencing court to look beyond the known facts in the record of the particular defendant’s prior conviction to enhance it so as to allow a higher “maximum sentence” to be used for career offender purposes. Here, the government concedes that Pruitt falls within the “No Aggravating Factors” category within the Class I felony statute. *429Further support for this reading of Rodriquez as it applies to the career offender enhancement is found in an Application Note to U.S.S.G. § 4B1.2, the definition section for the terms used in § 4B1.1. The Note explains that in determining whether an offense is a crime of violence or a controlled substance for the purposes of § 4B1.1, the “conduct of which the defendant was convicted” is the focus of the inquiry. U.S.S.G. § 4B1.2 cmmt. n. 2.
In any event, Rodriquez did not directly address the issue in this case — whether an aggravated or non-aggravated sentence should serve as the statutory maximum sentence under a multi-tier scheme based on conduct, such as North Carolina’s. Rodriquez did not raise the Sixth Amendment issue of whether an aggravated sentence can serve as the statutory maximum when no aggravators were present at the time of sentencing and where the state sentencing court would be prohibited from finding such aggravators today under Blakely and Allen. Rodriquez does not alter the conclusion that the maximum possible sentence under North Carolina law to which a Class I offender in the category of “no finding of aggravating circumstances” is the statutory maximum for the presumptive range.
The highest maximum sentence to which Pruitt was subject as a Class I felony offender with no finding of aggravating circumstances was exactly 12 months, even if it could be determined that he should be placed in the highest “prior record level” category (Level VI). Therefore, the only way that Pruitt can be found to be a “career offender” is if the district court finds that his prior record level under North Carolina law is at the maximum level of VI and if the dispositions of his Class I offenses fall within the “aggravated” range instead of the “presumptive” range of North Carolina’s three-tier system for categorizing offenses within each class. Because I see no basis for allowing the “aggravated” maximum sentence to be used in this case instead of the maximum sentence under the “presumptive” range with no aggravators, I see no reason to direct the district court to engage in the unknowable task of determining Pruitt’s “prior record level” under North Carolina law.
Based on the fact that there is no basis to find that Pruitt’s maximum sentence could have exceeded 12 months regardless of his prior record level, I find a remand unnecessary. Under no circumstances present in this case should the district court be allowed to use the “aggravated” range to determine Pruitt’s prior sentences under North Carolina law. If the district court is confined to finding that the maximum allowable sentence Pruitt could have received for his prior Class I offenses fall within the “presumptive” range, there is no way that Pruitt’s prior sentences could have exceeded one year and the possibility of sentencing him in federal court as a “career offender” becomes impossible.
II. Supreme Court Case Law Prevents Going Outside the Record
Although I do not believe we need to even address Pruitt’s prior record level because he should be exposed to no sentence exceeding 12 months regardless of his prior record level, I agree that the district court erred in assuming the worst possible prior record level for Pruitt under North Carolina’s recidivist statute instead of making an individualized finding as to Pruitt based on his record under North Carolina law. However, looking back today, I see no way to determine Pruitt’s “prior record level” with any accuracy. The determination would require the district court to find unknowable factual an*430swers to unknowable questions. We do not even know what facts, if any, the North Carolina judges used years ago to calculate the “prior record level,” or whether such a calculation was made, or who made the calculations, if anyone, or how one would now go about reconstructing whatever it is that would have constituted Pruitt’s unknown “prior record level.” And to make matters worse, Supreme Court case law forbids federal district courts in “career offender” cases from calculating a state law sentence based on facts outside the record. Federal district courts may “look only to the fact of conviction and the statutory definition of the prior offense,” and they may not “determine what the conduct was or try to reconstruct facts” that would determine the “prior record level.” Taylor v. United States, 495 U.S. 575, 601-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Federal courts “must avoid subsequent evidentiary inquiries into the factual basis for the earlier conviction,” and they may not resolve “disputed findings of fact about what the defendant and the state judge understood as the factual basis of the prior plea.” Shepard v. United States, 544 U.S. 13, 20, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
III. The Rule of Lenity Applied to This Case
Even if somehow the state judge sentencing Pruitt in 1983 or 2003 could have found some aggravators that could have converted his sentence from the “presumptive” to the “aggravated” range, we should be foreclosed from doing that now under Allen and North Carolina statutory amendments implementing Allen that prohibit any such finding of an aggravator not found by a jury or admitted by defendant. The U.S. Sentencing Guidelines do not specify a date on which the district court should rely to find whether prior state convictions qualify for federal enhancements like the career offender enhancement.
Moreover, we have no basis to assume the state conviction date, instead of the federal “career offender” sentencing date, is the appropriate date for determining whether the state law “penalty” is a “felony” for “career offender” purposes or a misdemeanor. With such confusion as to how a federal court would go about establishing Pruitt’s “prior record level” under North Carolina law for the purposes of the federal career offender guideline, we cannot direct or guide the district court. It is clear that in the construction of penal laws where there is an ambiguity as to the nature of the penalty to be used to calculate such things as “career offender” status, the common-law-inspired rule of lenity should be applied. And for “career criminal” purposes, the federal sentencing judge should use the penalty at the lesser end of the ambiguity scale rather than the greater. The rule of lenity was correctly applied by our court in the “career criminal” context in United States v. Morton, 17 F.3d 911 (6th Cir.1994), by Judge Kennedy for a unanimous panel. Judge Kennedy pointed out that “if the defendant were sentenced today he could not be” classified as a career criminal. Both the former state penalty law and the federal law were “ambiguous.” “The question is at least ambiguous,” she held, and “therefore, under the rule of lenity, should be resolved in defendant’s favor.” She then quoted from United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971): “Where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.” See also Justice Scalia’s detailed discussion of the rule of lenity as a principle of the construction of penal statutes in United States v. Santos, — U.S. -, 128 S.Ct. 2020, 2025-30, 170 L.Ed.2d 912 (2008) (“Under a long line of our decisions, the tie must go to the defendant. *431The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”); United States v. Rodriquez, — U.S.-, 128 S.Ct. 1783, 1800, 170 L.Ed.2d 719 (2008) (Souter, J., dissenting), for Justice Souter’s extensive discussion applying the rule of lenity to the severity of criminal sentencing under the sentencing guidelines; Reed Dickerson, The Interpretation and Application of Statutes 208-12 (1975); L. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L.Rev. 748 (1935).
My colleagues’ opinion is a purely formalistic, legalistic document. It advances no sentencing purpose, calls on no principle or policy of sentencing, never mentions rehabilitation, deterrence, “no greater punishment than necessary” (a version of the rule of lenity), or any other guidepost set out by Congress in 18 U.S.C. § 3553. For two minor and remote marijuana convictions Pruitt may receive the “career criminal” designation and a disproportionate sentence comparable to the sentence he would receive if his two prior convictions were instead for rape or robbery. The defendant here is not an abstraction or a legalistic category. He is a real-life person addicted to drugs, guilty of growing marijuana plants at his house — where he also had three firearms like the “Arms” the Supreme Court recently held “the people have the right to keep and bear” under the Second Amendment. For this terrible crime, and his other two prior minor offenses, we are sending the case back for another sentencing hearing for the district court to make an unknowable calculation based on facts outside the record of this or any record we can judicially notice. Even if such a calculation could be made-, the Supreme Court has told us we may not go so far afield.