dissenting.
This is another drug case in which our system of criminal law has imprisoned for many years two more lives and torn up two more families by grossly excessive sentences imposed in the “War on Drugs.” There are many reasons that our federal system of punishment has turned in this direction, not the least of which is the advent during the last 20 years of our irrational set of sentencing guidelines that judges apply by rote on a daily basis. We are constantly adding new prisoners like these defendants with long periods of incarceration to the more than two million men and women now incarcerated in the hundreds of prisons and jails around the country.
These sentencing guidelines hold that mitigating factors like family ties, mental illness, education, and the likelihood of rehabilitation are simply “not relevant” in the sentencing process. Judges’ minds are closed down and sentences ratcheted up by applying convoluted conversion formulas like the one just recited in the majority opinion. The recent Blakely-Booker-Cunningham line of Supreme Court cases has given judges an opportunity to rid the system of some of the worst aspects of guidelinism, but we judges soldier on by applying the old mandatory system as though nothing of significance had happened. The cost to the taxpayers and in *588human lives has become enormous and shows no signs of change.
The majority ratchets the sentence up and up in this case by upholding the factual findings of the district judge that create a sentence many years above the indictment-charged facts to which the two defendants pled guilty. Neither the indictment nor the plea include any quantity of drugs. The base line sentence for the facts of the guilty plea is Level 16, yielding a sentence of 21-27 months for these two defendants who have never previously been convicted of any offense.
After ratcheting up the sentence based upon multiple, disputed judge-found facts regarding quantity, the majority then upholds further judicial fact findings of various disputed enhancements, including a large enhancement for managing the distribution of some ecstasy pills. The majority upholds these grossly inflated sentences by stating simply that these are “factual findings that we review under the clearly erroneous standard,” citing a group of pre-Booker and pre-Cunningham, cases as though Booker and Cunningham had never been decided. As a result of all of these fact findings, the young male defendant received 22-1/2 years imprisonment and the young female 15-1/2 years. Neither the district court nor the majority seriously discusses or takes into account any mitigating factors — such as the fact that the woman has a small child to raise and take care of, or the likelihood of rehabilitation, or the fact that we are dealing here with first offenders with clean records. No real consideration was given by the majority or the district court to the § 3553 factors or to any factors other than the old mandatory guideline rules. Neither court mentions or gives any consideration to the “overarching provision [of § 3553] instructing district courts to ‘impose a sentence not greater than necessary’ to accomplish the goal of sentencing.” Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007). It is as though the courts do not know that this provision of § 3553 exists and is regarded by the Supreme Court as the most important consideration in sentencing. The district court simply resentenced the defendant to the same mandatory guideline sentence previously imposed before the Booker remand, as though no change in the law had occurred, and no further mental effort was called for.
This way of going about resentencing clearly violates the Blakely-Booker-Cunningham line of cases, as I have previously pointed out in a number of cases. See United States v. Sexton, 512 F.3d 326 (6th Cir.2008) (Merritt, J., dissenting); United States v. Phinazee, 515 F.3d 511 (6th Cir. 2008) (Merritt, J., dissenting); and United States v. Thompson, 515 F.3d 556 (6th Cir.2008) (Merritt, J., dissenting). The majority is simply refusing to apply the limitation on judicial fact finding that the Blakely-Booker-Cunningham line of cases imposes on sentencing judges and the courts of appeals. They have not carefully considered the Cunningham case decided a year ago. Six justices joined in the opinion. The Cunningham opinion opens by stating the question:
The question presented is whether the DSL [the California determinate sentencing law], by placing sentence-elevating fact finding within the judge’s province, violated the defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does.
Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 860, 166 L.Ed.2d 856 (2007). After stating the fact that the sentencing judge ratcheted up the defendant’s sentence by one level based on judicial fact *589finding, the court began its analysis of the question in Section II, as follows:
This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.
Id. at 863. The court then finds the basis for its decision in the Blakely precedent decided two years before:
The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury trial guarantee. 542 U.S. at 304-314, 124 S.Ct. 2531. It did not matter, we explained, that Blakely’s sentence, though outside the standard range, was within the 10-year maximum for class B felonies:
“Our precedents make clear ... that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.... 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 findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the judge has not found all the facts ‘which the law makes essential to the punishment,’ ... and the judge exceeds his proper authority.” Id. at 303, 124 S.Ct. 2531 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (emphasis in original) (Quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d. ed. 1872)).
Id. at 865.1 The court emphasized, reemphasized and then stated again that ratcheting up sentences through judicial fact finding violates the Sixth Amendment:
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.
Id. at 869. Finally, the court makes it clear that Justice Breyer’s remedial opinion in Booker in no way alters the rule against ratcheting up the sentence by judicial, factual findings of enhancements:
Booker1 s remedy for the federal guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless. [Footnote 13] Justice Alito, however, would do just that. His opinion reads the remedial portion of the Court’s opinion in Booker to override Blakely, and to render academic the entire first part of Booker itself.
*590In other words, the sentencing judge should start with the base offense level corresponding to the facts found by the jury verdict or admitted by the guilty plea. It should then consider the § 3553 factors, including mitigation and rehabilitation. The sentencing judge should not go up or down from the base offense level unless in his or her own mind the weighing process leads to a different sentence which the district judge must then explain. The judge should not engage in guidelinism, adjusting the sentence up just because he thinks the guidelines say so, as occurred in the instant case, but rather because the judge’s own sense of justice, upon reflection, leads to a different result than the beginning, base-offense level. This allows the guidelines to play a pivotal role to begin with but requires the judge to use his or her own mental faculties and best judgment under § 3553, just as judges did in the days of indeterminate sentencing before the mandatory federal sentencing guideline era.
. Refusing to follow or even acknowledge and discuss the above language from Cunningham, repeated from Blakely and Booker, my colleagues in the majority say only that the defendants "exposed themselves to sentences of up to 240 months in prison (i.e., 20 years) based solely on their guilty pleas for the drug offenses, apart from any additional factfinding by the district court.” (Majority opinion § II.E, emphasis added.) The cases state repeatedly, as quoted above, that the "statutory maximum” for sentencing, factfinding purposes is not the highest sentence that could possibly be imposed under the statute but rather the highest sentence called for by guidelines based on the facts corresponding to the jury verdict or guilty plea, i.e., before the sentencing judge begins any process of enhancement by finding new facts like a larger drug quantity or a management role in the offense. Judges seem so wedded to the preBlakely-Booker-Cunninghamprocess that they simply evade any discussion of this language or the reasoning of the opinions. They fall back on the old judicial maxim: You may be excused for ignoring reasoning you cannot rebut. Ignorantia Eorum Quae Quis Sure Tenetur Excusat.