dissenting.
This 25-year drug sentence is one more war-on-drugs case (among the thousands assigned to the federal courts each year by the Department of Justice) where a drug-addicted, young, black male goes to a federal prison for an unnecessary amount of time. Like many others, it is a case of grossly unfair sentencing disparity — in this case, for example, the leader of the conspiracy goes to prison for one-half the time as his young black minion. It is another post-Booker case in which the sentencing judge still says simply — quote — I am going to “defer to the pronouncements of the Sentencing Commission,” even though the penalogical goals of “rehabilitation and incapacitation” would call for a much lesser sentence. The sentencing judge conforms, he says, because the Commission knows best when it comes to — again, quote — “retribution.” And, of course, the court of appeals panel in this case, like most other court of appeals panels, simply again upholds the “deference” to the guidelines.
This case is one more example of the continuing problem, the problem of guidel-ineism, or “guidelinitis,” the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone. The real “irony” in the system is that after Blakely-Booker told us to return to individualized sentencing, the federal courts continue on a routine, daily basis in most cases, including this one, to make fact findings leading to a determinate sentence. In doing so we continue to do what Blakely-Booker prohibited. We violate the Constitution twice, first the original Constitution in Article III, § 2, that the “Trial of all Crimes ... shall be by a jury” and then the Sixth Amendment right of the defendant to have the facts found “by an impartial jury” “in all criminal prosecutions.” The Founding Fathers were serious about having jurors find the facts, as the Supreme Court keeps reminding us.
The majority is wrong in its view that the recent Gall and Kimbrough cases still require sentencing judges to begin the sentencing process by finding enhancements or aggravators that increase the sentence above the base offense level corresponding to the jury verdict or guilty *522plea. Rather in both of those cases the Supreme Court marshaled a strong majority to stop courts of appeals from making sentencing judges conform to the U.S. Sentencing Guidelines system of ratcheting up the sentence by finding as fact one enhancement after another. My colleagues forget that in those cases the Supreme Court reversed the courts of appeals for requiring conformity by district judges. If courts of appeals should break the habit of conformity, district judges themselves should reform their previous mindset of deference.
In our guideline sentencing system, these injustices flow inevitably from the psychological process of starting with the base offense level corresponding to the facts of the jury verdict or plea followed immediately by a strictly mechanical regime of climbing the sentencing ladder upward enhancement fact by enhancement fact. The sentencing mind is now at the top of the ladder and that series of fact findings now becomes the presumptive sentence. A firm figure is written down as the proper guideline sentence. This upward psychological structure does not provide any downward structure so that the harsh sentence can be corrected by sensitivity to the character of the defendant, the possibility of rehabilitation, other mitigating factors and the consequences of an alternative decision. In other words, all the psychological structure is upward. There is no structure for the application of the judicial conscience that we sometimes call “equity.” The result is a system of de facto, mandatory guideline sentencing, ie., “guidelinitis.”
By ratcheting up the sentence aggravator by aggravator, as is typical under the guidelines, the District Court here (as though Booker had never been decided) sentenced the defendant to 25 years’ imprisonment for a victimless drug conspiracy offense in which he was a very minor participant. The defendant, Phinazee, simply used and sold small amounts of crack to which he was addicted. For a similar drug conspiracy offense involving a minor participant, the Supreme Court just recently upheld a short sentence imposed by a federal judge in Virginia, Kimbrough v. United States, — U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In the instant case, Phinazee received a small amount (2-4 ounces) each week for 3 months from Lindsey Morris, who was the supplier for a number of other purchasers, and was the hub or leader of this wheel and spoke conspiracy that lasted for several years. Phinazee participated for less than 15% of the time Morris ran the drug operation. Yet Morris was sentenced to 155 months, one-half the time imposed on Phinazee, because Morris cooperated with the government by fingering and then testifying against each of the spokes of the conspiracy he himself organized. By comparison with the sentence given Morris and the sentence in the Kimbrough ease, the sentence for Phinazee is beyond the pale of reason. It is particularly harsh in light of the sentencing judge’s reasonable statement to Phinazee from the bench that based on considerations of “rehabilitation” and “incapacitation” alone, Phinazee deserved only a short sentence. (J.A. 143.) But the sentencing judge then turned around and said that based on “retribution” and “general deterrence,” the judge felt bound to “defer to the pronouncements of the Sentencing Commission.” (J.A. 145.)
On these points, the judge’s exact statement was:
The next factor that the Court will consider would be that of incapacitation, that is, if there is something about you that the Court sees that is so dangerous that we need to incapacitate you so that *523you will not commit crimes against the public. The Court believes, because it has seen you, presided over your case, has read the presentence report, has heard what. your attorneys have said, has heard what the U.S. Attorney has said, that it is in the best position to make the determination based on rehabilitation and also incapacitation. The Court believes that there is some risk, but the Court does not believe that it is a great enough risk that incapacitation should be a major factor in determining a sentence in this case.
Again, it is difficult .for a district judge to determine what type of sentence, in the grand scheme of things, is necessary to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense. The Court believes that the Sentencing Commission and Congress are in a better position to make these judgments, and the Court will defer to the pronouncements of the Sentencing Commission through the sentencing guidelines in reflecting the seriousness of the offense, that is, retribution.
(J.A. 143, 145, emphasis added.) The sentencing judge clearly believed that on the question of “just punishment,” he should “defer” even though the sentencing judge knew that the Guidelines regard mitigating factors and rehabilitation as “not relevant” considerations in the sentencing process. This deference by the judge and the panel majority is contrary to my understanding of the law post-Blakely and Booker. I see nothing in the record that would lead to the conclusion that Phinazee, once finally cured of his drug addiction, would likely get back into the drug business. I can see no benefit at all to anyone for sending this man to prison for 25 years. Not only courts of appeals, as the Supreme Court told us in Gall and Kimbrough, but also sentencing judges, as I believe the Supreme Court told us in Blakely-Booker, should simply stop blindly “deferring” to the Sentencing Commission in such cases.
Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities — all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to seriously consider individual factors, including the need for incapacitation and rehabilitation, has been the most important characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggrava-*524tors or enhancements without consideration of other important individual factors.
The ratcheting-up process in the instant case was all based upon judicial findings of fact. It is significant that in the recent cases, Rita v. United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), in which the Supreme Court upheld the district court sentences, the sentence was within or below the guideline range corresponding to the jury verdict or guilty plea. There was no ratcheting up of the sentence by enhancements outside of the initial sentencing range. There were no judicial fact findings that raised the sentence, and I find no Supreme Court case that allows a court to make findings of fact of enhancements that raise a sentence above the guideline range corresponding to the jury verdict or plea. So when the Supreme Court uses the phrase “within the guidelines,” as it does frequently in these cases, it is not clear that it means enhanced sentences based on findings of facts by the judge over and above the facts found by the jury verdict or the guilty plea.
The Supreme Court did not say in Gall or Rita that the sentencing judge should “start” the sentencing process by enhancing the sentence aggravator by aggravator, as happened in the instant case. The Court said that the sentencing judge should begin with the “applicable Guidelines range” which in Gall was the initial base offense level corresponding to facts admitted by the guilty plea, which carried a range of 30 to 37 months. There is no language in Gall or Rita that requires appellate or district judges to “begin” with the enhancement process. That process is directly contrary to the language quoted below in Blakely that a “judge exceeds his proper authority” by basing a higher sentence on judicial findings outside the jury verdict.
It is obvious to anyone who has watched this disingenuous process develop that the present system is completely inconsistent with the Blakely and Booker opinions, which confine judicial fact finding to those facts carrying out a jury verdict or plea of guilty. As the Court said in Cunningham, “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge.” Cunningham v. California, - U.S. -, 127 S.Ct. 856, 863-64, 166 L.Ed.2d 856 (2007) (emphasis added). This statement of the Sixth Amendment rule was first stated in Blakely even more clearly and then repeated in Booker and Rita:
[T]he ‘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 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 jury has not found all the acts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.
Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis added). What is clear is that the district courts and the courts of appeals, as the majority in this case expressly acknowledges, are not applying this rule and do not believe the Supreme Court actually intends to enforce it. The view seems to be that the remedial opinion in *525Booker is inconsistent with this rule, and so the rule may be simply disregarded in practice.2 Justice Scalia predicted such a result in Booker, noting that the Court’s remedial scheme risked preserving “de facto mandatory guidelines by discouraging district courts from sentencing outside Guidelines ranges.” United States v. Booker, 543 U.S. 220, 313, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Scalia, J., dissenting). Indeed, this de facto, mandatory application of the guidelines runs afoul of the Supreme Court’s admonition that “Booker’s remedy for the Federal Guidelines ... is not a recipe for rendering our Sixth Amendment case law toothless.” Cunningham v. California, — U.S. —, —, 127 S.Ct. 856, 870, 166 L.Ed.2d 856 (2007). Many of the members of the Supreme Court have recognized in opinions at one time or another the unprincipled, inconsistent nature of the sentencing game in which we are now engaged.3
The only way to begin to return the process to something consistent with the Sixth Amendment and with the concept of individualized sentencing is to recognize and insist that we stick with two overriding principles: First, that judicial fact finding and the length of a sentence be limited somewhere within the base-offense-level, guideline range corresponding to the jury verdict or the plea, unless the sentencing judge explains why the concepts of general and individual deterrence should require a longer sentence for the particular individual and outweigh the mitigating circumstances of the case (including factors like age, addiction, and family responsibility deemed irrelevant by the Sentencing Commission in Chapters 5H and 5K), as well as the likelihood of successful rehabilitation. Second, that the sentencing judge explain the weighing process outlined above (taking into account moral culpability, general and special deterrence, mitigating circumstances and rehabilitation) so that the sentence and its explanation comply with the “overarching provision instructing district courts to ‘impose a sentence ... not greater than necessary’ to accomplish the goals of sentencing,” Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a)). This “overarching provision,” enacted by Congress in § 3553(a), sets a humane, balancing standard that the sentencing judge should keep as the Golden Mean governing the judicial reflection necessary in each sentencing case to reconcile contrary fac*526tors and arguments in the weighing process in order to arrive at a fair sentence.
In 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. The sentencing judge should not go up or down from that point unless in his or her own mind the weighing process of the two overriding principles stated above requires it. The judge should not engage in guidel-ineism, adjusting the sentence up or down just because the guidelines say so, as occurred in the instant ease, 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, just as judges did in the days of indeterminate sentencing before the mandatory federal sentencing guideline era.
The job of the Court of Appeals should be only to see that the federal sentencing judge (1) starts at the right place in the reasoning process (at the base offense level corresponding to the jury verdict or guilty plea), as required by the Sixth Amendment as interpreted by Blakely and Booker, and (2) engages in a general process of serious dialectical reflection and reconciliation, as evidenced by the reasons given for deviating from the starting point established under Sixth Amendment constraints. This process should put an end to the rote, ratcheting-up process that now characterizes the sentencing process, a process based on the Commission’s rule that mitigating factors are “not relevant.”
This modified system based on these two principles is, more or less, what the system would have looked like in the beginning if the Guidelines were truly “guidelines” rather than mandatory rules. If the Commission, in the beginning, as many judges and lawyers recommended, had adopted guidelines to assist judges rather than to discipline and correct judges this modified system would have perhaps provided a workable system. I myself testified before the Commission advising it not to saddle the judiciary with mandatory rules that are constitutionally suspect because such rules would most likely eliminate individualized sentencing and full consideration of mitigating factors. The Commission, however, believed that federal judges could not be trusted to exercise discretion properly and that harsher sentencing rules must be imposed on judges in order to insure longer sentences and collective uniformity. The current Guidelines that ratchet up sentences without considering mitigating factors or rehabilitation are the result.
The modified system described above is a different process of sentencing from either pure indeterminate sentencing, as it operated before the guidelines, or the mandatory, rote guideline process that prevailed before the Sixth Amendment was recognized as a limitation on fact finding. Hopefully, such a modified system would begin to provide a balance between the collectivized, sentencing process of lockstep, upward adjustments heretofore required by the Commission, and the thoughtful individual sentencing by federal judges that was the ideal behind the federal sentencing system used so effectively (in my opinion) for 200 years since the first Congress enacted the first sentencing law, 1 Stat. 112, ch. 9 (1790). The system of jury fact finding and individualized sentencing by judges enacted by the First Congress was the system developed to reconcile justice with mercy by our judicial forebearers as the English system of criminal law — developed particularly after the demise of the prerogative courts of Star *527Chamber and High Commission following the English civil war, the Glorious revolution of 1688, the English Bill of Rights of 1689, and the creation of an independent judiciary in the Judges’ Bills of 1692 and 1701. See Harold J. Berman, Law and Revolution II, The Impact of the Protestant Reformation on the Western Legal Tradition, 226-28, 306-29 (Harvard Univ. Press 2003); Blackstone, Commentaries on the Laws of England, Book IV, Chap. 29, 368-82 (Legal Classics Library Ed. 1983). The Sentencing Guidelines removed individualized sentencing by judges that had existed in Anglo-American law for more than three centuries.
Further, a system that incorporates facets of indeterminate sentencing preserves the historical role of judges as sentencing experts and the jury as fact finder. Sentencing procedures based on these roles were never challenged as undermining the Sixth Amendment’s or Article Ill’s right to a jury trial because judges did not function as objective fact finders and judge-found facts did not carry determinate consequences.
Such a modified system includes an element of democratic, legislative control over sentencing while keeping elements of individualized sentencing from the old system. Such a modified system will be strongly resisted by prosecutors and the Department of Justice officials who have now become accustomed to controlling sentencing through the charging process, the release of enhancement information to probation officers and plea bargaining. Back in my day as U.S. Attorney 40 years ago, prosecutors were viewed solely as parties to the ease and not entitled to control the length of the sentence. Removing control of sentencing from the prosecutorial arm of the government should be viewed as a step forward, although it is in reality a step back in history to restore the benefits of individualized sentencing practiced by English and American judges since the beginning of the 18th Century.
The modified scheme proposed above squares with the most recent Supreme Court decision, Gall v. United States, — U.S. —, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), in which the Court instructed district court judges to “make an individualized assessment based on the facts presented” with the Guidelines operating as the “initial benchmark” but “not the only consideration.” In Gall, the Supreme Court affirmed the district court’s sentence of thirty-six months probation, a punishment based upon the district judge’s individualized evaluation of the factors under 18 U.S.C. § 3553(a) — particularly rehabilitation — and rejected the appellate court’s rote application of the Guidelines. Moreover, this approach lessens the likelihood of as-applied Sixth Amendment challenges, which, as Justice Scalia points out, are still available. Id. at 602 (Scalia, J., concurring). Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above. The reviewing panel just goes along with the guideline program. Here both courts have simply, as the District Court candidly admitted but as the panel majority seems to want to deny, “deferred to the pronouncements of the Sentencing Commission through the sentencing guidelines.” (See footnote 1, supra.) The “irony” or paradox that my colleagues mention at the end of their opinion is really that the so-called major changes in law wrought by Blakely and Booker have, as Justice Souter suggests in Rita, “accomplished” nothing. See footnote 3, supra.
*528Hence, I would reverse and remand the case for resentencing in compliance with the two overriding principles stated above. The sentencing court should start with the guideline sentence corresponding to the jury verdict, take a look at how the guidelines would operate from that point and then engage in the weighing and explanatory process outlined above without feeling an obligation to reach a result consistent with the Commission’s guideline structure or policies. After finding the beginning guideline sentence, it is up to the judge to act like a common law judge of old engaged in the same process that prevailed in Anglo-American criminal law for 300 years before the failed, 20-year experiment in mandatory guideline sentencing.
. The Commission’s "not relevant” rule against consideration of a host of mitigating factors such as age, physical condition, education, employment, military, public service, good works, disadvantaged upbringing, addiction, mental illness, family ties, and rehabilitation possibilities are directly contrary to the Supreme Court’s interpretation of the Eighth Amendment in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), requiring states in sentencing to consider such mitigating factors. The Sentencing Commission, and now the federal courts at its direction, refuse to take into account the mitigating and humanizing factors that Lockett and Eddings require. There is no indication that any such factors were considered or influenced the sentence in this case.
. The empirical data on this point are clear. From 1990-2003, 90.6% of offenders received sentences adhering to the Guidelines range. In 2006, after Booker purportedly made the Guidelines "advisory,” 86.3% of offenders still received sentences in the Guidelines range, a range including judicial enhancements. Furthermore, appellate review of these within-Guidelines sentences has not changed post-Booker, as circuit courts have affirmed 99.9% of within-Guidelines sentences. Conversely, Circuit courts reversed below Guidelines sentences almost 85% of the time, while only reversing above-Guidelines sentences in less than 5% of the cases. See James Bilsborrow, Note, Sentencing Acquitted Conduct to the Post-Booker Dustbin, 49 Wm. & Mary L.Rev. 289, 314-15 (2007).
. See, for example, the separate opinions of Justice Stevens ("I am not blind to the fact” that “many federal judges continue to treat the Guidelines as virtually mandatory”); Justices Scalia and Thomas, ("no one knows— and perhaps no one is meant to know — how advisory Guidelines ... will function in practice”); Justice Souter ("consistency began to falter,” the "gravitational pull to now-discretionary Guidelines ... preserve the very feature ... that threaten to trivialize the jury right” so that it is "fair to ask just what has been accomplished”). See Rita, - U.S. -, 127 S.Ct 2456, 2474, 2475, 2487-88, 168 L.Ed.2d 203.