dissenting.
Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened — continuing under the pretext that the guidelines are only “advisory” instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or “guidelinitis,” the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.
Here we have a young, drug-addicted, black man dealing in cocaine. Born illegitimate in Nashville without a father figure, he was abandoned as a child and sent to Tennessee Preparatory School, a school for orphans, juvenile delinquents and other problem children. Tests showed some mental retardation as a child. He is now a sad case, with two small children of his own to support and a virtual lifetime in prison. By ratcheting up the sentence, as is typical under the guidelines, piling ag-gravator on aggravator, the District Court, in lock-step with the Nashville, Tennessee, U.S. Probation Office recommendations (as though Booker had never been decided), went from a base offense level of 32 with 10 criminal history points (corresponding to defendant’s guilty plea), carrying a penalty of 15 years, 8 months, to a sentence of 40 years — forty years in prison for a victimless drug crime. The District Court even made findings of fact not admitted by the defendant that triggered an additional mandatory minimum consecutive sentence of 10 years on top of all the other judicial findings of enhancements not admitted by the defendant. Most of the 40-year sentence imposed by the court was based on facts never admitted by the defendant or found by a jury.
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 refus*570al to seriously consider individual factors, including 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-tors 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.2 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 confíne 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, 549 U.S. 270, 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. It is still unclear, however, whether the Supreme Court is going to stay with or erode and then reject the clear holding of Blakely:
[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 *571without any additional findings. 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 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 Booker is inconsistent with this rule, and so the rule may be simply disregarded in practice.3 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, 549 U.S. 270, 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.4
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 de*572terrence, 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, 569, 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 factors and arguments in the weighing process in order to arrive at a fair sentence.
If judges or lawyers have any doubt about the limitation on judicial fact finding that the Blakely-Booker-Cunningham line of cases imposes on sentencing judges and the courts of appeals, they should carefully reread the Cunningham case decided a year ago. Six justices joined in the opinion. The 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 finding, 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, quoted above, 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, 159 L.Ed.2d 403. 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 jury 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 (emphasis in original) (Quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d. ed. 1872)).
Id. at 865. 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.
*573Id. 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:
Booker’s remedy for the federal guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless. [Footnote 15] 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.
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 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, 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, Booker, and Cunningham, 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 *574thoughtful 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, eh. 9 (1790).5 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 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 may 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 case 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 really 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, 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 590 (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 determinate sentence based on judicial fact finding, including a consecutive mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle of Blakely, Booker, and Cunningham a joke. Hence, *575I would reverse and remand the case for resentencing from the beginning in compliance with the two overriding principles stated above. The sentencing court should start with the guideline sentence corresponding to the guilty plea, 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 the federal system after 1790 but 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 *570Amendment 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.
. 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 there is no Supreme Court case that allows a court to use guideline enhancements to 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 yet clear what precisely it means or 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.
. 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.
. 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 Chamber 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.