concurring.
My colleagues decline to address the arguments that Avery raises for the first time in this court. But the State briefed these arguments and has not contested whether Avery could first raise them in his opposition to the State’s petition. The Blakely decision, by essentially throwing out many of the sentencing provisions in the prior code, has raised *964many legal issues. I think we should strive to resolve those issues as promptly as we can. The only reason to delay, that I can see, is the hope that we will be older and wiser in the future. My experience is that while the former is easy to accomplish, the latter has proven to be far more elusive. I would therefore resolve those issues.
The Blakely decision expressly exempts a defendant’s prior convictions from facts that had to be proven to a jury beyond a reasonable doubt in order to increase a defendant’s maximum sentence.1 Avery attacks the underpinnings of the prior conviction exception. He points out that the exception for prior convictions in Blakely relies on the United States Supreme Court’s holding in Almendá-rez-Torres2 Avery notes that Almendárez-Torres was a five-to-four decision over a strong dissent by Justices Scalia, Stevens, Souter, and Ginsburg.3 And recently in Shepard v. United States,4 Justice Thomas, who was a member of the Almendárez-Tor-res majority, suggested that Almendárez-Torres “has been eroded by this court’s subsequent Sixth Amendment jurisprudence, and a majority of the court now recognizes that Almendárez-Torres was wrongly decided.” 5 In addition, in Apprendi v. New Jersey, the Supreme Court questioned the validity of its Almendárez-Torres decision, but declined to address it because Apprendi did not contest that holding:
Even though it is arguable that Almendá-rez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decisions’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.[6 ]
Based upon this history, Avery argues that a majority of the justices on the Supreme Court have disavowed the Almendárez-Tor-res case, which permits the government to prove to the court a defendant’s prior convictions to enhance his sentence. He concludes that the Supreme Court will eventually overrule Almendárez-Torres and require the government to prove a defendant’s prior convictions to a jury beyond a reasonable doubt. He urges us to anticipate the Supreme Court’s ruling.
A number of courts have addressed the argument that Avery raises. They have rejected it. While acknowledging that there are doubts about Almendárez-Torres’s continuing validity, these courts have universally concluded that they must apply the Supreme Court’s precedent as it exists, rather than trying to anticipate what the Supreme Court might do in the future.7 I conclude that we should follow those decisions.
*965In a related argument, Avery argues that, under Alaska law, the aggravating factors were elements of his offense. Therefore, the State had to obtain an indictment from a grand jury and prove these aggravating factors to a jury beyond a reasonable doubt. Avery mainly relies on Donlun v. State.8
Donlun was charged in an indictment with burglary.9 But the statute under which Don-lun was charged provided for a sentence of 1 to 10 years for burglary in a dwelling, 1 to 15 years if the burglary occurred at night, and 1 to 20 years if the dwelling was occupied at the time of the burglary.10 Donlun was convicted of burglary and sentenced to 10 years with 4 years suspended.11 In sentencing Donlun, the court considered the facts that, when Donlun committed the burglary the dwelling was occupied and the offense occurred at night.12
The Alaska Supreme Court held that the facts that the burglary occurred during the nighttime and that the dwelling was occupied were elements of the offense. Therefore, in order to sentence Donlun to the higher penalties for burglary based upon these facts, the State needed to have a grand jury indict based upon these facts and prove them to a jury beyond a reasonable doubt.13 The court recognized that Donlun had received a sentence of less than 10 years for his offense. But the court concluded that the trial court should resentence Donlun with the recognition that the maximum sentence for his offense was not 20 years but 10.14 The court remanded for resentencing.
The Alaska Supreme Court extensively discussed Donlun in State v. Malloy.15 But the supreme court pointed out that, in Don-lun, the facts that the defendant committed the crime during the nighttime and in an occupied dwelling were elements of the burglary offense. The supreme court specifically stated that it declined “to expand the Donlun rule under the Alaska Constitution to prohibit presumptive or mandatory sentencing factors as long as those factors simply guide or limit a sentencing court’s discretion within the existing statutory sentencing range for the offense at issue.”16 Therefore, the supreme court suggested that Donlun did not apply to prohibit presumptive sentencing. I accordingly conclude that there is no merit to Avery’s argument that Alaska law precluded the State from proving the aggravating factors because the State did not present these aggravating factors to a grand jury or trial jury.
. Blakely, 542 U.S. at 301, 124 S.Ct. at 2536 (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).
. Almendárez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
. 523 U.S. at 248-71, 118 S.Ct. at 1233-44.
. 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
. Shepard, 544 U.S. at-, 125 S.Ct. at 1264 (Thomas, J., concurring).
6. Apprendi, 530 U.S. at 489-90, 120 S.Ct. at 2362 (footnote omitted).
. See United States v. Rodriguez-Montelongo, 263 F.3d 429, 434 (5th Cir.2001) (noting that although Apprendi cast serious doubt on Almendá-rez-Torres's validity, the Supreme Court did not overrule it and it is for the Court of Appeals "to apply the law as it exists and for the Supreme Court to overrule its precedent if it so chooses. '[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.’ ") (citations omitted); United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001) (addressing the continuing viability of Almendárez-Torres, the court applied the prior conviction exemption and determining that "[i]t is our role to apply Supreme Court precedent as it stands, and not as it may develop.”); United States v. Losoya-Mancias, 332 F.Supp.2d 1261, 1265 (D.N.D.2004) (recognizing that both Apprendi and Blakely question the soundness of Almendárez-Torres, but finding that Almendárez-Torres prior conviction exception is still the law of the land until the Supreme Court chooses to overrule it); United States v. Gebele, 117 F.Supp.2d 540, 548-49 (W.D.Va.2000) (holding that because Almendá-rez-Torres has not been overruled, the fact that a majority of the court expresses doubt as to its validity does not affect its status as controlling *965law, and therefore the court cannot simply ignore the rule therein by simply " ‘counting Justices' or by speculating about what the Supreme Court might do in the future”); People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, 198 (2005) (noting that the prior conviction exception has been repeatedly reaffirmed by the Supreme Court, and ‘‘[a]lthough a majority of the present Justices of the Supreme Court have expressed disagreement with Almenddrez-Torres, we recognize that Court's obvious prerogative to overrule its own decisions and we therefore follow Almenddrez-Torres until the Supreme Court rules otherwise.”) (citations omitted).
. 527 P.2d 472 (Alaska 1974).
. Id. at 474.
. Id.
. Id. at 473.
. Id.
. Id. at 474.
. Id.
. 46 P.3d 949, 953-56 (Alaska 2002).
. Id. at 957.