with whom WARDLAW, Circuit Judge, joins, and O’SCANNLAIN and BEA, Circuit Judges, join in part, concurring in part and dissenting in part:
I concur in Parts I and V of the majority opinion, and in the judgment vacating *1101Ameline’s sentence and remanding for the district court to give Ameline a new sentencing hearing consistent with our precedent in United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). I also concur in Judge Wardlaw’s partial concurrence and partial dissent concerning the proper approach under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but write separately to elaborate my views.
I
The relief of resentencing for Ameline is required by Howard, 894 F.2d at 1090, and by the government’s concession of error.1 An imprisoned person who shows a right to relief on appeal must receive it in due measure, else due process is not satisfied. See Hicks v. Oklahoma, 447 U.S. 343, 347, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980) (holding that state appellate court deprived petitioner of liberty without due process of law by “simply affirm[ing] the sentence imposed ... under the invalid mandatory [sentencing] statute”); see also Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (“[D]ue process .... expresses the requirement of ‘fundamental fairness.’ ”).
II
Although I join Judge Wardlaw’s dissent concerning our procedures following Booker, I write separately to express my own views in disagreement with the majority’s “limited remand” approach derived from the Second Circuit’s United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir.2005). I think it wrong to delegate to the district courts the task of determining whether a defendant’s substantial rights have been affected, because this is contrary to the Supreme Court’s precedents on the plain error standard of review.
Our review is for plain error because Ameline did not object during his sentencing hearing on the ground that the mandatory Guidelines or the procedures used to determine the material sentencing facts were unconstitutional. See United States v. Cotton, 535 U.S. 625, 628-29, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). A defendant seeking relief under the plain error standard must show that there was:
(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error *1102seriously affectfs] the fairness, integrity, or public reputation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alterations in original) (internal quotation marks and citation omitted); see also United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004).
I agree with the majority’s analysis of the first, second and fourth prongs of the plain error test. The first prong is met because Ameline’s Sixth Amendment rights as construed in Booker were violated by the district court’s imposition of a sentence that was enhanced based upon judicial fact-finding and was selected under a mandatory Guidelines system. See United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“Deviation from a legal rule is ‘error’ unless the rule has been waived.”); Maj. Op. at 1078.
The second prong is met because it is clear after Booker that, given the mandatory nature of the Guidelines at the time of Ameline’s sentencing, increasing Ameline’s punishment based on facts not admitted by him or determined by a jury beyond a reasonable doubt was contrary to his Sixth Amendment rights. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“[Wjhere the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,j it is enough that an error be ‘plain’ at the time of appellate consideration.”); Maj. Op. at 1078.
The fourth prong of the test, which limits our discretion to notice forfeited Booker errors to cases where the errors seriously affected the fairness and integrity of the defendants’ sentencing proceedings, Johnson, 520 U.S. at 467, 117 S.Ct. 1544, is met because “it is a miscarriage of justice to give a person an illegal sentence, just as it is to convict an innocent person.” Maj. Op. at 1081 (citing United States v. Paladino, 401 F.3d 471, 483 (7th Cir.2005)).
However, the majority errs in its analysis of the third prong of the plain error inquiry, and the majority’s departure from our traditional appellate role may have negative implications for many cases. The majority follows the Second Circuit’s “limited remand” approach, delegating to the district courts the task of determining whether a defendant’s substantial rights have been affected. Crosby, 397 F.3d at 117-18. I cannot accept the majority’s decision to adopt this approach, because it is inconsistent with the Supreme Court’s precedents on what is required to satisfy the “substantial rights” test.
For an error to affect “substantial rights,” it “must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. To carry this burden, the “defendant must ... satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004) (internal quotation marks omitted) (holding that defendant claiming that plain Rule 11 error affected his substantial rights “must show a reasonable probability that, but for the error, he would not have entered the plea.”).
Applying Dominguez Benitez’s substantial rights test in the Booker context, the Eleventh Circuit explained that “[t]he prejudice inquiry must focus on what has to be changed to remedy the error.” United States v. Rodriguez, 398 F.3d 1291, 1303 (11th Cir.2005). I agree. The Su*1103preme Court made clear in Booker • that the error in pre-Booker sentencing cases is not simply that sentences were enhanced based on judge-found facts, but that judge-found facts were used to arrive at Guidelines sentences that were binding on the district courts. 125 S.Ct. at 750 (Stevens, J., Op. of the Ct.) (“If the Guidelines as currently written could be read as merely advisory provisions ... their use would not implicate the Sixth Amendment.”); id. at 764 (Breyer, J., Op. of the Ct.) (“With these two sections [that make the Guidelines mandatory] excised, the remainder of the Act satisfies the Court’s constitutional requirements.”). Thus, our assessment of the prejudicial effect of a Booker error turns on whether the record reflects that there is a “reasonable probability” that the outcome of Ameline’s sentencing proceeding would have been different if the district court had considered the Guidelines to be advisory when sentencing, rather than on the mere fact that Ameline’s sentence was enhanced based on judicial findings of fact. See United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005) (holding that under substantial rights prong court must inquire whether outcome of sentencing proceeding would have been different if sentencing judge had considered the Guidelines advisory); Paladino, 401 F.3d at 483 (same); United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005) (same); Rodriguez, 398 F.3d at 1301 (same); Crosby, 397 F.3d at 117-18 (same). But see United States v. Davis, 407 F.3d 162, 163 (3d Cir.2005) (holding that defendant can meet substantial rights prong by showing either that sentence was enhanced based on judge-found facts or that the district court erroneously believed Guidelines were mandatory at time of sentencing); United States v. Hughes, 401 F.3d 540, 548-49 (4th Cir.2005) (holding that substantial rights prong was satisfied because defendant’s sentence was increased beyond the sentence supported by the facts found by the jury or admitted by defendant); United States v. Oliver, 397 F.3d 369, 379-80 (6th Cir.2005) (same).
Ameline’s substantial rights were affected because extra-verdict facts were used to enhance his sentence under Guidelines thought to be mandatory. At the time of his sentencing, which took place before Booker restored sentencing discretion to the district courts, Ameline challenged the amount of methamphetamine that the government sought to use in calculating his base offense level. This was Ameline’s first drug conviction,2 and Ameline expressed remorse for his wrongdoing.
Then there is the procedural error that affected Ameline’s sentencing hearing. The district court, contrary to our holding in Howard, 894 F.2d at 1090, placed the burden on Ameline to disprove the drug quantities attributed to him in the Presen-tence Report. Had the district court required the government to meet its burden of proof to establish the factual predicate for the' amount of methamphetamine it attributed to Ameline for purposes of determining the base offense level under U.S.S.G. § 2D1.1, the district court may have attributed a lesser drug quantity to Ameline. This is especially so, in light of the multiple layers of hearsay Ameline alleged that the district court relied upon in making its drug quantity determination. Maj. Op. at 1076. A lesser drug quantity in turn might have led the district court to use an entirely different Guidelines range, and may have also prompted the district court to exercise discretion, if any were available, to give Ameline a lighter sentence.
Indeed, the district court stated at Ame-line’s sentencing hearing that it was *1104“somewhat baffl[ed]” by Ameline’s “election to engage in this very serious and extremely detrimental-to-the-community conduct” because of Ameline’s “history and the fact that [he was] of an age that [he was], and ha[d] in some ways held [him]self out as a responsible individual.” That the district court expressed surprise that Ameline had trafficked in the large quantities of methamphetamine attributed to him by the Presentence Report bolsters the conclusion that there is a reasonable probability that the outcome of Ameline’s sentencing proceeding would have been different if the district court had used the proper factfinding procedure and had not been bound by the Guidelines at the time of sentencing.
The government argues that Ameline cannot show a reasonable probability that he would have received a different sentence if the Guidelines had been discretionary at the time of his sentencing because the district court’s comments suggested that the court deliberately opted not to exercise even the limited discretion that it had under the mandatory Guidelines, and instead imposed a sentence in the middle of the applicable Guidelines range after considering the circumstances of Ameline’s offense conduct. In fashioning its sentence, the district court noted that Ame-line’s conduct had allegedly involved “multiple transactions of distribution of [an] unlawful substance ... over an extended period of time,” and expressed its view that this conduct was “very serious and extremely detrimental to the community” and “without question ... hurt ... many people.”
While we should not minimize the seriousness of Ameline’s wrongful conduct, these statements by the district court could be used to describe the heartland of any drug offense. In addition, it is a non sequitur for the government to argue that we can discern, from Ameline’s middle-of-the-Guidelines-range sentence, whether the district court would have imposed the same sentence if free of the mandatory nature of the Guidelines. It is equally as likely that the district court had a policy of consistently sentencing in the middle of the Guidelines range. See United States v. Barnett, 398 F.3d 516, 528 (6th Cir.2005) (“That the district court chose to sentence Barnett in the middle of [the mandatory Guidelines] range does not necessarily suggest that the district court would now feel that 265 months of imprisonment is the proper sentence for Barnett. Nor does it suggest that the court would not have sentenced Barnett to a lower sentence if it had the discretion, which it does now, to apply the Guidelines in an advisory fashion.”).
I acknowledge that we cannot be certain what sentence the district court would have imposed had it treated the Guidelines as advisory only. As some of our sister circuits have already pointed out, “We just don’t know.” Rodriguez, 398 F.3d at 1301; see also Paladino, 401 F.3d at 483; Crosby, 397 F.3d at 118. The sentencing record often does not reflect the subtleties that may influence the district court’s sentencing discretion or how the human dynamics of a sentencing hearing may influence the court’s ultimate sentencing decision. Absent an express statement by the district court that it would have either sentenced a defendant more favorably or reached the same result if the Guidelines were not mandatory, we can never be certain how any particular district court would have exercised discretionary sentencing authority.
However, I disagree with the reasoning of those who favor a blanket approach to handling Booker plain error cases (whether they advocate denying relief or remanding in all cases) because of this uncertainty, for certainty has never been required *1105to satisfy the prejudice inquiry in the context of plain error review. Rather, all that is required is that there be a “reasonable probability” that the error complained of affected the outcome of the proceedings. Dominguez Benitez, 124 S.Ct. at 2340.
Specifically with respect to a blanket denial rule such as the one urged by the government, it would be most unfair and unreasonable for us to ground our prejudice analysis on the fortuity of whether a defendant was sentenced by a particular sentencing judge who openly criticized the Guidelines or indicated that they were unduly harsh as applied to a particular defendant rather than one who felt constrained quietly to follow the law. Our judicial system is predicated on judges following the law and, so far as is humanly possible, keeping their personal opinions to themselves. See Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 717 (9th Cir.1997) (Norris, J., dissenting from denial of reh’g en banc) (quoting Planned Parenthood v. Casey, 505 U.S. 833, 868, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)) (O’Connor, Souter & Kennedy, JJ., joint op.) (“It is the responsibility of all federal judges ... to ‘struggle to accept’ [the burden of rendering decisions of which they disapprove] .... ‘because [we] respect the rule of law.’ ”).3 And before Booker, we consistently required sentencing courts to comply with the mandates of the Guidelines. See, e.g., United States v. Chastain, 84 F.3d 321, 323-26 (9th Cir.1996); United States v. Vilchez, 967 F.2d 1351, 1355 (9th Cir.1992). “This well-established case law substantially undermined any need or incentive for sentencing courts pre-Booker to note their objections and reservations in sentencing defendants under the then-mandatory Guidelines.” Barnett, 398 F.3d at 529. Given these realities, we cannot now require defendants seeking to establish that their substantial rights have been affected by Booker error to present us with these types of statements, which sentencing courts had no reason to make on the record under our prior case law. Cf. Antonakopoulos, 399 F.3d at 81 (“The existence of prejudice should not turn on how vocal the district judge was.”). I would hold that Ameline has met his burden of showing that there is a reasonable probability that he would have received a different sentence if the district court had considered the Guidelines to be advisory when sentencing, notwithstanding that there is no affirmative statement by the district court to this effect.
The majority, however, does not express any holding on whether the substantial rights requirement has been satisfied here in Ameline’s case. Instead the majority follows the Second Circuit in instituting a blanket “limited remand” rule for cases involving unpreserved Booker error where there is no clear statement from the district court in the record about what it would do if the Guidelines were merely advisory. Under this approach, all such cases will be remanded so that the district court can consider whether it would have imposed the same sentence if the Guidelines had been advisory at the time of *1106sentencing. Maj. Op. at 1079; Crosby, 397 F.3d at 117-18. If the district court concludes that the sentence would have been the same, there is no prejudice to the defendant, and the initial sentence stands. Maj. Op. at 1078-79; Crosby, 397 F.3d at 117. But if the district court determines that it would have given the defendant a materially different sentence under the Booker rules, then the defendant’s substantial rights were affected by the error, and he or she is entitled to resentencing. Maj. Op. at 1079; Crosby, 397 F.3d at 117. This “ask the district court” approach is wrong for many reasons.
First, I do not see how we can justify adopting a bright-line, “one size fits all” rule if we truly are “to apply [the] ordinary prudential doctrine! ]” of plain error review, as Justice Breyer’s remedial opinion in Booker admonished us to do. 125 S.Ct. at 769; see also Paladino, 401 F.3d at 487 (Ripple, J., dissenting from denial of reh’g en banc) (“The panel decision today [adopting limited remand bright-line rule for Booker cases] offers a superficially pragmatic, but not a principled, basis for adopting its novel approach to plain error analysis.”). In United States v. Young, the Supreme Court declared that “[a] per se approach to plain-error review is flawed.” 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The Court further stressed that “when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record,” and that “it is particularly important for appellate courts ... not to extract from episodes in isolation abstract questions of evidence and procedure” because “[t]o turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.” Id. at 16, 105 S.Ct. 1038.
Most recently, in Dominguez Benitez, the Supreme Court reemphasized the necessity of a case-by-case, fact-intensive approach to the prejudice inquiry of the plain error test, by stating that a defendant seeking reversal for unpreserved Rule 11 error “must thus satisfy the judgment of the reviewing court, informed by the entire record, that the” error affected his or her substantial rights. 124 S.Ct. at 2340 (emphasis added). The Court thus rejected the standard this circuit had used in deciding whether a defendant was prejudiced by Rule 11 error because that standard “d[id] not allow consideration of any record evidence tending to show that a misunderstanding [occasioned by the error] was inconsequential to a defendant’s decision, or evidence indicating the relative significance of other facts that may have borne on his choice regardless of any Rule 11 error.” Id. at 2341. The majority’s blanket rule for pre-Booker cases involving unpreserved Booker errors cannot be reconciled with these Supreme Court cases requiring case-specific assessments of prejudice in the context of plain error review.
Second, the majority’s decision to remand for the district courts to make substantial rights determinations conflicts with the guidance of Booker, which expressly instructs that it is the duty of “reviewing courts,” not district courts, to determine whether a sentencing error was plain. Booker, 125 S.Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test.”); see also Mares, 402 F.3d at 522 (“[W]e find no support for [the limited remand] approach in the Supreme Court plain error cases. Those cases place the obligation on the appellate courts — rather than the district courts — to determine the third prong of the plain error test.”); Rodriguez, 398 *1107F.3d at 1305 (“The determination of plain error is the duty of courts of appeal, not district courts.”). Even before Booker, the Supreme Court consistently indicated that plain error review should occur at the appellate level, see, e.g., Dominguez Benitez, 124 S.Ct. at 2340 (explaining that -under the plain error standard, “[a] defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding”) (emphasis added); United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that under the plain error standard, “a reviewing court may consult the whole record when considering the effect of any error on substantial rights”) (emphasis added), and there is nothing in Booker that “suggests] that this accepted practice must change in the wake of Booker,” United States v. Milan, 398 F.3d 445, 454 (6th Cir.2005). On the contrary, the Supreme Court in Booker emphasized that “ordinary” plain error rules should apply. 125 S.Ct. at 769.
Tracking Crosby’s rationale, the majority points to 18 U.S.C. § 3742(f) as authority for its assertion that the limited remand option “is available for election by an appellate court assessing [plain] error [in sentencing],” reasoning that “the power to remand for resentencing [under 18 U.S.C. § 3742(f)] necessarily encompasses the lesser power to order a limited remand” to permit the sentencing judge to determine whether the third prong of the plain error inquiry is met. Maj. Op. at 1079 (citing Crosby, 397 F.3d at 117-18). But the Eleventh Circuit has already observed that this “conclusion does not follow at all,” because “[i]n cases of non-preserved error appellate courts lack the authority to remand for resentencing where the requirements of the plain error rule have not been met.” Rodriguez, 398 F.3d at 1306. Assuming that the greater power to remand for resentencing does include the lesser power to do a limited remand, the majority puts the cart before the horse by seeking to justify a limited remand for the district court to determine the substantial rights issue on the ground that this power is encompassed by its power to do a full remand, when the majority cannot exercise full remand power unless and until all four requirements of the plain error test are satisfied. Even the plain language of § 3742(f), the subsection on which, the majority relies, conditions the power to “remand the case for further sentencing proceedings” on “the court of appeals determining] that ... the sentence was imposed in violation of law.” 18 U.S.C. § 3742(f)(1) (emphasis added).
The majority’s attempt to bring this case within the •' rule recited in United States v. Gunning, 401 F.3d 1145 (9th Cir.2005), about our ability to limit the scope of issues on remand, is unpersuasive. Maj. Op. at 1079-80. In Gunning, we ordered a limited remand on the issue of the defendant-appellant’s eligibility for a minor role adjustment under the Sentencing Guidelines because we could not discern from the record whether that issue had been considered by the district court. 401 F.3d at 1146, 1148. But remanding in a particular case on an issue properly raised in the first instance at the district court level so that we might develop the record we need to dispose of an appeal is one thing. Establishing a general rule that requires remands in countless cases where we already have a record so that the district courts can handle the disposition of sentencing appeals themselves is quite another. Gunning is inapposite because the majority is not asking the district courts to provide us with additional information to aid our review of an issue that initially should have been raised at the district court level. Rather it is asking *1108the district courts to conduct the plain error inquiry in our stead, applying what has always been an appellate standard of review to sentences they themselves had imposed. Maj. Op. at 1079.
Third, the majority argues that we should ask the sentencing judges what they would have done under advisory Guidelines because we cannot otherwise know whether defendants’ rights were substantially affected by Booker errors. Maj. Op. at 1080-81 (expressing preference for limited remand option because it “yields a result that is certain”); id. at 1082-83. But this argument rests on the faulty premise that courts reviewing for plain Booker error must be able to determine prejudice to defendants asserting such error with certainty. As noted above, all that the Supreme Court requires in the context of plain error review is a “reasonable probability” of prejudice, Dominguez Benitez, 124 S.Ct. at 2340.
To illuminate this point, we can look not only to what the Supreme Court has said about the prejudice inquiry under the plain error test, but also to what it has done in the analogous context of conducting harmless error review of district court errors in sentencing under the Guidelines. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 (explaining that the plain error standard “normally requires the same kind of inquiry” as the harmless error standard except that the burden of persuasion is on the defendant instead of the government). In Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court invalidated some of the factors that the district court had relied on to depart from the applicable sentencing range under the Guidelines. The Supreme Court then evaluated the record before it to determine if the error was harmless, and remanded for resentencing because “it [wa]s not evident [from the record] that the [district] court would have imposed the same sentence if it had relied only on [permissible grounds for departure].” Id. at 113-14, 116 S.Ct. 2035; see also Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (same). Despite that there was no way for the Supreme Court to be certain whether the district court would or would not have sentenced the defendant differently, the Court notably did not remand for the district court’s input on whether the defendant’s substantial rights were affected by the error.
Finally, the majority’s rule does not effectively advance the purposes of the plain error doctrine to promote the efficient administration of justice while ensuring that the gravest injustices do not go unchecked. As the Supreme Court explained in Young, the plain error standard provides a “careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” 470 U.S. at 15, 105 S.Ct. 1038; see also United States v. Wilson, 237 F.3d 827, 836 (7th Cir.2001) (“The plain-error standard, which we are required to apply when a district court has not been given the first opportunity to correct alleged mistakes, strikes a balance among the proper functioning of the adversary system, efficiency in managing litigation, and the demands of justice.”) (internal citation omitted).
Although the majority’s per se rule delegating the substantial rights inquiry to the district courts might make our task of reviewing pre-Booker plain error cases easier at the outset, it regrettably may prove to be a less efficient approach in the long run than performing traditional case-by-case plain error review at the appellate level. Under the limited remand approach, a district court will have to “obtain the views of counsel, at least in writing,” so *1109attorneys can reargue sentencing issues as they would have if Booker had been the law at the time of the original sentencing. Maj. Op. at 1084; Crosby, 397 F.3d at 120. The district court will next evaluate the record as supplemented by the attorneys’ arguments, and then, treating the Guidelines as discretionary, will decide if it would impose a materially different sentence. Maj. Op. at 1081; Crosby, 397 F.3d at 120. As the Eleventh Circuit observed in Rodriguez, this rule “essentially requires resentencing [albeit with truncated procedures] in order to determine whether resentencing is required,” and then “add[s] the real possibility of another appeal and another remand on top of that,” because the parties retain the right to appeal the district court’s decision on whether it would have imposed a different sentence under an advisory sentencing system. 398 F.3d at 1305; see also Mares, 402 F.3d at 522 (agreeing with the Eleventh Circuit that the limited remand approach “has the potential of producing many needless remands and appeals from those remands,” and voicing the belief that “the Supreme Court sought to avoid these extra steps in the judicial process by requiring appellate courts to answer all prongs of the plain error test”).
Not only is the majority’s rule unlikely to increase our efficiency in processing Booker plain error cases, it provides inadequate protection for those defendants with valid plain error claims. If we were to apply plain error review at the appellate level as the Supreme Court’s precedents direct us to do, we would narrow the pool of cases for remand to those where the record demonstrates that there was a reasonable probability the defendant would have received a different sentence if the district court could have exercised discretion in sentencing. Because we would vacate the original sentences in such cases and require the district court to resentence in accordance with Booker, those defendants would get the full benefit of the Supreme Court’s ruling. Thus application of traditional plain error review in this context of forfeited Booker error would properly ensure that judicial resources are only expended for resentencing in cases involving miscarriages of justice that plainly warrant correction, while also ensuring that the defendants in those select cases will be sentenced in a manner that does not violate their constitutional rights as construed by the Supreme Court in Booker.
With its limited remand approach to plain error review, the majority decrees that every pre-Booker defendant asserting plain error will receive a “quick look” at the district court level. But the risk of this widespread remedy is that those defendants that actually have plainly erroneous sentences might not get the full attention that they deserve. Judge Ripple from the Seventh Circuit articulated this concern persuasively in his dissent from the Seventh Circuit’s decision to adopt the same type of limited remand rule, stating that such an approach “[i]n all too many instances ... will serve as an invitation for the district court to give only a superficial look at the earlier unconstitutionally-imposed sentence,” and that “[t]he constitutional right at stake hardly is vindicated by a looks-all-right-to-me assessment by a busy district court.” Paladino, 401 F.3d at 486 (Ripple, J., dissenting from denial of reh’g en banc).
The majority claims that it is reluctant to speculate as to what the district court would have done under the Booker rules, but the solution the majority adopts does not really address this concern because the majority in essence is asking the district court to speculate in its stead. The inescapable reality is that:
Until the district court undertakes a new sentencing process — cognizant of the *1110freedom to impose any sentence it deems appropriate as long as the applicable guidelines range and the 18 U.S.C. § 3553(a) factors are considered-the district court cannot accurately assess whether and how its discretion ought to be exercised. The panel’s holding requires the [district] court to pre-judge and to pre-evaluate evidence it has not heard.
Id.
Because “the universe of factors that guides sentencing is larger than it was pre-Booker,” id. at 488 (Kanne, J., dissenting from denial of reh’g en banc), there are many issues that defendants before Booker might not have raised or emphasized at their original sentencing hearings that the district courts can now freely consider under the advisory Guidelines system. Requiring the district court to obtain the views of counsel in writing does not make the abbreviated process outlined by the majority an adequate substitute for the sentencing process mandated by Booker. Sentencing involves “subtle issues as to how much emphasis ought to be given to particular facts and circumstances” that can be resolved “competently only after hearing witnesses and seeing the evidence.” Id. at 486 (Ripple, J., dissenting from denial of reh’g en banc). Additionally, a district judge reviewing a cold, incomplete record supplemented by written arguments does not have the benefit of evaluating the relevant facts in the context of the human dynamics that come into play during sentencing hearings. In short, it is hard to see how even the original sentencing judges would be able to give an accurate assessment of how they would have acted had the Guidelines been advisory when they were sentencing pre-Booker defendants. We gain little by delegating to the district courts our duty as appellate judges to conduct plain error review, because the limited remand approach is neither more efficient nor more accurate than the conventional approach in determining whether a defendant’s substantial rights have been affected by sentencing error.
I respectfully dissent.
. The government during the en banc oral argument explicitly conceded that Howard required resentencing for Ameline:
Q: How do you deal with ... the fact that the district court put the burden on Ameline to disprove what was in the Presentence Report? I mean, isn't that a fundamental mistake that means whatever else is the grand architecture of post-Booker sentencing and what we do with it, that Mr. Ame-line deserves another hearing?
A: Yes. The district court in this case made an error [in shifting the burden of proof at sentencing to Ameline] that is totally separate and apart from the larger plain error questions on which this court granted rehearing en banc.... I agree that the case should go back for that reason because a starting point of discretionary sentencing with advisory Guidelines is a correctly calculated Guidelines range using the appropriate principles of judicial fact-finding.
Q: Your argument is that we can't simply affirm on the basis of this record in this context?
A: I would be reluctant to suggest that the Court should affirm because it’s the government’s position that in order for a court to have a properly-implemented advisory Guidelines sentence it needs to do the right procedural things in calculating the Guidelines sentence. And although it's conceivable that the court could find that the judge's error in shifting the burden to the defendant was ultimately in itself harmless.... I would acknowledge that at the outset of the hearing the judge said things about giving the PSR presumptive credence that probably went over the line.
. Ameline only had one prior conviction in 1997 for “Issuing a Bad Check.”
. As Justice Potter Stewart sagely observed during a press conference at the Supreme Court at the time of his retirement:
[ T]he mark of a good Justice or any judge is one whose Opinions you can read and, after you have read them, you have no idea whether the judge was a man or a woman, a Republican or a Democrat, a Christian or a Jew, or — if a Christian, a Protestant or Catholic. You just know that he or she was a good judge.
It is the first duty of a judge to remove from his judicial work his own social and philosophical and political or religious beliefs, and not to think of himself as being here as some great philosopher-king to just apply his own ideology.
Barrett McGurn, America's Court: The Supreme Court and the People 105 (1997).