dissenting.
In October 2002, Petitioner-Appellant Thomas Albert Nichols received a sentence of 405 months of imprisonment under the then-mandatory United States Sentencing Guidelines. Nichols’s Guidelines range was enhanced based on facts found solely by the sentencing judge. Even though, at the time of Nichols’s sentencing, the constitutionality of the Guidelines had been called into serious question by a majority of the Justices in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Nichols’s counsel made no Apprendi objection before the sentencing court. Even though, while Nichols’s direct appeal was still pending, the Supreme Court granted certiorari in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to determine whether Apprendi applied to determinate statutory sentencing schemes, Nichols’s counsel failed to raise any Apprendi argument during Nichols’s appeal. Finally, even though Nichols could have filed a timely petition for rehearing when the Supreme Court decided Blakely, Nichols’s counsel failed to file either a petition for rehearing in this court or a petition for certiorari. As a result of his counsel’s failure to make any argument at any point that Nichols was sentenced in violation of the Sixth Amendment, Nichols’s sentence became final before the Supreme Court held in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that increasing a defendant’s mandatory Guidelines range based on judge-found facts violates the Sixth Amendment right to a jury trial. The attorney for Nichols’s codefendant Carlton Smith, on the other hand, did file a petition for rehearing and a petition for certiorari in light of Blakely, and Smith’s sentence was reduced on remand.
Nichols now argues that, based on Apprendi Blakely, and the Supreme Court’s grant of certiorari in Booker, his counsel should have raised Sixth Amendment challenges to the sentencing enhancements at various stages of his trial and appeal. Because this case presents a unique combination of circumstances in which Apprendi followed by the Supreme Court’s grant of certiorari in Blakely, cast the constitutionality of the Guidelines into serious doubt, and where the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to Nichols’s sentence.
Claims of ineffective assistance of counsel are analyzed under the familiar two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient.” Id. at 687, 104 S.Ct. 2052. “Second, the defendant must show that the *254deficient performance prejudiced the defense.” Id.
Nichols argues that his counsel performed deficiently by failing to argue either at his sentencing or on appeal that the enhancements to his then-mandatory Guidelines range violated the Sixth Amendment. To show that his counsel’s performance was deficient, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052.
There is no question that, had Nichols been sentenced according to mandatory Guidelines after Booker was decided, his claim would be meritorious. The district court increased Nichols’s Guidelines range based on judge-found facts — for example, the two-point enhancements for vulnerability of a victim and use of a child in the course of the offense, both based solely on judge-found facts, increased Nichols’s Guidelines range from between 262 and 327 months in prison to between 360 months and life in prison. See U.S. Sentencing Guidelines Manual ch. 3, pt. A. (2001). The district court applied as mandatory Nichols’s Guidelines range of 360 months to life in prison, ultimately sentencing Nichols to 405 months in prison. Had Nichols been sentenced after Booker was decided, it would be clear that the district court erred by sentencing Nichols using a mandatory Guidelines range based on judge-found facts, and it would be equally clear that Nichols’s counsel performed deficiently by not objecting to and then appealing the district court’s sentencing determination.
Of course, Nichols was not sentenced after Booker was decided; Nichols was sentenced on October 11, 2002, over two years before the Supreme Court’s decision in Booker. Usually, a later change in the law will not render an attorney’s earlier performance deficient. “ ‘Only in a rare case’ will a court find ineffective assistance of counsel based upon a trial attorney’s failure to make an objection that would have been overruled under then-prevailing law.” Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir.1999) (internal citation omitted). We have previously noted that one of those “rare cases” can arise when counsel “fail[s] to raise an issue whose resolution is clearly foreshadowed by existing.” Lucas, 179 F.3d at 420. I believe that this case presents another of those “rare cases.”
Beginning prior to Nichols’s sentencing and continuing throughout the pendency of his appeal, a major shift was occurring in the Supreme Court’s sentencing jurisprudence. First, in Apprendi v. New Jersey, the Supreme Court determined that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. At the time, a number of commentators suggested that the federal Sentencing Guidelines might not survive Apprendi. See, e.g., Susan N. Herman, Applying Apprendi to the Federal Sentencing Guidelines: You Say You Want a Revolution?, 87 Iowa L.Rev. 615, 621-25 (2002); Jeffrey Standen, The End of the Era of Sentencing Guidelines: Apprendi v. New Jersey, 87 Iowa L.Rev. 775, 796-97 (2002); Freya Russell, Casenote, Limiting the Use of Acquitted and Uncharged Conduct at Sentencing: Apprendi v. New Jersey and Its Effect on the Relevant Conduct Provision of the United States Sentencing Guidelines, 89 Cal.L.Rev. 1199, 1224-29 (2001); Note, The Unconstitutionality of Determinate Sen*255tencing in Light of the Supreme Court’s “Elements” Jurisprudence, 117 Harv.L.Rev. 1236, 1249-1254 (2004). More important, a majority of the Justices themselves made clear that the federal Sentencing Guidelines stood on uncertain ground in the wake of Apprendi; the four dissenting Justices suggested that application of the majority’s reasoning in Apprendi would require striking down the Guidelines, Apprendi, 530 U.S. at 544, 551-52, 120 S.Ct. 2348 (O’Connor, J., dissenting), and one concurring Justice suggested that he himself might apply Apprendi to invalidate the Guidelines, id. at 523 n. 11, 120 S.Ct. 2348 (Thomas, J., concurring).
In October 2003, before oral argument in Nichols’s direct appeal, the Supreme Court granted certiorari in Blakely v. Washington on the question of whether a fact necessary for an upward departure from Washington’s statutory standard sentencing range must be proved according to the procedures mandated by Apprendi, indicating to all that the Supreme Court soon would consider whether the Sixth Amendment prohibits the use of judge-found facts to increase a mandatory guidelines range. On June 24, 2004, while Nichols still could have filed a timely petition for rehearing before this court, the Supreme Court answered this question in the affirmative in Blakely, holding 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.” 542 U.S. at 303, 124 S.Ct. 2531 (citing Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). The next day, the New York Times ran a front-page article on the Blakely decision, noting that “ ‘[tjhere is nothing to suggest that the federal guidelines would get different treatment.’ ” Linda Greenhouse, Justices, in Bitter 5-4 Split, Raise Doubts on Sentencing Guidelines, N.Y. Times, June 25, 2004, at A1 (quoting Professor Stephen Bibas).
With the future state of the law so uncertain post-Apprendi, I believe that any counsel whose performance satisfied an “objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, would have at least been cognizant of possible applications of Apprendi to challenge the federal Sentencing Guidelines and the necessity of preserving those challenges in case the Supreme Court struck down the Guidelines while the defendant’s case was pending on direct review. The addition of multiple enhancements to Nichols’s Guidelines range, including at least two — vulnerability of a victim and use of a child in the course of the offense — indisputably based purely on judge-found facts, provided the ideal circumstances for one such challenge.1 Additionally, Nichols’s counsel did challenge Nichols’s Guidelines range on other grounds, including a request for a *256downward departure. Under these circumstances, I conclude that counsel performed deficiently by failing to raise an additional Sixth Amendment challenge to the increases in Nichols’s Guidelines range.
For many of those same reasons, I believe that adequate counsel would have preserved the Sixth Amendment challenge by raising it on appeal, particularly in light of the Court’s grant of certiorari in Blakely. Counsel raised only one issue on appeal, a challenge to the jury instructions. Thus, there was no danger that preserving the Sixth Amendment challenge on appeal would require counsel to limit discussion of stronger issues in order to satisfy briefing page limits or would otherwise distract from the other issues raised on appeal, and I can identify no other strategic reason why counsel would refuse to preserve the Sixth Amendment challenge on appeal. See McFarland v. Yukins, 356 F.3d 688, 711 (6th Cir.2004). Although “counsel has no obligation to raise every possible claim” on appeal, id. at 710,1 conclude that, given the uncertain state of the law, the significant potential benefit to Nichols, and the insignificant costs — strategic or otherwise — required to preserve the claim, adequate counsel would have preserved the Sixth Amendment challenge on appeal, cf. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007) (noting that “hundreds, if not thousands” of criminal defendants in the Fifth Circuit have argued on appeal that, under the reasoning of Apprendi, prior felony convictions should be treated as elements of certain offenses, not as sentencing enhancements, in order to preserve the issue in case the Supreme Court overrules Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a preApprendi decision to the contrary). Moreover, at the time that Blakely was decided, Nichols still had one day to file a timely petition for rehearing in this court, which would have been a simple task had his counsel been keeping abreast of cases pending before the Supreme Court.
To have raised an Apprendi-type argument either at sentencing or on appeal, Nichols’s counsel need not have been clairvoyant or predicted the precise remedy that the Supreme Court would craft in Booker. Anyone who surveyed the legal landscape from 2002 to 2004 would have seen that the tide had shifted on determinate sentencing guidelines and need only have applied the Supreme Court precedent established in Apprendi to raise an argument that the enhancement of Nichols’s Guidelines range by judge-found facts presented Sixth Amendment problems. Because Nichols’s counsel did not do so, his performance fell below the “objective standard of reasonableness” required by Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding” — in this case, the result of Nichols’s sentencing — '“would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. As we have recognized previously, it often will be difficult for a defendant to establish on collateral review that he was prejudiced by counsel’s failure to challenge the constitutionality of the Guidelines, as he must demonstrate that he had or would have had a direct appeal pending on January 12, 2005, when Booker was decided. See Dunham v. United States, 486 F.3d 931, 934 (6th Cir.2007). But here, there were several ways in which Nichols’s appeal would have remained open when Booker was decided.
*257The majority concludes that Nichols is not entitled to relief because he had no right to effective assistance of counsel in petitioning the Supreme Court for certiorari, precluding Nichols from arguing that he was prejudiced by his failure to file a petition for certiorari. Because Smith, Nichols’s codefendant, obtained the advantage of Booker after Smith’s counsel filed a petition for certiorari, and given the injustice apparent where Nichols and his codefendant obtained vastly different results due to the disparate performances of their respective counsels, it is easy to focus on Nichols’s counsel’s failure to attempt this avenue of relief. The question is not, however, whether counsel was ineffective in failing to petition for certiorari, but whether Nichols’s counsel’s ineffective performance in not raising a Sixth Amendment issue at any point in the proceedings prejudiced Nichols’s later ability to reap the benefit of Booker. The majority’s focus on counsel’s failure to petition for certiorari ignores the fact that there were several routes, aside from the one taken by Smith, through which Nichols could have had an appeal pending, either before this court or before the Supreme Court. For example, had counsel raised a Sixth Amendment argument either at sentencing or on direct appeal, Nichols likely would have known to raise this argument at a later date. Further, the majority’s suggestion that United States v. Koch, 383 F.3d 436 (6th Cir.2004) (en banc), vacated, 544 U.S. 995, 125 S.Ct. 1944, 161 L.Ed.2d 764 (2005), made it clear that Blakely did not invalidate the Guidelines ignores the fact that Koch came down well after Nichols’s direct appeal was decided. Prior to Koch, a panel of this court did apply Blakely to the Guidelines, showing that it is reasonably likely that a panel of this court would have applied Blakely to invalidate Nichols’s sentence. See United States v. Montgomery, No. 03-5256, 2004 WL 1562904 (6th Cir. July 14, 2004), reh’g en banc granted and opinion vacated (6th Cir. July 19, 2004). Given these and other possible outcomes, there is a reasonable probability that Nichols’s case would have been in a different procedural posture such that his appeal would have been open on January 12, 2005.
Because Apprendi and Blakely cast the constitutionality of the federal Sentencing Guidelines into serious doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence.
. This provides a key distinction from the circumstances presented in United States v. Burgess, 142 Fed.Appx. 232 (6th Cir.) (unpublished), cert. denied, 546 U.S. 919, 126 S.Ct. 296, 163 L.Ed.2d 259 (2005), in which we concluded that an attorney did not perform deficiently by failing to challenge the district court’s use of a mandatory Guidelines range when sentencing the defendant. Id. at 240-41. Burgess involved a defendant whose Guidelines range was calculated solely on the basis of the crime to which he pleaded guilty and his prior convictions, with no additional enhancements. Id. at 240. As we noted in Burgess, neither Apprendi nor any other preBooker case provided any reason to suspect that the district court erred by sentencing the defendant within the Guidelines range under those circumstances, even though the defendant ultimately might have been entitled to resentencing pursuant to the remedial holding of Booker and our subsequent interpretation of that holding in United States v. Barnett, 398 F.3d 516 (6th Cir.), cert. dismissed, 545 U.S. 1163, 126 S.Ct. 33, 162 L.Ed.2d 931 (2005). Burgess, 142 Fed.Appx. at 240-41.