PAEZ, Circuit Judge.
Alfred Ameline appeals his 150 month sentence that was imposed after he pled guilty to knowingly conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. In his initial appellate brief, Ameline challenged his sentence on two grounds. First, Ameline contended that because he objected to the amount of methamphetamine attributed to him in the Presentence Report (“PSR”) the district court erred when it considered the PSR as “prima facie evidence of the facts” and required Ameline to disprove its contents relating to drug quantities. Second, Ame-line contended that the district court’s drug quantity finding was clearly errone[970]*970ous because it was based on multiple layers of unreliable hearsay evidence.
In post-submission briefing, Ameline argued that the imposition of his sentence violates the Sixth Amendment as recently interpreted by the Supreme Court in Blakely v. Washington, - U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) because the facts underlying the calculation of his base offense level and his sentence enhancement were not found by a jury beyond a reasonable doubt. If Ameline is correct that the Blakely rule applies to the United States Sentencing Guidelines, his other two claims become irrelevant, as they assume both the wrong decision-maker and the wrong standard of proof. We examine sua sponte whether the Blakely rule applies to sentences imposed under the Sentencing Guidelines. We hold that Blakely’s definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2Dl.l(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2Dl.l(b)(l). As a result, we hold that Aneline’s sentence, based on the district court’s finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine — despite Ameline’s admission of only a detectable amount of methamphetamine — violates Ameline’s Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ame-line’s Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline’s right to have the facts underlying his sentence found beyond a reasonable doubt. Finally, we hold that the Blakely rule’s effect on the determination of a base offense level under § 2Dl.l(c) and an upward enhancement under § 2Dl.l(b)(l) do not render the Sentencing Guidelines facially invalid. Accordingly, we vacate Ameline’s sentence and remand for resentencing.
I.
Background
Ameline pled guilty to knowingly conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. His plea agreement did not contain an agreement as to a specific quantity of methamphetamine for purposes of sentencing, but rather left that determination to the district court at the time of sentencing. At Ameline’s change of plea hearing, he disputed the government’s offer of proof that he distributed one and a half kilograms of methamphetamine, but admitted that “some methamphetamine” was involved in his offense conduct. At the end of the hearing, Ameline’s counsel reiterated this point: “[W]e do vigorously oppose the amounts that the government attributes to Mr. Ameline. And at the sentencing hearing, we anticipate bringing in quite a few witnesses ... I would ask that the court set aside the better part of a day. I mean, I’m kind of anticipating trial on the amounts of drugs involved is what I’m anticipating.”
The PSR prepared by the Probation Office attributed 1,079.3 grams of methamphetamine to Ameline for purposes of applying the drug equivalency table found in U.S.S.G. § 2Dl.l(c), resulting in a recommended base offense level of 32. The PSR also recommended a two level enhancement pursuant to § 2Dl.l(b)(l) for possession of a weapon in connection with the offense on the basis of hearsay testimony by a confidential informant that Ameline sold the confidential informant methamphetamine in exchange for a rifle, and that he once witnessed Ameline threaten his son with a handgun.
[971]*971After the probation officer disclosed the draft PSR to Ameline and the government, Ameline, as required by the court’s April 30, 2002 Sentencing Order, presented the probation officer with a series of objections to the quantities of methamphetamine attributed to him in the report. Ameline also objected to the two paragraphs that formed the basis of the § 2Dl.l(b)(l) enhancement — possession of a gun — as “false.” In his letter objecting to the draft PSR, Ameline explained the basis for his objections and the evidence on which he would rely at the sentencing hearing. The probation officer dismissed Ameline’s objections and reaffirmed his determination of the quantity of methamphetamine in the original PSR, as well as the upward enhancement. As the probation officer explained in an addendum to the PSR:
The information obtained for purposes of inclusion in the Offense Conduct section of the report is based solely on the official investigative reports provided by the Cascade County Sheriffs Office and the Federal Bureau of Investigation. Subsequent to receipt of the objections to the Presentence Investigation Report from the defendant’s attorney, this officer again discussed investigative matters and reference to official reports with Detective Dan Kohm, Cascade County Sheriffs Office, and Special Agent Phil Niedringhaus, Federal Bureau of Investigation, to verify the validity contained in the investigative report. Both Detective Kohm and Agent Niedringhaus question the credibility of the individuals the defendant wishes to bring forward to provide testimony for the defendant in support of a lower drug amount. Both Kohm and Niedringhaus indicate that the Cl is a reliable source of information.
As a result, this Officer stands by the original information provided in the Pre-sentence Investigation Report and the total drug amount weight calculated as 1.08 kilograms of methamphetamine.
In Ameline’s Sentencing Memorandum, dated September 3, 2002, he again objected to the amount of methamphetamine attributed to him in the PSR. Specifically, Ameline objected to the amount of methamphetamine the probation officer sought to attribute to him in paragraphs 13,17, 24 and 28 of the PSR. Paragraph 13 of the PSR alleged that Ameline met with “Toro,” aka Shawn Rodriguez, in Great Falls, Montana where Toro “fronted” Ameline a pound and a half of methamphetamine (680.4 grams). According to the PSR, the source of this information was not Toro, but rather a cooperator and co-defendant, Victor Saucedo, who claimed to have been told this by Toro. Paragraph 17 alleged that Jamie Swan gave Ameline ten ounces of methamphetamine (283.5 grams). Swan had supposedly received the methamphetamine he gave to Ameline from co-defendant Michael Lamere. Paragraph 24 attributed 113 grams of methamphetamine to Ameline based on three sales of methamphetamine to Ameline by a confidential informant. Paragraph 28 attributed two grams of methamphetamine to Ameline based on statements Reuben McDowell made to investigators that he had twice dealt one gram quantities of methamphetamine to Ameline.
At the beginning of the sentencing hearing, before any witnesses were called, the district judge informed the parties how he intended to proceed:
It is the position of this court in this matter, as it is in all such cases, that the facts as recited in the presentence report are prima facie evidence of the facts set out there; that if the defendant challenges the facts set forth in the pre-sentence report, it is the burden of the defendant to show that the facts con[972]*972tained in the report are either untruthful, inaccurate, or otherwise unreliable.
The district judge then asked defense counsel to call his first witness. However, before counsel called any witnesses, the court again reiterated its position:
[I]t is my position that the statements in the presentence report, that is, statements of fact, are reliable on their face and prima facie evidence of the facts there stated. And I will be taking those into account to the extent relevant to the obligations that I have in fashioning sentence and fixing responsibility for drug quantities, if they are not overcome by other evidence presented at this hearing. Be guided accordingly, (emphasis added).
Consistent with his objections, Ameline presented testimony from Toro to dispute the amount of methamphetamine attributed to him in paragraph 17 of the PSR. Toro testified that he provided Ameline with three ounces of methamphetamine in October 1999, but that Saucedo was not present when the transaction took place. Toro further testified that he never told Saucedo that he had provided Ameline with one and a half pounds of methamphetamine. As to the amount of methamphetamine attributed to Ameline in paragraph 17 of the PSR by the statement of Jamie Swan, Ameline presented the testimony of Michael Lamere who testified that Swan was not in charge of selling the one pound quantity of methamphetamine that he supposedly distributed part of to Ame-line. Lamere testified that Jamie Swan was mistaken in his belief that Ameline received 10 ounces of the one pound quantity of methamphetamine. As to paragraph 24 of the PSR, Ameline called the confidential informant, Dan Metcalf, to testify about his transactions with Ameline. Metcalf testified that he and Ameline engaged in four or five transactions for a total of three ounces of methamphetamine. Ameline called Reuben McDowell to dispute the contents of paragraph 28 of the PSR. McDowell testified that, contrary to the assertion in paragraph 28, he had never dealt any quantities of methamphetamine to Ameline.
At the conclusion of the hearing, the district court found that 1,603.601 grams of methamphetamine were attributable to Ameline, for a base offense level of 34. The district court stated “I should let all parties know that all findings are based upon a preponderance of the evidence standard and are established at least to that standard in the view of the court.” The district court found the § 2Dl.l(b)(l) enhancement “undisputed” for an offense level of 36, but deducted three points for timely acceptance of responsibility, for a total offense level of 33. The district court sentenced Ameline to 150 months, in the middle of the 135 to 168 month range provided by the Sentencing Guidelines.
II.
Analysis
A. Can We Consider Ameline’s Post>Submission Argument Regarding Blakely?
As noted, Ameline initially challenged the district court’s determination that he bore the burden of disproving the factual statements in the PSR relating to drug quantity and the court’s determination that [973]*973the hearsay evidence used to prove drug quantity was sufficiently reliable. On November 4, 2003, when Ameline’s case was submitted, he contested neither the preponderance of the evidence standard used by the judge nor the propriety of the judge as factfinder.
On June 24, 2004, the Supreme Court issued its decision in Blakely, which raised the possibility that Ameline’s initial challenges had been subsumed by a violation of his Sixth Amendment rights. The Blakely court addressed a provision of Washington State’s determinate sentencing law that allowed a judge to impose a sentence above the standard statutory sentencing range if the judge found, by a preponderance of the evidence, that certain offense aggravating factors existed that justified a sentence in excess of the “standard range.” — U.S. at-■, 124 S.Ct. at 2535. In Blakely, the trial court utilized this authority to impose a 90 month sentence, even though the standard range for Blakely’s offense, second-degree kidnapping, was 49 to 53 months. Id. In striking down Blakely’s enhanced sentence, the Court explained “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.” Id. at 2537 (emphasis in original). Thus, because the jury did not determine the factual basis for the enhanced sentence, and Blakely did not admit the facts, his enhanced sentence could not survive a Sixth Amendment challenge.
With its clarification of a defendant’s Sixth Amendment rights, the Blakely court worked a sea change in the body of sentencing law.2 We would be remiss if [974]*974we did not examine if and how Blakely applies to sentences imposed under the Guidelines. See DeGurules v. INS, 833 F.2d 861, 863 (9th Cir.1987) (“[A] fundamental principle of our jurisprudence is that a court will apply the law as it exists when rendering its decision ... [T]his principle applies even when a change to existing law occurs during the pendency of an appeal.”) (emphasis added).
Our precedent provides ample support for our authority to consider sua sponte a claim that was not initially raised on appeal. We have previously “examine[d] sua sponte the application of [a] recent Supreme Court opinion” when it appeared that a “controlling authority has made a contrary decision of law applicable to this issue.” United States v. Garcia, 77 F.3d 274, 276 (9th Cir.1996). See also Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1488 (9th Cir.1995) (“We will review an issue that has been raised for the first time on appeal under certain narrow circumstances,” including “when a change in law raises a new issue while an appeal is pending.”); In re Skywalkers, Inc., 49 F.3d 546, 548 n. 4 (9th Cir.1995) (“change in law pending appeal permits entertainment of issue not theretofore raised.”).
Ameline’s case squarely presents such a situation. If the Blakely rule does apply to sentences imposed under the Sentencing Guidelines, and therefore, to Ameline’s sentence, Ameline’s initial arguments are beside the point. His initial challenges assume a federal sentencing scheme where the district judge, not the jury, determines the material facts that may increase the severity of punishment using a preponderance of the evidence standard, not proof beyond a reasonable doubt. Assuming Blakely does implicate sentences imposed under the Guidelines, as Ameline has argued in his post-submission briefing, to simply address Ameline’s initial arguments would be to answer questions that may no longer be relevant to federal criminal sentencing.
Although Ameline made no challenge to the applicable standard of proof or to the judge’s factfinding authority, we hold that the Sixth Amendment implications of Blakely allow us to examine sua sponte its potential impact on Ameline’s sentence. We therefore consider as a matter of first impression whether the Blakely rule applies to sentences imposed under the Sentencing Guidelines.
B. Does the Sixth Amendment Right Announced in Blakely Apply to Sentences Imposed Under the United States Sentencing Guidelines?
We join the Seventh Circuit in holding that there is no principled distinction between the Washington Sentencing Reform Act3 at issue in Blakely and the United States Sentencing Guidelines. Booker, 2004 WL 1535858, at *3. While the Blakely court only addressed the Washington State sentencing scheme,4 the manner in which the majority defined the “statutory maximum” compels us to conclude that its reasoning applies with equal force to the Sentencing Guidelines.
The federal Sentencing Guidelines scheme created by the 1984 Sentencing Reform Act5 is remarkably similar to the [975]*975Washington State sentencing scheme. In Blakely there were two state sentencing statutes at issue. The statute setting the sentence ranges for each class of felony offenses in Washington designated ten years as the maximum punishment for Blakely’s second degree kidnapping offense. Wash. Rev. Code Ann. § 9A.20.021(l)(b); — U.S. at ——, 124 5.Ct. at 2535. Washington’s Sentencing Reform Act, however, specified in a separate statutory provision a “standard range” of 49 to 53 months for Blakely’s offense. Wash. Rev.Code Ann. § 9.94A.320. The trial court could exceed this range only if the court found a “substantial and compelling reason justifying an exceptional sentence.” — U.S. at --•, 124 S.Ct. at 2535. Under Washington’s Sentencing Reform Act there were several potential factors that would support a judge’s decision to depart from the presumptive range. Id. In Blakely’s case, the trial court found that Blakely had acted with “deliberate cruelty,” one of the enumerated factors justifying an exceptional sentence. Id.
In ruling that the Sixth Amendment right to a jury trial rendered Blakely’s exceptional sentence unconstitutional, the Court did not focus on the ten-year statutory maximum, but rather the “standard range” of 49 to 53 months established by the Sentencing Reform Act.
[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 facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Id. at 2537 (internal citations omitted).
The Court held that the trial judge’s sentence of 90 months violated this principle because it was not justified “solely on the basis of facts admitted in the guilty plea” but rather involved judicial fact-finding of aggravating factors which increased the sentence. Id.
Ameline was similarly subject to dueling “statutory máximums.” Under 21 U.S.C. § 841(b)(1)(C), he faced a potential sentence of 0 to 20 years. However, Congress also provided, through its implicit adoption of U.S.S.G. § 2Dl.l(e), a differing range of presumptive sentences based on the quantity of drugs, including methamphetamine, as determined by the district judge or admitted by the defendant.6 Here, with the district judge’s factual findings, Ameline faced a base offense level of 34, with a sentencing range of 151 to 188 months.7 Solely on the basis of Ameline’s [976]*976admission of distributing a detectable amount of methamphetamine, “without any additional findings,” Blakely, - U.S. at -, 124 S.Ct. at 2537, his base offense level would have been 12 with a sentencing range of 10 to 16 months. Although we have held that the “statutory maximum” for Apprendi purposes is the statute of conviction8 (here, § 841(b)(1)(C)), Blakely’s definition of “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” —— U.S. at -, 124 S.Ct. at 2537 (emphasis in original), suggests this conclusion was in error.
Here Ameline only admitted to a detectable amount of methamphetamine.9 On the basis of this admission alone, the maximum sentence under the Guidelines that the district judge could have imposed— without any further findings — would have been 16 months, given a base offense level of 12.10 See U.S.S.G. § 2Dl.l(c)(14) (base offense level 12 applies when the offense involved “[ljess than 2.5 G of Methamphetamine, or less than 250 MG of Methamphetamine (actual)”). Instead, the district court imposed a sentence of 150 months, based on a base offense level of 34, a two level upward enhancement pursuant to U.S.S.G. § 2Dl.l(b)(l) for possession of a firearm, and a threerpoint reduction .for acceptance of responsibility which far exceeded the maximum sentence that the district judge could have imposed simply on the basis of facts admitted by Ameline. This directly parallels the sentencing process held unconstitutional in Blakely.
The government argues that the Sentencing Commission’s unique status as an independent Commission within the judicial branch compels the conclusion that the Blakely rule is inapplicable to sentences imposed under the Guidelines. We are unpersuaded. In supplemental briefing, the government argued that because the Sentencing Guidelines are not “legislatively enacted,” but are rather a “unique product of a special delegation of authority” to an independent Commission in the judicial branch, the Guidelines cannot set the relevant statutory máximums under Blakely. Presumably even the government would concede that had Congress first prescribed the presumptive sentencing ranges to the Sentencing Commission, the Sentencing Guidelines would be indistinguishable from the Washington sentencing scheme as the ranges would be “legislatively enacted.”
We are unconvinced that the Congressional delegation of authority to the Sentencing Commission to set presumptive sentencing ranges in the first instance creates any meaningful distinction. Congress retains the authority to, and indeed must, ratify the Guidelines. Every Sentencing Guideline promulgated by the Commission [977]*977must be ratified by Congress, which “can revoke or amend any or all of the Guidelines as it sees fit either within the 180-day waiting period or at any time.” Mistretta v. United States, 488 U.S. 361, 393-94, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); 28 U.S.C. § 994(p). The Court has previously held that the Sentencing Guidelines have the force of law, Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), and “bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases.” Mistretta, 488 U.S. at 391, 109 S.Ct. 647. See also Bahe, 201 F.3d at 1129 n. 5. Congress has utilized this authority to shape the Guidelines directly, twice rejecting attempts by the United States Sentencing Commission to modify the powder to crack cocaine sentencing ratio. More recently, Congress acted directly to amend the Guidelines regarding child pornography, limiting judicial discretion to depart downward and changing the appellate standard of review of criminal sentences. See PROTECT Act, Pub.L. 108-21, 117 Stat. 668-69, 671-73 (2003). In short, we agree with the Seventh Circuit that “[t]he pattern [of the Guidelines] is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference.” Booker, 375 F.3d 508, 511, 2004 WL 1535858, at *2.11
We similarly are unconvinced by the government’s assertion that our review is barred by Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) and other cases upholding sentences under the Guidelines against a variety of constitutional challenges.12 It is true that if Edwards dismissed a Sixth Amendment challenge to the Guidelines we would not be free to revisit that holding, even if it was manifestly inconsistent with Blakely. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (“it is [the Supreme Court’s] prerogative alone to overrule one of its precedents”); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (courts of appeals must leave to “this Court the prerogative of overruling its own decisions,” even if such decision “appears to rest on reasons rejected in some other line of decisions”) (citations omitted). However, we agree with the Seventh Circuit that Edwards did not do so, and therefore it is not an obstacle to our review. Booker, 375 F.3d 508, 514, 2004 WL 1535858, at *4-5.
The Court in Edwards explicitly stated “we need not, and we do not, consider the merits of petitioners’ statutory and constitutional claims.” 523 U.S. at 516, 118 S.Ct. 1475. A review of the petitioners’ brief in Edwards reveals that the constitutional claim advanced was that it was improper [978]*978for the district judge to determine the object of the drug conspiracy — either cocaine or cocaine base — when the jury’s general' verdict was ambiguous as to the drug involved. See Brief for Petitioners, 1997 WL 793079, at *30-31 (“Petitioners are entitled to have the jury determine what illegal agreement the Petitioners formed and agreed to participate in.”).
This was an argument about the Sixth Amendment’s effect on 21 U.S.C. § 846, not the Sixth Amendment’s effect on the application of the Sentencing Guidelines. Id. at *32 (“The government’s construction of Section 846, and the lower courts’ decisions, would violate Petitioners’ Sixth Amendment and Due Process rights to a unanimous jury verdict on the offense of conviction.’’) (emphasis added). Edwards did not argue that the Guidelines sentencing scheme violated his Sixth Amendment right to a jury trial; indeed, Edwards presumed that had the jury identified whether cocaine or cocaine base was the object of the conspiracy, the district court could have properly determined the quantity of the identified drug at sentencing consistent with the Sixth Amendment. “The Court did not opine on the guidelines’ consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines. We are obligated therefore to make our own constitutional determination.” Booker, 375 F.3d 508, 514, 2004 WL 1535858, at *5.13
The government also briefly argues that a panel of this court cannot overturn circuit precedent, and we previously have held that the Sentencing Guidelines do not violate the rule of Apprendi. See United States v. Hemandez-Guardado, 228 F.3d 1017, 1026-27 (9th Cir.2000). However, when an intervening Supreme Court case undermines one of our previous holdings, a subsequent panel may revisit that issue without convening an en banc court. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc). In light of Blakely, we are not bound by Hemandez-Guardado’s (and subsequent cases’) rejection of a Sixth Amendment challenge to the Guidelines.
Therefore, we hold that the Sixth Amendment right announced in Blakely applies to sentences imposed pursuant to the Federal Sentencing Guidelines. As such, we must consider Blakely’s effect on Ameline’s sentence.
C. In Light of Blakely, Was Ameline’s Sentence Permissible Under the Guidelines?
Our jurisdiction over Ameline’s Blakely claim necessarily requires us to determine the standard of review. Because Ameline did not object to his sentence on the grounds that the Sentencing Guidelines or the procedures used to determine the material sentencing facts were unconstitutional under Apprendi, or on the ground that the material sentencing facts were not alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt, we review for plain error. See [979]*979United States v. Cotton, 535 U.S. 625, 628-29, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).
[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affeet[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 seriously affects the fairness, integrity, or public reputation of the judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations and quotations omitted).
The district court’s finding by a preponderance of the evidence, after weighing multiple levels of hearsay testimony, that Ameline should be responsible for 1,603.60 grams of methamphetamine was plain error. First, “[deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As discussed above, the determination of Ameline’s base offense level (and two point upward enhancement for possession of a gun) by the district judge employing a preponderance of the evidence standard was error under Blakely.
Second, in determining whether the error was plain, the Court has explained that it is sufficient for the error to be clear under the law as it exists at the time of appeal. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.”). It is clear after Blakely that increasing Ameline’s punishment based on facts not admitted by him or determined by a jury beyond a reasonable doubt (or by the district judge with a jury waived) was clearly contrary to his Sixth Amendment jury right.
For an error to affect “substantial rights” “the error 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. Ameline raised specific objections to paragraphs 13, 17, 24 and 28 of the PSR, all of which were based on varying degrees of hearsay. In challenging the reliability of these hearsay statements, Ameline presented numerous witnesses directly involved in the described transactions who disputed the PSR’s recommended base offense level of 32, all of whom raised serious questions regarding the total quantity of drugs attributable to Ameline. It cannot be seriously disputed that the lower standard of proof affected the outcome of his ultimate sentence.14
Finally, the error affected the fairness of Ameline’s proceedings. In discussing the fairness of the result in Blakely, the Court stated:
Any evaluation of Apprendi’s “fairness” to criminal defendants must compare it [980]*980with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U.S.C. §§ 841(b)(1)(A), (D), based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong.
Blakely, - U.S. at -, 124 S.Ct. at 2542.
This is precisely what happened to Ame-line. Although he admitted to only a detectable amount of methamphetamine, and vigorously challenged the reliability of the hearsay evidence presented in the PSR to increase his base offense level, he was nonetheless sentenced by the district judge based on the preponderance standard to a significantly higher sentence.15
Therefore, we hold that the district judge’s imposition of this sentence after determining the material sentencing facts by a preponderance of the evidence, rather than relying on a jury’s determination of the facts beyond a reasonable doubt, violated Ameline’s Sixth Amendment rights as explained in Blakely.
D. Are the Sentencing Guidelines Sever-able?
The government argues that if we find Blakely applicable to any facet of Amé-line’s sentence, then we must hold that the Guidelines as a whole are unconstitutional. We disagree.
We have held that Blakely applies to the procedure the district court followed to determine Ameline’s base offense level under § 2Dl.l(c) and the two level upward enhancement pursuant to § 2Dl.l(b)(l). We do not invalidate either the base offense levels in § 2Dl.l(c) or the two level enhancement in § 2Dl.l(b)(l). Rather, we hold that in determining a base offense level under § 2Dl.l(c) or an upward enhancement under § 2D1.1(b)(1), in order to be consistent with Blakely, those determinations must be made by a jury beyond a reasonable doubt (or by a judge with proper jury waiver).
As the government notes, this application of Blakely affecting the manner in which certain Sentencing Guidelines will be applied is arguably in tension with § 6A1.3 and 18 U.S.C. § 3742. The commentary to § 6A1.3 explains “The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.” To the extent that, as a result of Blakely, predicate factual determinations must be made by the reasonable doubt standard before § 2Dl.l(c) and § 2D1.1(b)(1) can be ap[981]*981plied, this commentary conflicts with the Sixth Amendment and is unconstitutional as applied in certain circumstances. Section 3742 providing for appellate review of district court sentences under the Guidelines appears to contemplate that it is the district judge’s responsibility to make the requisite findings of fact at sentencing. See 18 U.S.C. § 3742(e) (courts of appeals “shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous -”); see also Fed.R.Crim.P. 32(i)(3)(B) (district court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute”). The assumption behind this provision (and Rule 32), that the district court will make the requisite findings of fact, is unconstitutional under Blakely in cases absent a jury waiver.
However, we decline the government’s invitation to invalidate the Guidelines wholesale and to permit the district court unfettered discretion on resentencing to sentence Ameline to a term within the statutory range of 0 to 20 years. Instead, we hold that, although these procedural aspects of applying the Sentencing Guidelines violate Ameline’s Sixth Amendment right to a jury trial, they are severable.
We begin with the “presumption ... in favor of severability,” a presumption that is based on the idea that “a court should refrain from invalidating more of the statute than is necessary” because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, 468 U.S. 641, 652-53, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984). Reflecting this presumption, the test for determining sever-ability provides that “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Champlin Refining Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). As this standard implies, the issue is “essentially an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).
We therefore turn to Congress’ intent in enacting the Sentencing Guidelines. Congress had three objectives in mind when it enacted the Guidelines: honesty, uniformity and proportionality. U.S.S.G. § 1A1.1, cmt. 3 (2003). Congress sought to promote honesty in sentencing by eliminating the indeterminate sentencing system under which defendants often served far less than the sentence imposed by the district court. Congress’ second purpose was to achieve “uniformity” by “narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” Id. Finally, Congress intended that the Guidelines would also ensure proportionality by treating different criminal conduct differently. In short, Congress’ goal was to eliminate the uncertainty that accompanied indeterminate sentencing.
The Sentencing Guidelines will still promote this goal even if the requirements for judge fact finding by a preponderance of the evidence are severed as violating the Sixth Amendment in circumstances like those confronting Ameline. The Sentencing Guidelines seek to achieve these Congressional objectives because they contemplate similar sentences once a given set of facts are found to exist. Although severance would change how those facts are determined, and by whom, severance would have no effect on the Congressional [982]*982goal of achieving consistency of sentences in cases that involve similar offense conduct. In fact, were we to hold that Blakely precludes application of the Guidelines as a whole, we would do far greater violence to Congress’ intent than if we merely excised the unconstitutional procedural requirements. We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.16 Absent the Sentencing Guidelines, we would return to a system of indeterminate sentencing with all of its attendant problems. Rather than undermining Congress’ objectives, severance facilitates them.
It is true of course, as the government argues, that the Sentencing Guidelines will not function in the exact same manner as they did pre-Blakely. Unless a defendant admits facts as part of his guilty plea or at sentencing, or waives his right to a jury, juries, not judges, will make the material factual findings, and they will do so by employing a higher standard of proof. But the test for sever-ability is not, as the government seems to suggest, whether the statute will function identically to the way it operated before the objectionable provisions were severed. If this actually were the test for severance, severance would never be appropriate. Rather, the test is “whether the statute will function in a manner consistent with the intent of Congress.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987). In terms of severability, it is inconsequential whether Congress enacted the Guidelines with the assumption that district judges would make sentencing findings, that a preponderance of the evidence standard would be employed, or even that similar procedures would be employed for enhancements and downward departures17 unless such procedures were critical to the goals of honesty, uniformity and proportionality. As explained above, they are not.
The government’s only attempt at arguing otherwise is unavailing. The government suggests that severance would undermine uniformity because even though similar defendants may have committed similar crimes, “[i]t would likely be impossible, as a practical matter, to charge and prove to a jury beyond a reasonable doubt all enhancing factors in all cases.” In other words, defendants who were in fact similar might be treated differently because the government may be less able in one case to fulfill its burden of persuasion than in another case. This, of course, also occurred when district judges determined material sentencing facts on the basis of a preponderance of the evidence standard. The Sentencing Guidelines, however, seek to promote uniformity by providing a structure that encourages similar sentences for defendants with similar offense conduct. Although that goal may be elusive in some instances, we are reluctant, in light of Congress’ declared goals, to abandon completely the Sentencing Guidelines in this case.
Indeed, Blakely seems to contemplate that its holding can apply to determinate sentencing schemes without wholesale invalidation. The opinion itself notes that it “is not about whether determinate sen[983]*983tencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.” — U.S. at-, 124 S.Ct. at 2540. Blakely did not rule that Washington’s Sentencing Reform Act was unconstitutional on its face, rather only that the aspects of the statute which required a judge to find facts by a preponderance of 'the evidence that increased the level of punishment beyond the standard range were in violation of the Sixth Amendment.
In sum, the government has failed to overcome the presumption in favor of sev-erability. Moreover, severance does not interfere with Congress’ intent in enacting the Guidelines. To the contrary, preserving the essential provisions of the Guidelines that are not constitutionally infirm will effectuate Congressional intent by preventing a return to the days of indeterminate sentencing.
E. Proceedings On Remand
Because we conclude that Ameline has the right to have a jury decide the facts underlying the determination of his base offense level and his two level firearm enhancement beyond a reasonable doubt, we must reverse the district court’s judgment and remand for resentencing. Should the government abandon its attempt to hold Ameline responsible for 1,603.60 grams of methamphetamine, the maximum sentence the district court could impose on Ameline at resentencing could solely be based on his admissions.18
However, should the government seek to obtain a higher sentence for the offense of conviction, the district court may convene a sentencing jury to try the drug quantity and firearm issues, which, if proven beyond a reasonable doubt, may be used to increase Ameline’s sentence.19 As the Seventh Circuit in Booker noted, federal courts have long employed bifurcated juries in the capital punishment context, as well as in the civil context where a jury may only determine damages once it has separately determined liability. “There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial.” 375 F.3d 508, 514, 2004 WL 1535858, at *5; see also United States v. Khan, 2004 U.S. Dist. LEXIS 13192 at *16 (E.D.N.Y. July 12, 2004) (noting the success of the bifurcated jury system in capital cases).20
[984]*984Our decision to remand for resentencing is not precluded by double jeopardy concerns. See, e.g., Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). Unless the facts sought to be proven by the government to enhance Ameline’s sentence constitute elements of a statutory offense required to be alleged in the original indictment, the constitutional prohibition of double jeopardy would not be implicated. U.S. Const, amend. V, cl. 2.
Imposition of a new sentence on remand constitutes a second punishment in violation of the Double Jeopardy Clause only if the defendant has a legitimate expectation of finality in his original sentence by the time his new sentence is imposed. United States v. Radmall, 340 F.3d 798, 800 (9th Cir.2003); Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir.1990); United States v. McClain, 133 F.3d 1191, 1193 (9th Cir.1997). A defendant has no legitimate expectation of finality in a sentence which he places in issue by direct appeal. United States v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir.1995). Ameline has directly appealed his sentence, and therefore, cannot have a legitimate expectation of finality. Thus, imposition of a new sentence on remand would not constitute a violation of the Double Jeopardy Clause.
III.
Conclusion
Accordingly, Ameline’s sentence is VACATED and REMANDED for resentenc-ing consistent with this opinion.