                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 03-10421
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-02-00099-ACK
LARON KEVIN KORTGAARD,
                                              OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                for the District of Hawaii
         Alan C. Kay, District Judge, Presiding

         Argued and Submitted November 3, 2004
         Submission Withdrawn January 11, 2005
              Resubmitted August 30, 2005
                    Honolulu, Hawaii

                 Filed September 21, 2005

Before: Melvin Brunetti, Susan P. Graber, and Jay S. Bybee,
                     Circuit Judges.

                Opinion by Judge Brunetti




                           13573
13576            UNITED STATES v. KORTGAARD




                         COUNSEL

David F. Klein, Esq., Honolulu, Hawaii, for the defendant-
appellant.

Michael K. Kawahara, Assistant United States Attorney,
Honolulu, Hawaii, for the plaintiff-appellee.


                          OPINION

BRUNETTI, Circuit Judge:

   Laron Kevin Kortgaard appeals his conviction and sentence
for manufacturing marijuana. We have jurisdiction under 28
U.S.C. § 1291. We affirmed Kortgaard’s conviction in an
unpublished Memorandum and deferred submission of the
sentencing issues. United States v. Kortgaard, 119 Fed. Appx.
148 (9th Cir. Jan. 11, 2005). We now hold that upward depar-
tures under § 4A1.3 of the United States Sentencing Guide-
lines involve factual findings beyond the fact of a prior
conviction. Because Kortgaard’s sentence was increased
under § 4A1.3 and exceeds the maximum authorized sentence
based solely on the jury’s verdict under the then-mandatory
Sentencing Guidelines, we vacate the sentence and remand
for resentencing in light of United States v. Booker, 125 S. Ct.
738 (2005).

              Factual and Procedural History

   Kortgaard was originally charged with manufacturing mari-
juana based on his cultivation of 50 or more plants and pos-
                    UNITED STATES v. KORTGAARD                      13577
session with intent to distribute the same amount. A jury
acquitted Kortgaard of possession with intent to distribute but
convicted him of manufacturing marijuana in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). Based on the jury verdict
and Kortgaard’s criminal history, the Guidelines required the
district court to sentence Kortgaard to not less than 21 months
but not more than 27 months in prison.

   Rather than sentence Kortgaard within this “base” sentenc-
ing range, the district court departed upward to a range of 37
to 46 months and ultimately sentenced Kortgaard to 46
months in prison.1 The upward departure was based on the
judge’s finding that the applicable guideline range inade-
quately represented the seriousness of Kortgaard’s criminal
history and his likelihood of recidivism. U.S. Sentencing
Guidelines Manual § 4A1.3 (Nov. 2001) (amended 2003)
(hereinafter U.S.S.G.).2 In making this finding, the district
court considered Kortgaard’s two drug convictions and eight
convictions for various other offenses, which occurred in the
United States many years ago, and Kortgaard’s six foreign
drug convictions and seven foreign convictions for property
offenses, which occurred in Canada.

   As the district court noted, U.S.S.G. § 4A1.2(e) and (h) pre-
clude consideration of these old domestic convictions and for-
eign convictions in determining the applicable criminal
history category and the “base” sentencing range. Neverthe-
less, the district court could and did consider those convic-
tions in making an upward departure. Section 4A1.3 expressly
permits consideration of “prior sentence(s) not used in com-
  1
     The district court also sentenced Kortgaard to a consecutive 46-month
term for violation of supervised release based on the present conviction.
Kortgaard was on supervised release from a 1994 heroin conviction at the
time he committed the instant offense.
   2
     All citations to the U.S. Sentencing Guidelines in this opinion are to
the version incorporating amendments effective November 1, 2001, unless
otherwise indicated.
13578            UNITED STATES v. KORTGAARD
puting the criminal history category (e.g., sentences for for-
eign and tribal offenses),” as well as other uncounted factors,
including even criminal conduct not resulting in a conviction.

   On appeal, Kortgaard maintains that the district court’s
findings and the resulting upward departure are erroneous on
the merits and, alternatively, violate the Sixth Amendment. At
the time of briefing, the Supreme Court had decided Apprendi
v. New Jersey, 530 U.S. 466 (2000), but had only granted cer-
tiorari in Blakely v. Washington, 124 S. Ct. 2531 (2004). By
the time of oral argument, however, the parties had the addi-
tional benefit of the Court’s decision in Blakely and its grant
of certiorari in Booker. Kortgaard subsequently filed a motion
for supplemental briefing in light of Booker, which the Gov-
ernment opposed. In an unpublished order filed August 30,
2005, we denied the motion. The Court’s guidance in Booker
and the parties’ briefing and oral arguments are sufficiently
illuminating to permit resolution of this appeal without sup-
plemental briefing.

                          Discussion

   In United States v. Bad Marriage, 392 F.3d 1103, 1108 (9th
Cir. 2004), decided only weeks before Booker, we reserved
decision on the issue of “whether, or how, Blakely affects
upward departures under § 4A1.3.” We now confront that
issue in light of Booker and hold that upward departure deci-
sions under § 4A1.3 are factual in nature; therefore, such deci-
sions are not within Apprendi’s exception for the fact of a
prior conviction and are subject to the restrictions of Booker.

                              A.

   [1] The Court clearly stated in Booker: “Any fact (other
than a prior conviction) which is necessary to support a sen-
tence exceeding the maximum authorized by the facts estab-
lished by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable
                 UNITED STATES v. KORTGAARD               13579
doubt.” 125 S. Ct. at 756 (Stevens, J., opinion of the Court).
As we have interpreted Booker, “the Sixth Amendment pre-
cludes a judge from enhancing a sentence based on extra-
verdict findings (other than the fact of a prior conviction) in
a mandatory sentencing regime.” United States v. Ameline,
409 F.3d 1073, 1077 (9th Cir. 2005) (en banc) (citing Booker,
125 S. Ct. at 748-49).

   [2] Kortgaard was sentenced under a mandatory sentencing
regime. Although the Court ultimately declared the Sentenc-
ing Guidelines to be “advisory” going forward, Booker, 125
S. Ct. at 757 (Breyer, J., opinion of the Court), for purposes
of the Sixth Amendment analysis under Booker we consider
the state of affairs at the time the defendant was sentenced.
See id. at 751, 769 (with respect to defendant Booker, finding
that a Sixth Amendment violation occurred under the manda-
tory Guidelines regime, and remanding for resentencing under
an advisory regime); Ameline, 409 F.3d at 1078 (finding con-
stitutional error in an enhancement “under the then-mandatory
guidelines”). At the time Kortgaard was sentenced in 2003,
pre-Blakely and pre-Booker, the Guidelines were “mandatory
and binding on all judges” and therefore had “the force and
effect of laws.” Booker, 125 S. Ct. at 750 (Stevens, J., opinion
of the Court). Moreover, there is no indication in the record
that the district court here treated the Guidelines as anything
other than mandatory and binding. Cf. Ameline, 409 F.3d at
1077 (stating that no Sixth Amendment violation occurs under
Booker where a “particularly prescient sentencing judge, pre-
Booker, had . . . made clear that he was treating the Guide-
lines as advisory rather than binding”).

   [3] It is inconsequential to our Sixth Amendment analysis
that upward departures under § 4A1.3 are discretionary, inso-
far as “the court may consider imposing a sentence departing
from the otherwise applicable guideline range” if certain pre-
requisite findings are made. U.S.S.G. § 4A1.3 (emphasis
added). As noted above, at the time Kortgaard was sentenced,
sentencing in accordance with the Guidelines was mandatory
13580             UNITED STATES v. KORTGAARD
and the district court here treated the Guidelines accordingly.
In such cases, “the judge is bound to impose a sentence within
the Guidelines range” supported by the jury’s verdict, the
upper limit of which represents the “maximum authorized”
sentence. Booker, 125 S. Ct. at 750, 756 (Stevens, J., opinion
of the Court). Although the judge has discretion to consider
a departure under § 4A1.3, the judge does not have unfettered
discretion to impose a departure; additional factual findings
are prerequisite. See U.S.S.G. § 4A1.3. In the absence of such
findings, the applicable Guideline range remains mandatory
and the judge has no authority to impose, nor is the defendant
eligible to receive, a greater sentence. “The judge acquires
that authority only upon finding some additional fact.”
Blakely, 124 S. Ct. at 2538, quoted in Booker, 125 S. Ct. at
751 (Stevens, J., opinion of the Court). “Whether the judi-
cially determined facts require a sentence enhancement or
merely allow it, the verdict alone does not authorize the sen-
tence.” Blakely, 124 S. Ct. at 2538 n.8. In other words, addi-
tional factual findings under § 4A1.3 are “necessary to
support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict.” Booker,
125 S. Ct. at 756 (Stevens, J., opinion of the Court). There-
fore, to satisfy the Sixth Amendment, the additional facts
(other than the fact of a prior conviction) “must be admitted
by the defendant or proved to a jury beyond a reasonable
doubt.” Id.

   [4] Under the mandatory Guidelines regime in effect at the
time Kortgaard was sentenced, the “maximum authorized”
sentence, or “the Guideline range supported by the jury ver-
dict alone,” was 21 to 27 months in prison. Booker, 125 S. Ct.
at 751, 756 (Stevens, J., opinion of the Court); see, e.g., id.
at 751 (calculating Booker’s maximum authorized sentence as
210 to 262 months under the Guidelines). Kortgaard’s actual
sentence, however, was 46 months, or 19 months longer than
the maximum Guidelines term supported by the jury verdict
alone. Consequently, if Kortgaard’s sentence was based on
facts, other than the fact of a prior conviction, not admitted by
                 UNITED STATES v. KORTGAARD               13581
Kortgaard or found by a jury beyond a reasonable doubt, then
the sentence violates his Sixth Amendment right to a jury
trial. See id. at 756.

                              B.

  Kortgaard contends that the district court’s decision to
depart upward under § 4A1.3 without submitting the issue to
a jury violates the Sixth Amendment because § 4A1.3
requires extra-verdict factual findings beyond the facts of
Kortgaard’s prior convictions and sentences. The Government
essentially contends that Kortgaard’s sentence is within
Apprendi’s exception for the fact of a prior conviction
because the sentencing judge’s findings under § 4A1.3 fol-
lowed as a matter of law from the fact of Kortgaard’s prior
convictions.

                               1.

   The mere fact that the sentencing judge considered prior
convictions in departing upward does not bring this case
within the exception for “the fact of a prior conviction” that
the Court carved out in Apprendi, 530 U.S. at 489-90 (deriv-
ing the exception from Almendarez-Torres v. United States,
523 U.S. 224 (1998)). The fact of Kortgaard’s prior convic-
tions was not the ultimate finding upon which the court based
the upward departure.

  The 2001 version of § 4A1.3 provides in pertinent part:

    If reliable information indicates that the criminal his-
    tory category does not adequately reflect the serious-
    ness of the defendant’s past criminal conduct or the
    likelihood that the defendant will commit other
    crimes, the court may consider imposing a sentence
    departing from the otherwise applicable guideline
    range. Such information may include, but is not lim-
    ited to, information concerning:
13582               UNITED STATES v. KORTGAARD
      (a) prior sentence(s) not used in computing the
      criminal history category (e.g., sentences for foreign
      and tribal offenses);

      (b) prior sentence(s) of substantially more than one
      year imposed as a result of independent crimes com-
      mitted on different occasions;

      (c) prior similar misconduct established by a civil
      adjudication or by a failure to comply with an
      administrative order;

      (d) whether the defendant was pending trial or sen-
      tencing on another charge at the time of the instant
      offense;

      (e) prior similar adult criminal conduct not resulting
      in a criminal conviction.

      A departure under this provision is warranted when
      the criminal history category significantly under-
      represents the seriousness of the defendant’s crimi-
      nal history or the likelihood that the defendant will
      commit further crimes.

U.S.S.G. § 4A1.3.3

  Uncounted prior offenses are clearly part of the inquiry
under § 4A1.3, but that is only where the inquiry begins, not
where it ends. The fact of prior offenses is merely one vari-
able that a sentencing judge may consider in a larger calculus.
The ultimate finding that must be made before departing
  3
   The 2003 amendments to § 4A1.3 reorganized the upward and down-
ward departure provisions and renumbered all subsections; however, the
operative text of the core provisions—the “seriousness” and “likelihood”
determination and the permissible factors—is practically identical. Com-
pare U.S.S.G. § 4A1.3 (Nov. 2001), with U.S.S.G. § 4A1.3 (Nov. 2004).
                  UNITED STATES v. KORTGAARD               13583
upward under § 4A1.3 is that “the criminal history category
significantly under-represents the seriousness of the defen-
dant’s criminal history or the likelihood that the defendant
will commit further crimes.” Id.; see United States v. Con-
nelly, 156 F.3d 978, 983 (9th Cir. 1998); United States v.
Myers, 41 F.3d 531, 534 (9th Cir. 1994). Accordingly, after
considering Kortgaard’s uncounted convictions, the district
court stated its finding that criminal history category III “sig-
nificantly under-represents the seriousness of [Kortgaard’s]
criminality and the risk of recidivism posed by him.”

                               2.

   [5] We also find that the ultimate § 4A1.3 determinations
of the “seriousness” of a defendant’s past misconduct and a
defendant’s “likelihood” of recidivism are factual matters.
Contending instead that these determinations are issues of law
following from the fact of a prior conviction, the Government
analogizes § 4A1.3 determinations to decisions classifying an
offense as a “violent felony.” See, e.g., United States v. Smith,
390 F.3d 661, 666 (9th Cir. 2004), amended by 405 F.3d 726
(9th Cir. 2005) (rejecting an Apprendi challenge to a sentenc-
ing enhancement under the Armed Career Criminal Act of
1984 (ACCA), 18 U.S.C. § 924(e)); see also United States v.
Von Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (per
curiam) (following Smith and holding that the determination
that a prior conviction is a “crime of violence” within
U.S.S.G. § 4B1.2 is a legal question outside the purview of
Apprendi, Blakely, and Booker). The analogy is not fitting.

   Terms like “violent felony” and “crime of violence” are
defined by statute and according to certain enumerated
elements. See, e.g., 18 U.S.C. § 924(e)(2)(B); U.S.S.G.
§ 4B1.2(a). Such determinations are essentially in-or-out, cat-
egorical classifications of individual offenses that follow nec-
essarily from the elements of the conviction and jury-found or
admitted facts; inquiry into the underlying facts of the convic-
tion is otherwise prohibited. See Von Brown, 417 F.3d at
13584            UNITED STATES v. KORTGAARD
1079-80 & n.4; Smith, 390 F.3d at 663-64 (discussing the cat-
egorical and modified categorical approaches).

   [6] By contrast, the Guidelines provide no statutory defini-
tion for “seriousness” and “likelihood,” let alone a definition
relying on the elements of the offense. Cf. U.S.S.G.
§ 4B1.2(a) (defining “crime of violence”). Section 4A1.3 is a
policy statement. It authorizes the sentencing judge to exer-
cise discretion, stating that the court “may consider” a depar-
ture, and it provides only examples of criminal histories that
a sentencing judge “might” or “may” find sufficient depend-
ing on the facts of a particular case. U.S.S.G. § 4A1.3; see
also id. § 4A1.3, cmt. background (“This policy statement
recognizes that the criminal history score is unlikely to take
into account all the variations in the seriousness of criminal
history that may occur. . . . This policy statement authorizes
the consideration of a departure . . . and provides guidance for
the consideration of such departures.”).

   In applying the “seriousness” factor, we have observed that
“it is the quality of the defendant’s criminal history not the
quantity which is decisive.” United States v. Segura-Del Real,
83 F.3d 275, 277 (9th Cir. 1996). “An upward departure under
§ 4A1.3 may not be based on mechanical calculations. It must
be justified, rather, by a qualitative difference between the
defendant’s overall record and that of other defendants in the
same criminal history category.” United States v. Carrillo-
Alvarez, 3 F.3d 316, 322 (9th Cir. 1993). For example, in Bad
Marriage, our analysis consisted of a comparative analysis
and relativistic judgments about the seriousness of the defen-
dant’s various prior offenses and his record as a whole. 392
F.3d at 1111-12. We surmised that “Bad Marriage’s record
reveals an individual ravaged by substance abuse, not a
depraved criminal” and concluded that “a departure was not
justified under the facts of this case.” Id. at 1112-13.

   In assessing a defendant’s “likelihood” of future recidi-
vism, we have analyzed “1) the quantity (or ‘repetitiveness’)
                  UNITED STATES v. KORTGAARD               13585
of uncounted criminal conduct, 2) the similarity of uncounted
criminal conduct to the offense conduct, and 3) the degree to
which the defendant has been deterred by prior sentences.”
Connelly, 156 F.3d at 985. Although some of these factors
look to objective facts (e.g., number of offenses), this test
clearly calls for comparative and qualitative assessments of a
defendant’s overall criminal record and pattern of criminality,
often including some judgments regarding the defendant’s
motives, morality, or state of mind. See, e.g., Bad Marriage,
392 F.3d at 1113 (“By far, the bulk of Bad Marriage’s crimi-
nal history consists of minor offenses, involving no threat to
human beings, committed while the defendant was intoxicat-
ed.”); Connelly, 156 F.3d at 985 (finding that the defendant’s
convictions for unauthorized use of a credit card and credit
card fraud were “strikingly similar” and “involve stealing
from people who trusted him”); Segura-Del Real, 83 F.3d at
278 (finding that the defendant’s “criminal history demon-
strated a total lack of recognition of the gravity of such
offenses and his propensity to continue to commit them”).
Moreover, the ultimate assessment of “the likelihood that the
defendant will commit other crimes” is quite literally an esti-
mate of the probability of a person’s future actions—
basically, a prediction of the future. The fact that such predic-
tions may be accurate, reliable, or based on objective informa-
tion simply does not change the nature of the inquiry.

   [7] We find that these inquiries are fundamentally factual
in nature. On the whole, applying § 4A1.3 requires an exer-
cise of discretion, qualitative and relativistic assessments of
the nature of a defendant’s overall record and pattern of crimi-
nality, and estimations of a defendant’s propensity towards
future recidivism. These determinations do not follow neces-
sarily from the fact of any prior conviction or sentence but
instead call for the judgment of a factfinder.

  Our conclusion is consistent with our prior characterization
and treatment of the “serious[ness]” and “likelihood” findings
under § 4A1.3 as “factual findings.” Myers, 41 F.3d at 534. In
13586                UNITED STATES v. KORTGAARD
Myers, we treated the district court’s authority to consider a
particular class of conduct (post-offense misconduct) as an
issue of law; however, we treated the district court’s findings
that the misconduct was sufficiently serious and indicated a
strong likelihood of future recidivism as “factual findings”
and reviewed for clear error. Id. at 533-34.4

   Moreover, the Supreme Court has characterized upward
departure determinations in general as “factual matters.”
Koon, 518 U.S. at 100. In rejecting the Government’s charac-
terization of such determinations as questions of law, the
Court stated:

      The Government seeks to avoid the factual nature of
      the departure inquiry by describing it at a higher
      level of generality linked closely to questions of law.
      The relevant question, however, is not, as the Gov-
      ernment says, “whether a particular factor is within
      the ‘heartland’ ” as a general proposition, but
      whether the particular factor is within the heartland
      given all the facts of the case. . . . What the district
      court must determine is whether the misconduct that
  4
    Our prior classifications of issues as ones of fact or law are instructive
even though the standards of review we once employed have since
changed. Myers applied the three-part test of United States v. Lira-
Barraza, 941 F.2d 745, 746-47 (9th Cir. 1991) (en banc), which prescribed
a different standard of review (de novo, clear error, and reasonableness)
for each of the three inquiries (legal authority to depart, factual findings
justifying departure, and degree of departure, respectively). As we recog-
nized in United States v. Beasley, 90 F.3d 400, 402-03 (9th Cir. 1996),
Lira-Barraza was effectively overruled by Koon v. United States, 518 U.S.
81, 91 (1996), wherein the Court held that upward departures were to be
reviewed for abuse of discretion only. Congress then amended 18 U.S.C.
§ 3742(e) to provide for de novo review of certain sentencing decisions.
PROTECT Act, Pub. L. No. 108-21, § 401, 117 Stat. 650, 670 (2003);
United States v. Daychild, 357 F.3d 1082, 1104-06 (9th Cir. 2004).
Finally, in Booker, the Court excised § 3742(e) in fashioning a remedy to
the unconstitutionality of the Sentencing Guidelines. Booker, 125 U.S. at
764 (Breyer, J., opinion of the Court).
                 UNITED STATES v. KORTGAARD               13587
    occurred in the particular instance suffices to make
    the case atypical. The answer is apt to vary depend-
    ing on, for instance, the severity of the misconduct,
    its timing, and the disruption it causes. These consid-
    erations are factual matters.

Id. at 99-100 (citation omitted). This factual “heartland” anal-
ysis is the basis for upward departures generally, including
those under § 4A1.3. See Connelly, 156 F.3d at 983 (describ-
ing both the generally applicable upward departure analysis
and the § 4A1.3 inquiry).

                               3.

   [8] We are also guided by our decision in United States v.
Tighe, wherein we stated that the prior conviction exception
“should remain a ‘narrow exception’ to Apprendi.” 266 F.3d
1187, 1194 (9th Cir. 2001) (quoting Apprendi, 530 U.S. at
490). As we noted in Tighe, the Apprendi Court derived the
prior conviction exception from Almendarez-Torres; however,
the Court also questioned the continuing validity of
Almendarez-Torres regarding the consideration of recidivism
in sentencing, construed it as “represent[ing] at best an excep-
tional departure from the historic practice that we have
described,” and therefore decided “to treat the case as a nar-
row exception to the general rule.” Apprendi, 530 U.S. at 487,
489-90. We treated it accordingly in Tighe and declined “to
extend Apprendi’s ‘prior conviction’ exception to include
prior nonjury juvenile adjudications on the basis of
Almendarez-Torres’ logic.” Tighe, 266 F.3d at 1194.

   We are faced here with another request to extend or broadly
construe Apprendi’s exception in order to include within it
issues that have not been submitted to a jury. We once again
decline to do so and continue to treat the exception as “a nar-
row exception to the general rule.” Apprendi, 530 U.S. at 489-
90; cf. Smith, 390 F.3d at 666 (holding that for purposes of
ACCA enhancements the modified categorical approach is
13588            UNITED STATES v. KORTGAARD
within the Apprendi exception so long as there is no inquiry
into the underlying facts of the conviction).

   [9] Apprendi stated the exception as covering “the fact of
a prior conviction,” not facts that are derived or inferred
therefrom. 530 U.S. at 490 (emphasis added); see also id. at
488 (“any ‘fact’ of prior conviction”). While the Court
repeated the “prior conviction” exception in both Blakely and
Booker, in neither case did the Court have the occasion to
redefine or expand its scope. Booker, 125 S. Ct. at 746-47,
756 (“reaffirm[ing]” Apprendi, and treating findings regard-
ing drug quantity, obstruction of justice, and level of partici-
pation as factual); Blakely, 124 S. Ct. at 2536, 2537 (quoting
Apprendi, and treating a finding of “deliberate cruelty” as fac-
tual). Even if the prior conviction exception legitimately
includes facts that follow necessarily or as a matter of law
from the fact of a prior conviction, we have already concluded
that the findings required to support an upward departure
under § 4A1.3 are not of that nature because they require the
judgment of a factfinder.

                              C.

   Because our holding today applies to upward departures
under § 4A1.3 generally, we need not reach Kortgaard’s argu-
ment under Tighe that the sentencing judge’s consideration of
Kortgaard’s Canadian convictions violates the Sixth Amend-
ment. We express no opinion as to whether Canadian convic-
tions or other foreign convictions, like nonjury juvenile
adjudications, lack the requisite due process protections to
qualify for Apprendi’s exception for the fact of a prior convic-
tion. Cf. Tighe, 266 F.3d at 1194.

   We also express no opinion with respect to whether the dis-
trict court’s decision to depart upward pursuant to § 4A1.3
constitutes “plain error” within the meaning of United States
v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Even if
Kortgaard failed to preserve the error below, the government
                 UNITED STATES v. KORTGAARD               13589
nonetheless elected to address the merits of Kortgaard’s chal-
lenge to the upward departure under § 4A1.3 without raising
the issue of waiver. In these circumstances, we conclude that
the government has “ ‘waived’ any waiver argument it may
have had.” United States v. Doe, 53 F.3d 1081, 1082-83 (9th
Cir. 1995) (holding that the government had waived its waiver
argument by failing to assert it and instead addressing the
merits of the defendant’s claim); see also United States v.
Booker, 375 F.3d 508, 515 (7th Cir. 2004) (not considering
the application of the plain error doctrine because the Govern-
ment did not argue that Booker forfeited his Sixth Amend-
ment challenge), aff’d, 125 S. Ct. at 769 (also not applying the
plain error doctrine). Accordingly, we treat Kortgaard’s claim
of Sixth Amendment error as preserved.

                         Conclusion

   [10] For the foregoing reasons, we hold that upward depar-
tures under § 4A1.3 of the Sentencing Guidelines involve fac-
tual findings beyond the fact of a prior conviction and are not
within Apprendi’s exception for the fact of a prior conviction.
Kortgaard was sentenced under a mandatory sentencing
regime, the district judge departed upward under § 4A1.3
based on judicially determined facts, and the actual sentence
exceeds the maximum authorized at the time based solely on
the jury’s verdict. Kortgaard’s sentence therefore violates the
Sixth Amendment, Booker, 125 S. Ct. at 756 (Stevens, J.,
opinion of the Court), and “is invalid,” Blakely, 124 S. Ct. at
2538. We therefore vacate the sentence and remand for resen-
tencing under the now-advisory Guidelines regime. See
Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the Court).

  SENTENCE VACATED AND REMANDED.
