concurring specially.
I generally concur in the majority opinion prepared by Judge Wollman except to the extent that it differs with the reasoning in my dissent in United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (en banc). I must confess, however, that the majority opinion in Galloway now makes the due process and confrontation issues in this case very close questions. The Galloway majority fends off the dissenting view that use of U.S.S.G. § 1B1.3(a)(2) results in manifest injustice, with the following observation:
The commentary makes clear that “[t]he sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.” U.S.S.G. § 6A1.3 comment.
When uncharged conduct is alleged as relevant conduct to substantially increase the sentencing range, district judges are authorized to require the United States Attorney to undertake the burden of presenting evidence to prove that conduct. In the final analysis, the determination of what is relevant conduct is a factual question to be decided by the district judge. The record in this case demonstrates that the Assistant United States Attorney was prepared to assume the appropriate burden and to present evidence of the uncharged conduct before the district court in the sentencing proceedings. The district court foreclosed such efforts by its ruling on the constitutional issues. We are satisfied that on remand, the sentencing inquiry will be conducted according to such standards.
Galloway, 976 F.2d at 427-28. I suggest that such fact finding under section lB1.3(a)(2) puts a different gloss on the nature of the sentencing proceeding. Obtaining information for use under U.S.S.G. § 1B1.4 is one thing, gathering it for the purpose of creating greatly increased sentencing ranges under section lB1.3(a)(2) is another.
I also differ with the majority opinion in this case if there is any implication in the fourth paragraph on page 399 that the federal district courts were not, pre-guide-line, “.honest” in carrying out their sentencing responsibilities. Laws enacted by Con*414gress that provided a basis for routine alteration of judicial sentences by the executive branch may support this lack of “honesty” observation. This was, however, a matter over which the sentencing courts had little, if any, control. Further, I do not join in the first sentence of the fifth full paragraph in the second column on page 402. The guidelines do, in fact, impose some element of every state of mind referred to in that sentence.