with whom Judges BROWNING, PREGERSON and TASHIMA join, dissenting:
Under the “three strikes” statute, a criminal defendant must be committed to life imprisonment even when he or she is probably innocent of the qualifying conduct. This defendant will spend the rest of his life in prison because he cannot muster clear and convincing proof that he was innocent of an act allegedly committed a quarter of a century ago. Because I would join the Sixth Circuit in holding that the statute imposes an unconstitutional burden of proof on the defendant, I respectfully dissent.
I
Congress enacted the so-called “three strikes” statute, 18 U.S.C. § 3559(c)(1), as part of a laudable attempt to punish and deter violent recidivist offenders. But Congress’ grasp exceeded its intended reach. The legislative history of the statute clearly evinces the intent to reach only “serious violent felonies.”1 The statute nevertheless includes non-violent felonies as qualifying offenses. It does so by categorically counting as “strikes” certain non violent crimes, such as conspiracy to commit robbery, and others that may or may not involve a violent act, such as robbery.2
*1201To conform the statute’s broad reach to the Congressional aim of punishing only the most serious and violent recidivist offenders, the statute allows defendants to escape the sweeping net cast by inclusion of non-violent felonies. The defendant can only do so, however, if he or she can prove by clear and convincing evidence that the crime did not involve a threat or use of a dangerous weapon and did not result in serious bodily injury. See § 3559(c)(3)(A).3
Thus, under the three strikes statute, crimes such as purse-snatching and pickpocketing may qualify as “serious violent felonies” and “strikes” because those crimes may be defined as “robbery” under applicable state law. A defendant can avoid a life sentence for three such convictions only by proving by clear and convincing evidence that no serious bodily injury occurred and that there was no threat or use of a dangerous weapon. When the convictions are over twenty years old, as they are in this case, it is difficult to muster even a preponderance of evidence, much less clear and convincing proof. Witnesses to such an ancient event are often gone; physical evidence has almost certainly disappeared. The only proof generally available is the convicted defendant’s own words which, in the real world, are rarely clear and convincing at sentencing.
In the case of common purse-snatching by use of a knife to cut the strap, no defense likely would be available because the crime would involve use of a dangerous weapon. If one believes the legislative history, Congress did not intend to send purse-snatchers, pick-pockets, and bread thieves like Jean Valjean4 to prison for their natural lives, but that is the consequence of this statute.
This case provides a perfect paradigm of the problem. Kaluna’s instant offense counted as one strike. A theft of the E.J. Marshal jewelry store with a knife counted as the second. The third “strike” that committed Kaluna to a life in prison was a robbery of Bill’s Bakery in Honolulu.5 Unlike Jean Valjean, Kaluna did not steal bread from the bakery; rather, he removed $245 from the till. After he was apprehended, Kaluna pled guilty to second-degree robbery pursuant to Haw.Rev. Stat. § 708-841 (1975). The difference between robbery in the first degree and robbery in the second degree in Hawaii is the presence or absence of a dangerous weapon. See Haw.Rev.Stat. §§ 708-840 to - 841; State v. Halemanu, 3 Haw.App. 300, 650 P.2d 587, 592 (1982); see also Haw. Rev.Stat. § 708-841 commentary (1993). For this offense, Kaluna was sentenced to six month’s probation; the sentencing court did not deem the crime worthy of any prison time.
Under the three strikes law, the Bill’s Bakery robbery qualified as a “strike” because it was a conviction for second-degree robbery, and thus a “State offense, by whatever designation and wherever committed, consisting of ... robbery” under 18 U.S.C. § 3559(c)(2)(F). To avoid classification of the offense as a “strike,” Kaluna had to show by clear and convincing proof that the Bill’s Bakery robbery did not involve a threat or use of a dangerous weapon and did not result in serious bodily *1202injury. Thus, Kaluna qualified for life imprisonment because he was guilty of second-degree robbery, but could save himself by proving by clear and convincing evidence that he was not guilty of first-degree robbery.
It may be unique in our criminal law that one may only avoid the impact of one statute by proving oneself innocent of another, but that is the import of the three strikes law. In this case, Kaluna chose to show he was not guilty of first-degree robbery by referencing his plea agreement, in which he admitted only that he was guilty of second-degree robbery. Normally, because the government put on no proof that he was guilty of first-degree robbery, his defense probably would be sufficient. But because Kaluna bore the burden of proof, and his plea alone was not “clear and convincing,” the district court imposed the strike.
The result is that Kaluna, who pled guilty to the second-degree robbery of Bill’s Bakery, was sentenced as if convicted of first-degree robbery. See Richardson v. United States, 526 U.S. 813, 119 5.Ct. 1707, 1712, 143 L.Ed.2d 985 (1999) (“Where sentencing is at issue, the judge, enhancing a sentence in light of recidivism, must find a prior individual conviction ... which means that an earlier fact-finder ... found that the defendant committed the specific earlier crime ”) (emphasis added); Taylor v. United States, 495 U.S. 575, 601-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (noting, in the context of considering what burglaries qualify as predicate offenses under 18 U.S.C. § 924(e), that “[I]f the guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.”). Kaluna was thus deprived of the opportunity to have a jury assess the “facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed.” Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1229, 143 L.Ed.2d 311 (1999) (Scalia, J., concurring).
II
Of course, that a statute may have harsh results is no cause to declare it unconstitutional. But a sentencing process, like a criminal trial, must satisfy the requirements of due process. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality). Due process at sentencing typically requires that the government prove enhancing factors by a preponderance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); United States v. Restrepo, 946 F.2d 654, 658-59 (9th Cir.1991) (en banc). Moreover, the “preponderance” standard is not constitutionally adequate in all sentencing cases. Rather, due process requires a higher standard of proof where the factor to be proved would have “an extremely disproportionate effect on the sentence relative to the offense of conviction.” Restrepo, 946 F.2d at 659; see also Witte v. United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (noting that the defendant did not argue that the court’s consideration of the sentencing factor was “so significant, that [it became] ‘a tail which wags the dog of the substantive offense’ ”) (quoting McMillan, 477 U.S. at 83-84, 106 S.Ct. 2411); United States v. Townley, 929 F.2d 365, 370 (8th Cir.1991) (recognizing the heightened due process concerns where the sentencing factor tail wags the dog of the substantive offense).
Under narrowly circumscribed conditions, the burdens of production and proof may be shifted to a defendant in a criminal case. For example, where a defendant relies on an exception to a criminal statute, he generally bears the burden of establishing and showing that he comes within that exception.6 See United States v. Graven*1203meir, 121 F.3d 526, 528 (9th Cir.1997); United States v. Freter, 31 F.3d 783, 788 (9th Cir.1994); Walker v. Endell, 850 F.2d 470, 472 (9th Cir.1987). None of the “statutory exception” cases impose a “clear and convincing” burden of proof on the defendant, however. Indeed, in some circumstances, the burden of proof may not be shifted to the defendant at all. See Gravenmeir, 121 F.3d at 528 (noting that the burden ought not to be shifted to the defendant when it is “overbearing”).7
“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (citations and internal quotation marks omitted). As the government increases a defendant’s burden of proof, that defendant concomitantly shoulders an ever-increasing risk of an erroneous decision. See id. At some point, placing a particular burden of proof on a criminal defendant violates the Due Process Clause. The question presented by this case is whether, in placing a “clear and convincing” burden of proof on defendants who seek to invoke section 3559(c)(3), Congress has reached that juncture.
The Supreme Court articulated the due process principles by which courts should examine burdens of proof in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Cooper, the Court struck down an Oklahoma statute creating a presumption that a criminal defendant was competent to stand trial unless he proved his incompetence by clear and convincing evidence. See id. at 368-69, 116 S.Ct. 1373. Two state-employed psychologists had offered conflicting opinions regarding the defendant’s competence. See id. at 351, 116 S.Ct. 1373. Although the trial judge noted that the question was a close one, he ultimately concluded that the defendant had not carried his burden by “clear and convincing” evidence and would therefore be tried. See id. at 351-52, 116 S.Ct. 1373. In holding the statute unconstitutional, the Supreme Court rejected the notion that a state could “proceed with a criminal trial after the defendant has demonstrated that he is more likely than not incompetent.” Id. at 355, 116 S.Ct. 1373. The Court’s analysis focused on two main inquiries. First, the Court considered the historical and contemporary practices of most jurisdictions to determine whether the heightened standard of proof “vindicate[d] the State’s interest in prompt and orderly disposition of criminal cases,” or offended “a principle of justice that is deeply rooted in the traditions and conscience of our people.” Id. at 360-62, 116 S.Ct. 1373 (citations and internal quotation marks omitted). Second, the Court asked whether an evaluation of the risks inherent in requiring a clear and convincing standard of proof led to the conclusion that the practice was consistent with due process. See id. at 362-63, 116 S.Ct. 1373.
Addressing the first question, the Court observed that almost all other jurisdictions applied a standard that was more protective of a defendant’s rights than was Oklahoma’s “clear and convincing” rule, providing evidence that the rule did, in fact, violate a deeply-rooted principle of justice. Id. at 360-62, 116 S.Ct. 1373.
Turning to the second question, the Court explained that the risk of error was very high and that the consequences of *1204error for the defendant were dire. See id. at 363-64, 116 S.Ct. 1373. The risk of error was high because, unlike a preponderance standard, which would affect only a narrow class of eases in which the evidence on either side was equally balanced, a clear and convincing standard would affect a class of cases in which the defendant had demonstrated that, more likely than not, he was incompetent. See id. The consequences of error would be dire because, if the court erroneously found Cooper competent, his inability to assist in his own defense would deny him a fair trial. See id. at 364, 116 S.Ct. 1373. By contrast, the Court noted, the “injury to the State of the opposite error-a conclusion that the defendant is incompetent when he is in fact malingering-is modest.” Id. at 365, 116 S.Ct. 1373.
Ultimately, the Court concluded that, in the context of a competency determination, the Due Process Clause would not permit a state to allocate to a criminal defendant “the large share of the risk which accompanies a clear and convincing evidence standard.” Id. at 366, 116 S.Ct. 1373; see also McMillan, 477 U.S. at 83-84, 106 S.Ct. 2411 (affirming the Pennsylvania Supreme Court’s upholding of Pennsylvania’s Mandatory Minimum Sentencing Act where the Pennsylvania Supreme Court had reasoned that the risk of error under the Act was slight).
The Court recently held in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), that an acquittal in a criminal case did not preclude the sentencing judge from enhancing a sentence based on the facts underlying the alleged crime. Watts reaffirmed that the “preponderance standard at sentencing generally satisfies due process” but noted that there was a divergence among the circuits as to whether “relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.” Id. at 156, 117 S.Ct. 633.
18 U.S.C. § 3559 turns these principles on their head. It places a negligible burden of proof on the prosecution,8 but forces the defendant to shoulder one of the highest burdens extant in the law: proof by clear and convincing evidence. As one court explained, “[i]n order to be ‘clear and convincing,’ evidence must be of ‘extraordinary persuasiveness.’ ” State v. Johnson, 131 Or.App. 561, 886 P.2d 42, 44 (1994).9 Thus, rather than embracing the notion of “shared risk” as articulated in Cooper and as approved in McMillan, the statute imposes a Sisyphean evidentiary weight on the defendant. The effect on this case is not trivial. Indeed, the standard of proof employed will probably determine whether Kaluna will spend the rest of his life in prison. But that is what the statute commands. Placing a “clear and convincing” burden on the defendant means that he must be deemed guilty of a qualifying offense even when it is more likely than not that he is innocent.
Such a scheme cannot pass constitutional muster. First, the Supreme Court has never held that a defendant may, consistent with due process, assume a clear and convincing standard of proof as to matters which “dramatically increase the sentence.” Watts, 519 U.S. at 156, 117 S.Ct. 633. In fact, the salient question in sentencing cases has been not whether the *1205defendant, but rather whether the prosecution should be held to a higher burden of proof. See, e.g., McMillan, 477 U.S. at 83, 106 S.Ct. 2411; Restrepo, 946 F.2d at 659-60; United States v. Lombard, 72 F.3d 170, 176-80 (1st Cir.1995); Witte, 515 U.S. at 402-04, 115 S.Ct. 2199; Townley, 929 F.2d at 370; United States v. Trujillo, 959 F.2d 1377, 1382 (7th Cir.1992); United States v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir.1990).
Where, as here, an enhancement provision results in a great disparity between the sentence for the crime charged in the indictment and the sentence imposed, courts have placed a higher burden on the prosecution. As the Third Circuit has noted, “[i]n this extreme context, ... a court cannot reflexively apply the truncated procedures that are perfectly adequate for all of the more mundane, familiar sentencing determinations.” Kikumura, 918 F.2d at 1101. Thus, precedent suggests that the high burden of proof placed here on the defendant cannot stand.
Second, the statute creates a grave risk of error. The “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” Cooper, 517 U.S. at 362, 116 S.Ct. 1373 (quoting Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 283, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)). Because the sentence enhancement is founded on historical events, the probability of an erroneous decision under section 3559(c)(3)(A) is substantially higher than the corresponding risks in either Cooper or McMillan. In Cooper, the issue was the defendant’s present competency, one which could be assessed from the evidence at hand. 517 U.S. at 350, 116 S.Ct. 1373. In McMillan, the sentencing factor was visible possession of a firearm in the commission of the charged crime, again a fact which could be readily ascertained within the case context. 477 U.S. at 84, 106 S.Ct. 2411.
Here, by contrast, the prosecution seeks to use the almost twenty-five year old conviction for the second-degree robbery of Bill’s Bakery as Kaluna’s “third strike.” In order to avoid a life sentence, Kaluna must assemble clear and convincing proof that he did not use, or threaten to use, a firearm or another dangerous weapon in a crime to which he pled guilty over two decades ago. That task would be formidable under a mere preponderance standard; it becomes a near-futile exercise under the constraint of producing “clear and convincing” proof. The uncertainties inherent in relying on a decades-old, undeveloped, and ambiguous record underscore the substantial risk of the court making an erroneous determination based solely on the high burden of proof imposed on the defendant.
Finally, the consequences of an erroneous determination are severe. Even if Kaluna were able to show that, more likely than not, he did not use or threaten to use a firearm or other dangerous weapon in the Bill’s Bakery robbery, the statute would mandate life imprisonment. The district court imposed a life sentence on Kaluna based entirely on the standard of proof, specifically finding that Kaluna had failed to meet his burden “to preclude the use of any of his convictions.” The similarities with Cooper are obvious: for Kalu-na and those in like situations, the risk of error is high, and the consequences extreme.
Thus, notwithstanding the less stringent constitutional standards which govern sentencing, see Restrepo, 946 F.2d at 658-59, 18 U.S.C. § 3559 violates due process. Congress may not, as it has sought to do here, “advance the objectives of its criminal laws at the expense of the accurate factfinding owed to the criminally accused who suffer the risk of nonpersuasion.” McMillan, 477 U.S. at 102, 106 S.Ct. 2411 (Stevens, J., dissenting). Rather, the values underlying procedural due process-particularly those of, accuracy and the appearance of fairness-require a more equal distribution of the risk than is contemplated by this statute.
*1206The Sixth Circuit has recently considered these matters and reached the same conclusion. See United States v. Gatewood, 184 F.3d 550, 553-55 (6th Cir.1999). As Judge Merritt put it: “The defendant’s burden of proof under § 3559(c)(3)(A) of the three-strikes statute thus fails to exhibit ‘fundamental fairness’ as defined in Cooper’s Due Process analysis because it imposes such a high risk and cost of error on defendants.” Id. at 554-55.
For these reasons, the statute’s imposition of a clear and convincing burden of proof unconstitutionally deprives defendants of due process of law.
Ill
The majority goes to some lengths to elude the crucial question of whether a clear and convincing evidentiary burden may be constitutionally placed on a criminal defendant at sentencing. To avoid that decision, the majority conducts a new analysis of crimes upon which the district court did not rely,10 and makes the factual determination that the defendant would not have satisfied an adjusted burden of proof.11 Indeed, the majority goes on to make the affirmative finding that “Defendant would lose as a matter of law even if the government bore the burden of proof.” Those are findings not made by the district court, and the crimes cited by the majority were not the basis of the district court’s sentencing decision.
Except in cases of de novo review, it is generally improper to decide issues that were not the basis of the appealed decision. See Peralta v. Heights Med. Ctr., 485 U.S. 80, 86, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). This is especially so in the context of sentencing. As former Chief Judge Wallace has observed, “ordinarily the district judge on remand, who is more fully advised by specific arguments of counsel, is better situated to make an informed determination than is an appellate court answering its own' hypothetical questions.” United States v. Jenkins, 884 F.2d 433, 441 (9th Cir.1989) (Wallace, J., concurring). Indeed, “[i]n cases where an appellate court determines that an improper burden of proof was applied, the normal course is to remand so that evidence can be reexamined in light of the appropriate standard.” Mason v. Vasquez, 5 F.3d 1226, 1227 (9th Cir.1993) (Pregerson, J., dissenting).
Thus, the doctrine of harmless error is misapplied. The harmless error doctrine supports the fact-finder; it is not the function of the doctrine to allow appellate courts to make new findings. In support of its decision to apply the “three strikes” statute, the district court specifically identified three robberies. As to those robberies, she determined preliminary qualification, assessed the defendant’s proffered evidence under the statutory standard, then determined statutory eligibility. The defendant was sentenced on the basis of those findings. It is not within our province to sentence the defendant based on considerations outside the sentencing deci*1207sion. Courts of Appeals are not sentencing courts.
Our charge, even if we were to apply a harmless error standard, is to assess whether the constitutional error is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In this case, one cannot say that the evidence concerning the Bill’s Bakery robbery is so compelling that the constitutional error was harmless beyond a reasonable doubt. Indeed, the evidence is arguably in equipoise. Accordingly, the proper course is to determine the correct burden of proof, and remand for resentencing. At that point, the district court might chose to conduct a full analysis of other potentially qualifying crimes. However, it is beyond our dominion to do it in the first instance.
The majority seems to imply that a criminal defendant lacks standing to challenge the constitutionality of the statute under which he or she is sentenced, absent a preliminary evidentiary showing. If so, this is incorrect. As a criminal defendant, Kaluna may challenge the statute he is charged with violating and under which he is sentenced. See United States v. Wright, 117 F.3d 1265, 1274 n. 18 (11th Cir.1997) (“as a criminal defendant, Wright has ‘standing’ to assert a constitutional challenge to the statute he is charged with violating”), vacated in part on other grounds by 133 F.3d 1412 (11th Cir.1998). Every time the Supreme Court has considered a constitutional challenge to an evi-dentiary burden, it has proceeded to the merits without imposing an evidentiary predicate. For example, in the seminal case of Patterson v. New York, the defendant challenged on due process grounds a New York law requiring criminal defendants to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence. 432 U.S. 197, 198-99, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The defendant argued that this improperly shifted the burden of persuasion from the prosecutor to the defendant. See id. at 200-01, 97 S.Ct. 2319. The Court did not preliminarily assess whether the defendant had met his burden, or whether the prosecution would have met its burden had the defendant’s argument prevailed; instead, the Court addressed the defendant’s challenge squarely. See id. at 205-06, 97 S.Ct. 2319.
Historically, the Court has addressed defendants’ allegations of unconstitutional burden-shifting immediately and directly without the evidentiary assessment that the majority requires.12 Likewise, in its recent opinion on the very question at hand, the Sixth Circuit did not first require the defendant to tender a quantum of proof before considering his constitutional challenge. See Gatewood, 184 F.3d at 552-54 (directly addressing the defendant’s challenge without requiring an evi-dentiary predicate and also noting that “[t]he defendant provided no proof that any of his previous robbery felonies were ‘nonqualifying.’ ”).13 Courts do not generally require a criminal defendant to first *1208prove his or her case before deciding what burden of proof ought to be shouldered.
Thus, although acting in good faith, the majority attempts to finesse an issue that it should not avert. The adage that constitutional questions ought to be avoided is certainly still sound advice. However, this constitutional question is squarely and fairly presented. It is founded on the findings that form the basis of the district court decision. Assembling new findings on appeal and conducting hypothetical analyses on the reconstituted decision stretches our domain too far.
Further, by relying on harmless error, the majority implies that there is error. In so doing, it does a disservice to district court judges, who must labor to apply the statute, by failing to articulate the correct standard. Rather than deferring the question for another day, mandating an imposing evidentiary predicate makes the issue effectively unreviewable in the future. Thus, the appropriate course is to decide the question presented by the parties, and commit the sentencing decision to the capable hands of the district court.
IV
Few would quarrel with the notion that recidivist violent felons should receive stiff punishment, and Bryan Kaluna is no Jean Valjean, as the majority has ably shown. Yet, before, as Victor Hugo put it, “society withdraws itself and gives up a thinking being forever,” we must assure ourselves that the defendant has been accorded due process of law in sentencing. Requiring a life sentence when the defendant is probably innocent of the qualifying act does not comport with due process. Thus, I would join the Sixth Circuit and hold the “clear and convincing” burden of proof imposed on defendants unconstitutional.
I respectfully dissent.
. Indeed, the enumerated crimes are denominated as "serious violent felonies.” See 18 U.S.C. § 3559(c)(2)(F). The House Report on the bill containing the three strikes legislation stated:
H.R. 3981 addresses three problems in the criminal justice system. The first problem is that violent crime in America has reached an unacceptable level. In 1992, there were I,982,274 violent crimes, 23,760 of which were murders .... H.R. 3981 ... is intended to take the Nation's most dangerous recidivist criminals off the streets and imprison them for life.
H.R. Rep. 103-463, 1994 WL 107574, at *11 (1994) (emphasis added).
The report further noted testimony received by the subcommittee about the brutal murder of Polly Klaas, a thirteen-year old Petaluma, California girl; the rape of state Senator Susan Sweetser; the savage rape and fatal strangulation of nineteen-year old Stephanie Schmidt; and the execution-style murder of Richard Adams. See id. at *16; see also 1994 WL 222776, at *5 (1994) (statement of Representative Livingston noting that "[The three strikes law] does apply to violent felons-and only violent felons.”); 140 Cong. Rec. S12393-94 (daily ed., Aug. 24, 1994) (statement of Representative Dorgan in support of the three strikes law citing the murders of Patricia Lexie and James Jordan). The entire thrust of the legislative history is toward the reduction of serious violent crime.
. In 18 U.S.C. § 3559(c)(2)(F), Congress defines the term "serious violent felony” for the purpose of § 3559(c)(1) to include "(i) a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in section 2111, 2113, or 2118); ... or attempt, conspiracy, or solicitation to commit any of the above offenses .... ” (emphasis added).
.That section provides in relevant part that "[rjobbeiy ... shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that — (i) no firearm or other dangerous weapon was used in the offense and no threat of the use of a firearm or other dangerous weapon was involved in the offense and (ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.” 18 U.S.C. § 3559(c)(3)(A).
. Valjean was convicted of "housebreaking and robbery” for stealing a loaf of bread. Victor Hugo, Les Miserables, 93 (Norman Denny trans., Penguin Books 1976) (1862). He served nineteen years for the crime, counting sentence extensions for attempted escape.
. The district court noted several other robberies might qualify as "strikes,” but declined to make that ultimate finding, relying instead on the three identified crimes.
. The panel opinion persuasively argues that the “exception'1 in this case is actually a sen*1203tencing “element,” rebutting the majority's analysis of this question. See United States v. Kaluna, 152 F.3d 1069, 1077-80 (9th Cir.), withdrawn 161 F.3d 1225, 1225-26 (9th Cir.1998).
. It is the doubtful that the sentencing scheme imposing a life sentence would pass constitutional muster even if the defendant’s burden were a preponderance. See United States v. Harrison-Philpot, 978 F.2d 1520, 1523 (9th Cir.1992); Restrepo, 946 F.2d at 659-60; see also Kaluna, 152 F.3d at 1080-82.
. Indeed, the government argues that § 3559 puts no evidentiary burden on the government at all. Rather, its only duty is, as the government put it at oral argument, "to get the ball rolling" by producing certified copies of the past second-degree robbery convictions. Therefore, it claims it need not prove by even a preponderance of evidence that three serious violent felonies have been committed.
. As we noted in Eastwood v. National Enquirer, Inc., imposing a “clear and convincing” evidentiary standard is "a means of protecting society from the consequences of grave decisions too lightly reached." 123 F.3d 1249, 1252 n. 5 (9th Cir.1997). This statute inverts this logic by imposing grave consequences unless clear and convincing proof is tendered.
. The district court noted that the statute did not "preclude the use" of several other prior crimes. However, the court recognized that "this finding does not automatically authorize use of all three prior occasions of conviction for sentencing under 18 U.S.C. § 3559(c)(1)." The court only conducted a full analysis of two prior offenses, finding that those convictions “permit their use as the two prior serious violent, felony convictions required for sentencing under the [Act].” Thus, the court reasoned, "[i]t is thferefore unnecessary to conduct such an analysis on the other convictions qualifying as serious violent felonies here.”
. Referring to the question of whether the statute imposes an unconstitutionally high burden of proof, the majority holds that "[w]e need not and do not reach that issue, because defendant failed to establish the affirmative defense even under the lowest standard of proof available, preponderance of the evidence.” Supporting this rationale, of course, is the doubtful proposition that the sentencing scheme imposing a life sentence would pass constitutional muster even if the defendant’s burden were a preponderance. See Kaluna, 152 F.3d at 1080-82.
. See, e.g., Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (considering Kentucky's burden-shifting persistent felony offender sentencing statute on the merits without requiring defendant to meet an evidentiary predicate); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (considering improper burden-shifting jury instruction without requiring defendant to show the shifted burden would have made a difference); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (considering on the merits without an eviden-tiary predicate a constitutional due process challenge to Maine’s statute requiring a defendant to prove that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter); Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (addressing a defendant’s challenge to an Oregon statute requiring a criminal defendant to establish the defense of insanity beyond a reasonable doubt without first requiring him to tender any evidence).
. Thus, the majority creates a procedural inter-circuit conflict with the Sixth Circuit, as well as one on the merits.