concurring9 and dissenting.
The sentence of the district court is a denial of justice.
The majority now approves an unlawful Base Offense Level.
Since the Government has the burden of proving the Base Offense Level, to start at a Base Offense Level of 22 under § 2K2.1(a)(3), the Government would have to prove that Piggie possessed an assault weapon which was not permanently inoperable.
Title 18 U.S.C. § 921(a)(30)(A)(i) designates a Norinco rifle as a semiautomatic assault weapon. However, § 922(v)(3)(B)(ii) provides an exception to this designation where the weapon has been rendered permanently inoperable. Here, the Government stipulated the Nor-inco was inoperable but then failed to submit any evidence as to whether the rifle was permanently inoperable or not. By agreeing that the weapon was inoperable, but failing to take the further step to demonstrate that the weapon at issue was not permanently inoperable, the Government failed to meet its burden of proving that the Norinco was an assault weapon for purposes of U.S.S.G. § 2K2.1(a)(3).
*797Under the majority opinion, the Defendant has been denied justice by the sentence that he has received. Under the commentary to U.S.S.G. § 2K2.1(a)(3), the definition of “assault weapon” does not include a weapon which is exempted under the provisions of 18 U.S.C. § 922(v)(3)(B)(ii). This section provides that a firearm is exempt by reason of the fact that it is inoperable and is permanently inoperable. The Government has stipulated that at the time of the Defendant’s arrest, the Norinco was inoperable; however, it has produced no evidence that the gun is permanently inoperable. Having the burden of proof, the Government has failed to show the firearm is not exempt under the provisions of 18 U.S.C. § 922(v)(3)(B)(ii). Therefore, the Defendant cannot be assessed a Base Offense Level of 22.
What possible reason could the Government have for entering into a stipulation that the gun was inoperable? The Government was obviously “hoodwinking” the Defendant and his lawyer as to the requirements of the exemption statute. The Government knew or should have known that the Guidelines for exemption require that the rifle had to be permanently inoperable to be excluded. After the arrest, and at the time of the trial, the Government was in sole possession of the weapon. Thus, it was the only party who could prove whether the gun was permanently inoperable or not.
The Government’s actions lend the appearance of bad faith. Once the Government stipulated that the gun was inoperable, it was the Government’s burden to show that it was not permanently inoperable to establish a Base Offense Level of 22. I fail to understand why we should allow the Government to play “hide and seek” with the Defendant and this Court.
The majority also overlooks a portion of the objection made by defense counsel at the sentencing hearing. The trial counsel objected first to the Apprendi issue, but then added as follows:
I think the Court then has to make a factual determination because there has been none as to whether these enhancements should apply.... So I would then turn my factual argument to the Court and ask the Court to find that the government has not met its burden for the enhancement.
(emphasis added). If the district judge had heeded the objection, this appeal would not be here and the Defendant would only have been sentenced to a Base Offense Level of 20.
I fail to understand why the majority does not find Defendant’s counsel’s objection adequate. The words speak for themselves. Counsel is simply asking the court to make a factual determination as to whether these enhancements apply. The first part of the objection was clearly an Apprendi objection; however, the added objection could only relate to the absence of a finding as to the kind of firearms possessed by Piggie. Clearly, the Norinco should not have been counted as an assault weapon. Although the Government stipulated that it was inoperable, it failed to show that it was not permanently inoperable. Accordingly, it could not meet the definition of an assault weapon for purposes of 26 U.S.C. § 5845(a). The fact is, if the district court had made such a factual determination, it would have had to find that the Norinco assault weapon was inoperable at the time of trial. This being so, it was then clearly incumbent upon the Government to prove that the assault weapon was not permanently inoperable. Based on the Government’s proof, Piggie’s Base Offense Level should have been set at 20.
*798In the leading case of United States v. Hammer, then-Chief Judge Richard S. Arnold wrote:
The law of this Circuit is thus clear and consistent on the subject: the Confrontation Clause does not apply at sentencing, but facts relied upon by the District Court at sentencing must be proved by a preponderance of the evidence. The burden of proof is on the government with respect to the base offense level and any enhancing factors.
United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993) (emphasis added).
There is no question that the Defendant did not admit the facts alleged in the pre-sentence report (to-wit, that the guns found in Piggie’s possession were all operable). Furthermore, there is no question that the Defendant did object as to the absence of the identity of the guns that were involved. Had this objection been sustained, the Government would have been required to show that the Norinco assault weapon was not permanently inoperable.
In all fairness to both sides, I feel this matter should be remanded to the district court to hold an evidentiary hearing as to whether the Norinco assault weapon was in fact permanently inoperable. The case could then be decided on the basis of law rather than fiction.
We deal here with a question of a man’s liberty. If a person’s liberty is unlawfully denied for one day, one month, or one year, the court commits a crime of unlawful punishment. This is not a game we play. It is true that our criminal justice system best survives under an adversarial process, but in doing so, the court should not allow this system to hide the truth and allow our trials to turn into a sporting event. On this basis we should remand the case to the district court to ascertain the truth.
For the foregoing reasons, I dissent.
. I concur in Part IIA and C of the majority opinion. I agree Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), has no application to Piggie’s case. This is consistent with our earlier decision in United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000).