in increasing his base offense level for having a prior kind of crime of violence second the district court erred in imposing a four level enhanced meant for possession of a firearm in connection with another felony offense here carrying weapons first because of the issue here is mostly summer to the issue that was argued yesterday in mr mcgee's case i will focus on the plus four four in possession with another felony offense under iowa law an individual is not guilty of carrying weapons violation if your she goes armed with a dangerous weapon in the person's own dwelling or place of business or on land owner possessed by the person in cases of sentencing enhanced minutes if there is a statutory exception as there is here it is the government's burden to prove that that statutory exception does not apply the government here fail to meet its burden to prove that the statutory exception does not apply the record is incredibly limited on facts and what occurred during the conduct that was the basis for the four level enhanced minutes the only facts we have are in the p s r itself it's states that a confidential informant met with mr chapman at an address and that m walked out to the confidential informants vehicle there's also a brief questioning by the dis so that is in the objections to the p s r and the defense's position is that's not part of the record  in response to the objections to the p s r well and that's another fighting issue on this appeal in our position is that it's not part of the record the circuits case a lot of the cape may not be a injury that's more accurate that's correct that's not something that the court can rely upon to impose the four level of handsome and that's just a manner of the way the southern district handles these objections to the p s r the government attempts to rely upon the a done to the p s r where the probation officer just kind of provides a narrative about why they think that the action is incorrect but the circus case not indicates that when a defense attorney or any attorney makes an objection assertion that would support a sentencing enhanced meant what that does is that puts the government on notice as to what it must prove at the actual sentencing hearing to find that a probation officer response to an objection somehow means that the government doesn't have a burning to do anything at the hearing to put on evidence except to cross examination just is not consistent with the case law and practically it would just bog down the district court's time because then it could just create this back and forth between defense counsel probation where they're just filing responses to each other if the government's correct that defense counsel has to keep objecting every time a probation officer files a response to an objection but regardless the case law is clear is that that's not how it works the government must put evidence to prove what is objected to at sentencing and here the government simply failed to do that but even if this court were to consider this response it's still kind of  vague there's references to a multifamily dwelling and that it might be a duplex and i think even what the probation officer says is still may not provide it's just kind of the probation officer rambling and not really providing concrete fa we're still in the home the cases we relied upon in the brief are the pay and both cases and those deal with granite it's a little bit different deals with public intoxication but those are questions those cases involve questions of and someone in the public and those cases take a property rights approach which is similar to the language and the statutory exception of carrying weapons and while davidson the case that the government relies upon dealt with an apartment building and being in a common area of an apartment building an individual who lives in an apartment building doesn't have the authority to prevent the general public from coming in our position is that  what i believe is what this was or is more akin to a single family home and later iowa case law on public intoxication and the case that that would be an individual's property rights that wouldn't be an area open to the public unlike in davidson but simply the the record is very big and it's difficult to even make a determination even under the preponderance of the evidence standard that that doesn't fall within the carrying weapons exception and that it wasn't mr intoxication case but they don't sound like that but it's also really vague as to what the parking lot even is if is it a massive parking lot is it just as there are just too duplexes and it's a smaller parking lot we don't know that the government the only testimony came for questioning by the district court to the probation officer and that questioning was dead mr chapman report this as his residence no ok and that was i'm summarizing but it really was quite short questioning and that was the extent of the evidence put on by the government or by anyone on this point the government didn't call any other witness to try and disprove that the stack story exception did not apply and it was objection to the factual paragraph but i don't think that's necessary because it doesn't really say anything it just it's a very short factual paragraph on offense conduct all it says is that and i have it right in front of me the factual paragraph that the confidential informant met with mr chapman at a residence and it states the address in des moines iowa chapman walked out to the informant's vehicle and they there was an exchange of the firearm and then mr chapman went back in the residence paragraph number seven your honor and so that doesn't answer the question of did he live here where did he walk out to was it a private driveway or was it on his land and the objection put the government on notice that they were asserting that it was his family and because the case was clear that the government has the burden to prove that that statutory exception doesn't apply that they had the burden to do that at the hearing and simply failed to do s this situation is a little bit unusual in the sense that the defendant when he objects when mr chapman objected saying hey i was on my property when i had this gun at that point the probation officer did some more investigation and in the a dent into the report the probation officer reported when we interviewed the well this was information that the probation officer developed after after he interviewed the defendant and the court can rely on that the ape circuit cases or cited in our brief that talk about how the judge can rely on any information that has a reasonable indicia of reliability here this information developed by the u s probation office this is an agency an arm of the court that trained to investigate fact and he also stated at the sentencing hearing the judge says did we have her and that that's the one thing that's the most important fact here at the time he committed this offense mr chapman was already on federal supervised rel for another gun offense so he was reporting to the probation office he was required to tell them where he lived and as the probation office indicates in his in the objection when they were replying to the objection he never reported to us at any time that he was living on mckinley avenue he never told us his last and that once he raised the defense of the exception if you want to put it that way it was your duty to offer some admissible evidence to satisfy the court that the exceptional did not apply well the court sat it self when it contacted her and asked the probation officer at the sentencing hearing do we ever have him living at that residence and the probation officer says no i have looked through every text i've received from him and th you get into this back and forth interview he towels he he tells a very fishy story he says hey i was in between two different residences at the time of this offense i was in flux one was on phillips three the other one was on behind the post office when the probation officer goes to investigate these statements he determines that the only residence behind the post office is a the elm crestor elmhurst apartment on phillips and he then further investigates that the mckinley address is three tenths of a mile away from the post office so it's the defendant's own statements that are inconsistent and i think that the court could certainly rely on the defendant's own statements to the probation officer in the p s r interview and at that point the defendant or mr chapman may no objections saying hey i didn't mean first of all the defense attorney in chapman did not ever even seek to cross examine the probation officer they just went ahead into say that the district court can rely on evidence while it may not be admissible on an evidentiary basis can certainly be relied upon if it has  reliability and it's the government's position that when a us probation officer conducts an investigation based in investigating the defendant's own statements that that is sufficient reliability and i'd like to also mention the transcript at sentencing because it was sort of wishy washy about whether mr chapman was still really arguing that he was living or not where he was living because when the judge asked counsel did you feel this is on page two did you find factual errors in the report counsel stated just a slight one your honor on the issue of whether or not on the issue in connection with another felony we've suggested to the court the broad definition of dwelling under state law that the spot where the offense conduct occurred was his temporary residen and it's alluded to in the p s r so i'm not sure it's really an issue but we're going to allege where it occurred was where he was staying for at least a night or two and at that point the district court says mr ritchie the probation supervisory probation officer were you aware that that was a potential residence for mr chapman and the probation officer stated no i've never had any home contact there i looked through all of my notes as well as text messages from mr chapman on these facts the government was not rip quired to parade witnesses in front of the district court based on the supervisory this is a very different situation if supervising probation officer correct and the probation officer replies correct so he was the individual who was working with mr chapman while on supervised release and  chapman had not been on supervised correct if mr chapman were not on supervised release and we had this scenario i think the government would have a much tougher argument but because he was already under supervision and had been reporting where he was living and this address had never popped up and had never been argued by him as a resident then i think in this under the circumstances of this follow up on a question about what the actual objections were an objection to there actually was an objection to the factual paragraph defense counsel references paragraph seven which discusses the offense conduct and object starting that this was his private property so there is an objection to the factual summary and there's also an objection and that is objection number four that objects the actual guideline paragraph where the p s r states that it is imposing the four level unhandsome it as to this issue of defense counsel statement at sentencing all that indicates is the defense counsel is unsure of what the government's position is the defense counsel the defense attorney doesn't tell the government how to per prove its own case the defense counsel again repeated its position that this did not this occurred on private property and it fell within the exception so it's not any kind of waiver any kind of issue on enough now you're going to say the extreme would be bring a plot of the property to get the property records tax returns something does have to be proved with mathematical certainty or obviously the officer rich responded to the district court's question right you know what was the question is have are to the extent that our cases may have there are too strict a line there or should we to the extent that we can do it without running afoul of our president should we adopt a more we would say no don't relax the standards that you've said and pose in the past but maybe there's some case law from the other circuit seem to me i've read one several weeks ago and i was going to put it in the file and suppose i've lost it but anyway now our boys beach for the morning but again to put you on the spot and i know you don't want for say that will require x y and z but for hypothetical think that would be fair for the government to do it the government put on notice that it needed to call witnesses and defense counsel was aware that that's this was going to be an issue at sentencing but your argument is why should we give the benefit of doubt in terms of l haven't put it exactly in our position also that this back and forth exchange which is incredibly limited really doesn't mean a whole lot the fact that he did not indicate to his probation officer that he lives there while causing problems for a supervised release doesn't prove that he did not let their gratuitous comment what would you say that where we come out on this it's highly unlikely that we'll see another case in this particular u s attorney's office that will