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Defendant Warren Elvin Ensminger appeals from⁽¹⁾ a district court order denying his release pending appeal of his conviction for violation of 18 U.S.C. § 1001. He contends that he is eligible for bail pursuant to 18 U.S.C. § 3143(b) (West Cum. Supp. 1998). We review the district court's order de novo as to mixed questions of law and fact, giving due deference to the court's purely factual findings. See United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). We conclude that defendant has raised a substantial question regarding whether his sentence for providing false information to the Marshall's Service should have been enhanced by the value of the properties associated with the fraud counts that were dismissed. See United States v. Santiago, 977 F.2d 517, 524 (10th Cir. 1992); United States v. Watkins, 994 F.2d 1192, 1196 (6th Cir. 1993). We further conclude that if the question was resolved in his favor, it would result in a reduced sentence to a term of imprisonment less than the time he has already served. See § 3143(b)(1)(B)(iv).

The judgment of the United States District Court for the Western District of Oklahoma is REVERSED and REMANDED for a finding whether defendant is a flight risk or a danger to the community. See § 3143(b)(1)(A); Stricklin, 932 F.2d at 1355 (court must make findings regarding the sufficiency of defendant's showing concerning appearance and safety). If the district court finds that defendant is not a flight risk or a danger to the community, it shall grant defendant's motion for bail pending appeal and terminate defendant's detention. See § 3143(b).

ENTERED FOR THE COURT

PER CURIAM

^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^1. Mr. Ensminger couched his appeal in the form of a new motion for release pending appeal. However, under Fed. R. App. P. 9, release in a criminal case is accomplished only through initial motion in the district court or review of that court's order at the appellate level. We therefore conduct an appellate review of the court's order below pursuant to 18 U.S.C. § 3145(c) (West. Cum. Supp. 1998).

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