UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WARREN ELVIN ENSMINGER,

Defendant-Appellant.

No. 98-6179

(D.C. No. 97-CR-193)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Warren Elvin Ensminger appeals from1 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