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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
Filed December 8, 1998
Before PORFILIO, HENRY, and
BRISCOE, Circuit Judges.
The order and judgment filed in this appeal on November 24, 1998, is
withdrawn. Please see the attached order filed in its place.
Entered for the Court
Patrick Fisher, Clerk of Court
By:
Opal A. Carter
Deputy Clerk
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
Filed December 8, 1998
Before PORFILIO, HENRY, and
BRISCOE, Circuit Judges.
Defendant Warren Elvin Ensminger appeals from(*) 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).
This matter is remanded for the limited purpose of determining 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
Patrick Fisher, Clerk of Court
By:
Opal A. Carter Deputy
Clerk
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*. 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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