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The order and judgment filed in this appeal on November 24, 1998, is withdrawn.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 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).

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