166 F3d 348 United States v. Ensminger

166 F.3d 348

98 CJ C.A.R. 6195

UNITED STATES of America, Plaintiff-Appellee,
Warren Elvin ENSMINGER, Defendant-Appellant.

No. 98-6179.

United States Court of Appeals, Tenth Circuit.

Dec. 8, 1998.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.


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The order and judgment filed in this appeal on November 24, 1998, is withdrawn. Please see the attached order filed in its place.



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).


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)