                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3589
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Patrick Harley McNaught,                *
                                        *    [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: September 12, 2000

                                  Filed: October 19, 2000
                                   ___________

Before BOWMAN and BEAM, Circuit Judges and BOGUE,1 District Judge.
                           ___________

PER CURIAM.

      Patrick McNaught was convicted in United States District Court on four counts
of mail fraud under 18 U.S.C. § 1341. McNaught appeals his sentence. We affirm.

       Only one issue on appeal merits comment from this court. McNaught objected
to the conclusion in the Presentence Report (PSR) that his conduct involved more than


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
minimal planning. Without making a specific finding concerning the contested issue,
the district court granted a two-level upward adjustment in McNaught's offense level
for "more than minimal planning."

        A district court's findings of fact are reviewed for clear error. See United States
v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998). However, this Circuit has long stressed
that a "presentence report is not evidence and is not a legally sufficient basis for making
findings on contested issues of material fact." United States v. Beatty, 9 F.3d 686, 690
(8th Cir. 1993) (citations omitted). Nonetheless, the erroneous use of a contested fact
in a PSR as evidence at sentencing is subject to harmless error analysis. See id.
Although it may have been clear error for the district court to enact a two-level increase
for "more than minimal planning" without making a specific finding concerning that
fact, we find any error was harmless in this instance.

       A district court may accept as true all factual allegations in a PSR that are not
specifically objected to by the parties. See United States v. Montanye, 996 F.2d 190,
192-93 (8th Cir. 1993)(en banc). McNaught's only objection to the "more than minimal
planning" adjustment in the PSR was premised on the argument that his conduct in the
mail fraud was part of the routine business practices of his employer. McNaught did
not object to the numerous specific factual allegations in the PSR that showed his
conduct involved more than minimal planning. Accordingly, we find no clear error in
the district court's upward adjustment based on those uncontested facts.

       We have also carefully reviewed the balance of the record and find the district
court committed no clear error in either the calculation of loss or the obstruction of
justice adjustments. We affirm the sentence. See 8th Cir. R. 47B.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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