                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 16 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1367
                                                   (D.C. No. 99-CR-352-M)
    JAMES O.H. DUGAN,                                     (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BALDOCK, PORFILIO,             and ANDERSON , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         James O.H. Dugan appeals the sentence imposed following his plea of

guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. He argues that


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the evidence was insufficient to support the sentence enhancement imposed for

more than minimal planning and that the district court erred when it failed to

make factual findings to justify the enhancement. We affirm.

      Mr. Dugan responded to an ad placed by the victim in a national newspaper

for the sale of a ranch in Colorado. Mr. Dugan offered to purchase the property.

As part of that transaction, Mr. Dugan represented that he would fund a marketing

company for the benefit of the victim for at least $1,000,000 by permitting the

victim to invest $50,000 in an Indonesian “energy portfolio.”

      The victim traveled to New York to meet with Mr. Dugan to discuss the

purchase of the ranch. Mr. Dugan represented that he had the ability to invest in

the energy portfolio and that the investment would allow the victim to make a

return of over $1,000,000 on his $50,000 investment within a matter of weeks.

Following Mr. Dugan’s instructions, the victim wired the money to a bank in New

York, to an individual in Indonesia, and to a credit union in California.

      When the promised return on the investment was not forthcoming and the

victim questioned him, Mr. Dugan made various excuses and provided the victim

with copies of false documents which supported the investment.

      The district court enhanced Mr. Dugan’s sentence pursuant to USSG §

2F1.1(b)(2)(A) for more than minimal planning. Mr. Dugan contends that this




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adjustment to his sentence was erroneous because it is not supported by the

evidence.

       In reviewing an assertion that the district court’s application of the

guidelines to the facts is erroneous, this court must accept the factual findings of

the district court unless they are clearly erroneous, and must give due deference to

the district court’s application of the guidelines to the facts.     United States v.

Johnson , 911 F.2d 403, 406 (10th Cir. 1990). We will reverse only if we are left

with a definite and firm conviction that a mistake has been made.         Id.

       In the instant matter, there is no controversy concerning the facts. The

facts were set forth in the presentence report and Mr. Dugan never objected to

these facts in the district court. This evidence is sufficient to establish that Mr.

Dugan’s offense involved more planning than a simple form of the offense.           See

USSG § 1B1.1, comment. (n.1(f)) (more than minimal planning occurs if the

offense involved “more planning than is typical for commission of the offense in

a simple form.”)

       Mr. Dugan also argues that the district court erred by failing to make

factual findings to support the enhancement. While we agree that it is preferable

for the district court to set forth its specific factual findings,   Johnson , 911 F.2d at

406, we conclude that the failure to do so here does not warrant reversal or a

remand. The facts are clearly set forth in the presentence report and the district


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court expressly adopted the conclusion of the presentence report.    See id ; see also

United States v. Copus , 110 F.3d 1529, 1537 (10th Cir. 1997) (where the district

court expressly adopted the position of the probation office as outlined in the

presentence report, no error occurred in imposition of the adjustment for more

than minimal planning). Moreover, the defendant did not object to the facts as set

forth in the report.

       Accordingly, the judgment of the United States District Court for the

District of Colorado is   AFFIRMED .



                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




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