                            _____________

                             No. 95-2729
                            _____________

United States of America,        *
                                 *
          Plaintiff-Appellee,    *   Appeal from the United States
                                 *   District Court for the
     v.                          *   District of Minnesota.
                                 *
Steven Miles Oehlenschlager,     *
true name Steven Miles           *
Oehlenschlager, Jr.,             *
                                 *
          Defendant-Appellant.   *


                            _____________

                    Submitted:   November 17, 1995

                         Filed: February 13, 1996
                           _____________

Before HANSEN, LAY, and MURPHY, Circuit Judges.
                          _____________


HANSEN, Circuit Judge.

     Steven Miles Oehlenschlager, Jr., appeals the sentence imposed
upon him by the district court1 after he pleaded guilty to
illegally importing wildlife in foreign commerce and aiding and
abetting the illegal importation of wildlife.        See 16 U.S.C.
§§ 3372(a)(2)(A), 3373(d)(1)(A).     Specifically, Oehlenschlager
challenges a five-level upward adjustment to his base offense level
imposed on the basis of the market value of the wildlife, arguing
that the district court unreasonably estimated the market value
without holding an evidentiary hearing. We affirm.



     1
      The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota.
     Oehlenschlager was indicted for illegally taking, importing,
and selling wildlife consisting of migratory waterfowl eggs and
birds; he pleaded guilty to two counts of the indictment. In the
plea agreement, Oehlenschlager admitted to the following: (1) In
July 1992, he knowingly traveled to Canada and unlawfully took from
the wild approximately 36 white-winged scoter eggs and a lesser
number of scaup eggs and knowingly imported them into the United
States; (2)   In June 1993, he knowingly traveled to Canada and
unlawfully took from the wild approximately 13 redbreasted
merganser eggs and 50 common merganser eggs and knowingly imported
them into the United States.


     For these offenses, the Sentencing Guidelines provide a base
offense level of six, which must be adjusted upward for specific
offense characteristics. See United States Sentencing Commission,
Guidelines Manual, § 2Q2.1 (Nov. 1994). Oehlenschlager agreed that
a two-level upward adjustment was appropriate because the offenses
were "committed for pecuniary gain or otherwise involved a
commercial purpose," a specific offense characteristic. U.S.S.G.
§ 2Q2.1(b)(1)(A).    Section 2Q2.1 also provides for an upward
adjustment based upon the market value of the wildlife at issue
when that value exceeds $2,000. U.S.S.G. § 2Q2.1(b)(3)(A).


     The Presentence Investigation Report (PSIR) valued the
wildlife at approximately $54,100. Oehlenschlager objected because
this valuation equated the value of the eggs with the value of the
live birds which would be hatched from the eggs, a valuation method
which he contended was unreasonable. Oehlenschlager argued that
the eggs have little or no value themselves and have a high
mortality rate in the wild so every egg would not necessarily hatch
into a live bird.     The district court, after considering the
parties' briefs and hearing extensive argument on the subject,
overruled this objection, adopted the PSIR's estimated market value
of $54,100, and added a five-level increase to Oehlenschlager's


                                2
offense level according to the table provided in the Guidelines.
See U.S.S.G. § 2F1.1(b).

     Oehlenschlager appeals, arguing that the district court erred
in adopting the valuation of the wildlife set forth in the PSIR
without holding an evidentiary hearing upon learning that he
contested the value of the eggs.     "Correct application of the
Sentencing Guidelines is a question of law subject to de novo
review by this Court." United States v. LaMere, 980 F.2d 506, 510
(8th Cir. 1992).    The district court's factual determinations,
however, are subject to review for clear error. Id.


     Sentencing Guideline § 2Q2.1(b)(3)(A) provides in relevant
part:


     If the market value of the . . . wildlife . . . exceeded
     $2,000, increase the offense level by the corresponding
     number of levels from the table in § 2F1.1 (Fraud and
     Deceit)[.]


The table in § 2F1.1 dictates a five-level upward adjustment when
the value of the wildlife is more than $40,000 but not more than
$70,000. U.S.S.G. § 2F1.1(b)(F).


     To determine the "market value" of the wildlife under
§ 2Q2.1(b)(3)(A), the Guideline commentary provides that "[w]hen
information is reasonably available, `market value' under
subsection (b)(3)(A) shall be based on the fair-market retail
price," and where this "is difficult to ascertain, the court may
make a reasonable estimate using any reliable information."
U.S.S.G. § 2Q2.1, comment. (n.4). The commentary to the fraud and
deceit table (which is used to calculate the level of upward
adjustment based upon the market value of the wildlife), instructs
that "loss" for purposes of the table "need not be determined with
precision;" the court need only make a reasonable estimate given
the available information, including the offender's gain from

                                3
committing the crime or the amount of loss intended by the crime.
U.S.S.G. § 2F1.1(b)(1), comment. (nn.7, 8).2

     The fair-market retail value of the waterfowl eggs, a question
of fact, "is difficult to ascertain" in this case.         U.S.S.G.
§ 2Q2.1, comment. (n.4).     A market value for the eggs is not
readily available because, although Oehlenschlager sometimes traded
eggs for eggs, there is no evidence that he sold the eggs and there
is no known price list for the eggs. Because no market value is
reasonably ascertainable for the eggs, the Sentencing Guidelines
required the district court to make a reasonable estimate of market
value based upon reliable facts.


     Oehlenschlager contends that the underlying facts on which the
district court based its estimate of market value were not reliable
but were disputed, and therefore, the district court erred by not
holding an evidentiary hearing. When a defendant objects to the
factual allegations in a PSIR, the district court must either state
that it will not take into account the disputed facts or must hold
an evidentiary hearing and make findings on the disputed issue.
United States v. Streeter, 907 F.2d 781, 792 (8th Cir. 1990). We
have repeatedly held that a PSIR "is not evidence," and when
material issues of fact are disputed, the PSIR is not a valid basis
on which the district court can make factual determinations. Id.
at 791-92, quoted in United States v. Hammer, 3 F.3d 266, 272 (8th
Cir. 1993). On the other hand, when a defendant has admitted the
facts alleged in the PSIR, the district court is entitled to rely
on them. Hammer, 3 F.3d at 272.




     2
      "[I]t is [proper] for a district court, when instructed by
the Guidelines to refer to a particular subsection in making its
sentencing determination, to look to the underlying commentary
for guidance in interpreting a word or phrase that appears in the
specific subsection to which the court was referred." LaMere,
980 F.2d at 512.

                                4
     Contrary to Oehlenschlager's contention, the market value
calculation of $54,100, estimated in the PSIR and adopted by the
district court, was not derived from unreliable or disputed facts
but was estimated from Oehlenschlager's own undisputed price list
for live birds. Oehlenschlager did not contend that his price list
for live birds of the same species, containing the underlying facts
on which the district court relied, was inaccurate. Rather, he
contended that the method of estimating the market value for the
eggs -- equating it with the market value for the live birds -- was
unreasonable.   He argued for a theory which would discount the
market value to some degree to account for the risk of mortality of
the eggs. This is not a factual dispute but a legal argument on
the most reasonable theory by which to estimate market value when
market value is not readily ascertainable.


     The district court read briefs, heard argument on, and
ultimately rejected Oehlenschlager's assertions regarding the
mortality rate of eggs in the wild,3 concluding that the argument,
proffered to diminish the value of the eggs, was "disingenuous in
the extreme."   Oehlenschlager, 895 F. Supp. at 246.     The court
noted, "The argument is unpleasantly like that of the child who
kills her parents and seeks mercy because she is an orphan." Id.
The district court relied instead on the price list for live birds
written indisputably by Oehlenschlager's own hand and found this to
be a reliable basis on which to estimate the value of the eggs.


     We agree with the district court's assessment that it is fair
and reasonable to base the value of the eggs, for which there is no
reasonably available market price, on the value that Oehlenschlager
himself placed on the live birds. As the district court noted,
this "is the sum by which the defendant stood to profit in the

     3
      In his sentencing position paper, Oehlenschlager asserted
that white winged scoters had a 71% nest hatch rate in the wild
and that goldeneyes suffered even greater mortality losses in the
wild.

                                5
event his criminal enterprise succeeded."        United States v.
Oehlenschlager, 895 F. Supp. 245, 247 (D. Minn. 1995). His price
list reveals the market value that he intended eventually to
realize from the eggs. Oehlenschlager's entire criminal enterprise
was dependent on illegally importing the waterfowl eggs and either
hatching them under controlled conditions in his incubator, raising
the birds in his brooder house, and then selling the birds at the
prices he listed; or trading the eggs for other eggs to hatch and
sell. Without first illegally importing the eggs, Oehlenschlager
could not have profited from the sale of the birds as he intended.
Furthermore, the district court stated that even discounting the
value by 20% to compensate for a risk of unfertilized or "dump
nest" eggs (which are eggs from a nest that has been deserted), the
value remains in excess of $40,000 and thus warrants the same five-
level   increase,    according   to    the   table    in   U.S.S.G.
§ 2F1.1(b)(1)(F). Therefore, we conclude that it was reasonable to
estimate the market value of the eggs as equivalent to the
uncontested market value of the live birds, which is the gross
amount that Oehlenschlager intended to realize from his illegal
activity.


     The district court did not err by failing to hold an
evidentiary hearing since the court was able to make a reasonable
estimate of the market value of the eggs based on the undisputed
fact of the market value for the birds.     See United States v.
Clark, 986 F.2d 65, 70 (4th Cir. 1993) (holding magistrate judge
did not err by relying on defendant's own conversation to determine
the market value of a tiger skin rug).             We agree with
Oehlenschlager that the defendant does not have the burden of proof
with regard to enhancements. See Hammer, 3 F.3d at 272 (stating
that the government has the burden of proof for the base offense
level and enhancing factors). Nevertheless, in cases where the
district court is able to make a reasonable estimate of value based
upon facts that are not in dispute, we will not permit the
defendant to sandbag the district court by contesting valuation

                                6
without submitting a request for an evidentiary hearing,         as
required by local rule. See Minnesota Local Rule 83.10(f).

    Accordingly, we affirm the judgment of the district court.


    A true copy.


         Attest:


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




                               7
