* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. WILMA FAY COFFMAN, a/k/a Fay Gist, a/k/a Estell Gist,

Defendant-Appellant. No. 96-5245 (D.C. No. 96-CR-38-1-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant appeals from the sentence imposed after s he pled guilty to one count of telemarketing fraud. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part, and remand fo r resentencing. Defendant filed objections to the presentence report. Insofar as they are relevant to this appeal, defendant challenged the p robation officer’s assertions: (1) in paragraph 19 that eleven points should be ad ded to the base offense level because the actual or intended loss from the telema rketing fraud exceeded $800,000 but was less than $1,500,001; (2) in parag raph 22 that two points should be added because defendant deliberately selected vi ctims who were unusually vulnerable to telemarketing schemes; and (3) in par agraph 21 that two points should be added because defendant represented a fic titious charity. After a hearing, the district court summarily overr uled all of defendant’s objections to the presentence report. The court ad opted paragraphs five through thirteen of the presentence report as to the facts of the case, and determined that the applicable guideline range was fifty-one to sixty months’ imprisonment. See R. Vol. IV at 87-88. The court noted that defendan t had already been convicted and sentenced in Mississippi to twenty years’ impri sonment for telemarketing fraud at the time of her indictment in the Northern District of Oklahoma, and that the guidelines required defendant’s Oklahoma senten ce to run concurrently with her Mississippi sentence. Because defendant was al so entitled to credit for the-3-

eleven months she had already served in Mississippi , the court sentenced defendant to forty-nine months’ imprisonment, to ru n concurrently with her Mississippi sentence. See id. at 88-89. On appeal, defendant argues that the sentencing cou rt: (1) violated her rights by communicating ex parte before the sentenc ing hearing with one of the government’s witnesses; (2) failed to make written findings on all controverted factual matters in the presentence report, as requi red by Fed. R. Crim. P. 32(c)(1); and (3) erred by finding that defendant targeted vu lnerable victims, that she solicited on behalf of a fictitious charity, and th at the actual or intended amount of the loss exceeded $800,000. Defendant has not shown that the district court vio lated her rights by communicating ex parte with one of the government’s witnesses. While talking with the probation office on the morning of the sen tencing hearing, the district court had occasion to ask the Special Assistant Att orney General for the State of Mississippi, Jean Smith Vaughan, how much of defend ant’s twenty-year Mississippi sentence defendant would probably serve . Ms. Vaughan’s opinion was that defendant was likely to serve a minimum of about five years in Mississippi. The court took this information into account in determining defendant’s Oklahoma sentence because the guideline s required the court to make-4-

it concurrent to her Mississippi sentence, and the court wanted to make sure that it did not extend beyond the Mississippi sentence. See R. Vol. IV at 72. Defendant asserts without much elaboration (and no case law) that this ex parte communication was a constitutional error thathad a substantial influence on the sentence imposed against her. See United States v. Garcia , 78 F.3d 1457, 1465 (10th Cir.), cert. denied , 116 S. Ct. 1888 (1996). We are not persuaded. Defendant did not object or seek to cross-examine M s. Vaughan when the court revealed at the sentencing hearing that it had obta ined information from her ex parte, and defendant has not shown that the information obtained was incorrect or that it prejudiced her. We therefore find no erroron this point. We agree, however, that the district court improper ly failed to make required written findings in this case. Federal R. Crim. P. 32(c)(1) requires the sentencing court to make findings on each objection to the presentence report, or state that no findings are required because the con troverted material either will not be taken into account or will not affect senten cing. See, e.g. , United States v. Henning , 77 F.3d 346, 349 (10th Cir. 1996). The rule also requires the court to reduce its findings to writing and attach them to t he presentence report. See id. The sentencing court does not meet its burden by ad opting the presentence report.
See id. Nothing in our cases allows us to accept the district court’s failure to actually make written findings and attach them to t he presentence report. See,-5-

e.g. , United States v. Roederer , 11 F.3d 973, 977, 983 (10th Cir. 1993) (affirming sentence but remanding for findings required under former version of Rule 32(c)(1)); United States v. Price , 945 F.2d 331, 333 (10th Cir. 1991) (remanding for resentencing); United States v. Alvarado , 909 F.2d 1443, 1444-45, 1447 (10th Cir. 1990) (remanding for resentencing and findings). Moreover, when a sentence enhancement is sought on the basis that the defendant targeted an unusually vulnerable victim, “the sentencing court [must] make particularized findings of vulnerability.” United States v. Lee , 973 F.2d 832, 834 (10th Cir. 1992). The case must be remanded. Accordingly, we do not reach defendant’s other issues. The decision of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED IN PART, and the case is REMAN DED for resentencing and appropriate findings pursuant to F ed. R. Crim. P. 32(c)(1).

Entered for the Court

Wade Brorby Circuit Judge