*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

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

### DEC 17 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LAMONT KEITH JENNINGS, Defendant-Appellant. No. 99-3124 (D. Kan.) (D.Ct. No. 97-CR-40006)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.
Appellant Lamont Keith Jennings appeals the distric t court’s decision1 Mr. Jennings pled guilty to the first of five cocaine sales in which he distributed

3.99 cocaine grams, in exchange for dismissal of the remaining charges, which consisted of much higher volumes of cocaine sales – i.e. , 9.98, 11.47, 9.27, and 18.57 cocaine grams sold.
-2- sentencing him to 151 months in prison. We exercis e our jurisdiction under 28 U.S.C. § 1291 and affirm.
The government indicted Mr. Jennings on five counts of knowingly and intentionally distributing crack cocaine over a twe lve-day period from January 9 to January 20, 1995. Because Mr. Jennings absconde d from pretrial supervision, authorities issued a warrant for his arrest on Octo ber 10, 1997. Days later, Mr. Jennings failed to appear at a plea hearing schedul ed for October 17, 1997. Mr. Jennings remained a fugitive for over a year before his arrest in Blue Springs, Missouri on November 25, 1998.
As part of a plea agreement, Mr. Jennings pled guil ty to one count of distributing crack cocaine in exchange for dismissa l of the remaining counts. 1 A federal probation officer then prepared a presenten ce investigation report recommending an upward adjustment of two levels forobstruction of justice under United States Sentencing Guideline § 3C1.1 be cause of Mr. Jennings’ “willful failure to appear for a judicial proceedin g.” In addition, in calculating-3-

Mr. Jennings’ criminal history category, the probat ion officer included two prior 1992 arrests. Mr. Jennings filed an objection to the presentence report, contesting the probation officer’s inclusion of these two arre sts as separate arrests and claiming they constituted related offenses. Later, in his “Sentencing Memorandum,” Mr. Jennings also filed an objection t o the “obstruction of justice” enhancement. While he did not contest the underlying facts warranting the obstruction of justice enhancement, Mr. Jenning s asked the judge to act equitably and not impose the enhancement on grounds the law enforcement officials did not immediately arrest him after the first cocaine sale, but allowed him to continue to make four more sales prior to hi s arrest, thereby elevating his conduct to a ten-year mandatory minimum sentence.
At the sentencing hearing, Mr. Jennings renewed his argument against the obstruction of justice enhancement, relying on his equity argument. The district court judge ascertained Mr. Jennings’ argument was purely equitable and not legal, and, after examining the nature of the enhan cement, upheld it as proper. In so doing, the judge stated “when you were let out, you disappeared for over a year until you were ... found and brought back and that brings quite a few problems ... to the court.” The judge also found the criminal h istory calculation using the prior 1992 sentences correct because those sentence s constituted unrelated2While Mr. Jennings contests the presentence report’s finding he willfully

obstructed justice for failing to appear and fleeing to another state, we note he does not contend his actions were involuntary or for any reason other than to avoid prosecution.

3 In his brief, Mr. Jennings relies on cases that do not contemplate the situation where, as here, the defendant failed to appear for criminal proceedings. Compare United States v. Hernandez, 967 F.2d 456, 459 (10th Cir. 1992) (finding defendant asked another to lie as to his culpability, thereby impeding administration of justice), and United States v. Gardiner , 931 F.2d 33, 35 (10th Cir. 1991) (finding defendant withheld his identity, thereby interfering with the administration of justice), with United States v. St. Julian II , 922 F.2d 563, 571 (10th Cir. 1990) (holding failure to appear at sentencing hearing interferes with the disposition of criminal charges and impedes or obstructs administration of justice). -4- offenses separated by an intervening arrest. The d istrict court then sentenced Mr. Jennings to the minimum guideline provision of 151 months incarceration.
On appeal, Mr. Jennings contends the district courterred in applying the obstruction of justice enhancement. However, rathe r than asserting the same equity argument, Mr. Jennings now argues the enhanc ement is improper because no evidence supported the enhancement 2 and the district court failed to make a specific finding of “willfulness” required under Un ited States Sentencing Guideline § 3C1.1. 3

We review a district court’s factual determination on the obstruction of justice enhancement for clear error and its legal i nterpretation of the sentencing guidelines de novo

. See United States v. Hankins , 127 F.3d 932, 934 (10th Cir.-5-

1997). In so doing, “[w]e give due deference to th e district court’s application of the Guidelines to the facts.” Id. (quotation marks and citation omitted). While the burden of proof is on the government, the burde n of alleging factual inaccuracies of the presentence report is on Mr. Je nnings. United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994) (relying on Fed .R.Crim.P. 32(c)(3)(D)), cert. denied, 513 U.S. 1158 (1995). “Failure to object to a fa ct in the presentence report, or failure to object at the hearing, acts as an admission of fact.” Id. Such “factual disputes do not rise to the level o f plain error.” Id. (quotation marks and citation omitted).
In this case, Mr. Jennings did not object to the st atement in the presentence report that he willfully failed to appear for his p lea hearing. Rather, he contested the obstruction of justice enhancement solely on eq uitable grounds. Mr. Jennings now contests the presentence report’s finding he “w illfully” failed to appear for his hearing. Because this involves a factual issue , we will review it only if Mr. Jennings made the proper objection. He did not. T hus, we determine this issue is not properly preserved for appeal. See Deninno , 29 F.3d at 580. Accordingly, we decline to consider it.-6-

For these reasons, we AFFIRM Mr. Jennings’ conviction and sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge