* The Honorab le John Feikens, United States District Jud ge for the Eastern District

of Michigan, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0100P (6th C ir.) File Name: 04a01 00p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

L AWRENCE O RLANDO , S R ., Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-6107

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00160—Todd J. Campbell, District Judge.

Argued: January

29, 2004 Decided and Filed: April 8, 2004

Befor e: MERRI TT and SUT TON, Circ uit Judges ; FEIKENS, District Judge. *

_________________ COUNSEL

ARGUED: Jerry Scott, SCOTT & KE A, Murfreesboro, Tennessee, for Appellant. Jimmie Ly nnRa msaur, 2 United States v. Orlando No. 02-6107

ASSISTANT UNITED STATES ATTORNEY, Na shville, Tennessee, for

Appellee. ON BRI EF: Jerry Scott, SCOTT & KEA, Murfreesboro, Tenn essee, f or Appel lant. Jimmie Lynn Ra msa ur, ASSISTANT UNI TED STATE S ATTORNEY, Nashville, Tennessee, for Appellee

.

_________________ OPINION

_________________ FEIKENS, District Judge.

I. INTRODUC TION
Defendant-A

ppe llant, Lawrence

Orlando, Sr., was convicted by a jury for Consp iracy

to Use Mai l and Facilities inInterst ate Co mmerc e in Ai d of Ra cketee ring, in violation of 18 U.S.C . §371, and Conspiracy to Commit Money Launderi ng, in vio lation of 18 U.S.C. §1956(h). After sente ncing, defenda

nt appea led his se

ntence a nd conviction to this Court. Thi s Court re manded hi s case

for resentencing

to determine the amount of laundered funds for which defenda nt sh ou ld be held accountable. United States v. Orlando , 281 F .3d 586 (6th Cir. 2002). On remand, the district court resentenced

defenda nt to sixty

-three months im

pri sonment and two years supe

rvised release, the same as defenda nt’s original sentence.

Now defendant appeals the sentenc e imposed upon him on remand. First, defendant argues that the distri ct court

erred i n applying on reman

d at defe ndant’s r esenten cin g t he version
o f U.S.S.G. §2S1.1 which was in effect at the time of defendant’s original sentencing. Defendant contends that the districtcourt on remand should have applied the version of §2S1.1 in effe ct at the t

ime of his r

esentencing. Second, defendant argues that even if the

district c ourt was c orrect in applying the version of §2S1.1 in effect at the t im e of his original sentencing, the evidence and factual determinationsNo. 02-6107 United States v. Orlando 3

of the district

court do not support

a three-point enhancement pursuant to §2S1.1.

We fi nd that the district court on remand was correct i n applying the ve rsion of §2S1.1 in effect at the time of defendant’s origina

l sentenc ing, as o

pposed to the version

in effect at the time of defendant’s resentenc ing. We also find that the district court’s f

actual f indings were not c learly
errone ous. Accordingly , we AFFI RM defendant’s sentence.

II. FACTUAL BACKGROUND

A det ailedaccount of the facts underly ing defendant Orla ndo’s conviction is set forth in Orlando , 281 F.3d 586 (6th Cir. 2002). Therefore, a full statement of the facts of the
caseneed not be repeated. The following additional facts are releva nt on appe al.

A. Proce du ral Background and Senten cing Guideline s Subsequent

to de fe ndant Orlando’s conviction, on September

15, 2000, the district court sentenc ed defe

ndant to sixty-threemonths impr

iso nmen t and two years supervised release. This sentence was based on the district court’s applicationof §2S1.1 of the Sentencing Guidelines, pursuant to which the district court calculated de fen dant’s offense level
as 26. The di strict co

urt h e ld defendant accountable for laundered funds in the amount of

$449,655.62, and therefore enhanced defenda nt’s base offense level of 23 by three po ints inorder to arrive at the offense leve l of 26. D efendant objected to the amount of laundered funds for which he was held accoun table, a nd appea le d bo th his conviction and sentence.
Onappeal, this Court h eld that the district c ourt err ed in enhancing

Orlando’s base offense level by thr ee points pursuant to §2 S1.1 “with out m aking s pecifi c factu al fin dings concerning

the amoun

t of laund

ered fu nds fo r which [Orlando] was accountable.” Orlando , 281 F.3d at 601. For 4 United States v. Orlando No. 02-6107

example, the dis trict cou rt faile d to make a

specific determination

as to when Orlando entered the conspiracy and failed to indica

te the sc ope of cr

iminal acti vi ty O rlando agreed to undertake. Id . at 6 01. This Court explained that “[a] ltho ugh the evide

nce may just i fy holding Or

lando
accoun tablefor [approximately] $449,000 of laundered
mo ne y, the district

court ’s failure to explain its factual determination

requires us to remand the case for resentencing.” Id . at 601. Therefore, we remanded the case for res enten cing.

Between the date of defendant’s original sente ncing hearing, on September 15, 2000, and the date of defendant’s resentencing

hearing, on July 18, 2002, §2 S 1.1 of the SentencingGuidelines was amended, effectiveNovember 1, 2001. At the time

of defendant’s sentencing, §2S1.1 provided for a three -point en

hanceme nt of a de fendant ’ s base offense level if the value of the laundered funds exceeded $350,000. §2S1.1(b)(2)(D). The amended version of §2S1.1 required

an entirely different calculation to determine both a defendant’s base offe nse le vel and whether an enhancement wa s appropriate, and would

have re sulted in

a “drastic ally differe nt” sentenc e for Or

lando. (Govt.’s Mt. for Clarification, June 4, 2002.) Therefore, onJune 4, 2002, the Government filed a motion with this Court s eeking

clarifi cation a s t o which version of §2S1.1 should app ly on remand . The Gov ernment wanted to determine “whether the entire sentence ha[d] been vacated by [this Court] or whether the remand was for the limited purpose of determini n g the amount of laundered funds.” (Govt.’s Mt. for Clarification, June 4, 2002.) By Or der dated June 12, 2002, this Court denied t he Government’s motion. This Court explained that “the context of th e filed opinion makes it obvious that the remand for resentencing is limited to determin

ing the a

mount of la

undered funds pro

perly attributa ble to Orlando.” (Orde rof Sixth Circuit, June 12, 2002.)No. 02-6107 United States v. Orlando 5

B. The Distr

ict Cour t’s Findi ngs On Rem and

Onremand, the distri ct court a d dressed

two issues : (1) whether

the amended version of §2S1.1 of the Guidelines should apply on

re mand to defendant’s resentencing; and (2) the amount of laundered funds for which to hold Orlando accountable. (Res ent. Tr. p. 534.) First, the district court determ ined

that the r emand wa s “limited

to deter mining th e amount of launde red fund s proper

ly a ttributab le to Orlando,” and that “the limited rem and r equire[d] it to apply the guidelines t hat we re in effect at the time of the original sentencing...on

Septembe

r 19th , 2000.” (Resent. Tr. p. 549- 50.) Second, the district court made p ar ticul arize d find ings regarding Orlando’s involvement in the c onspiracy, a nd determined

that Orla

ndo was acc ountable

for at le ast $408,005.62 in laundered funds. (Resent. Tr. p. 580.)

The district c ourt made the follo win g factual determinations: (1) Orlando entered the money lau n dering conspiracy

in early 1996; (2) Orlan d o agre ed to jointl y undertake particip ation in t he operation of Dawn’s and the
co nspir acy

to lau nder m oney from early 1996 throu gh November

of 1999; (3) Orlando knew from thebeginning of his relation ship with D aniels tha t Dawn’s was a fr ont for prostitution; (4) Orla

ndo made i

mproveme

nts to the b

usiness in 1996 and i

n 1997, wit

hout rec eiving a

ny moneta

r y pay ment; (5) Orla

ndo picke d up enve lopes o f mon ey from Dawn’s at least t

w e nty-five times during

1997 and 1998; ( 6) from August of 1999 to November of 1999 Or land o handled the pay ment of expenses fo

r Dawn’ s d

u ring the period that Dani els was incarcerated; (7) Orlando benefitted from the business during his relationship with Daniels – “he lived with her, drove a truck supplied by her, she paid o ff his loans, [and] she paid for

certain exotic trips”; and (8) during the time Orla

ndo was in

volved in t

he consp iracy, the business 6 United States v. Orlando No. 02-6107

1 Th is fig ure is based on the dist rict court’ s revi ew of bu sines s tax
re ceipts from the relevant period of time. The court noted that i t found the testimony of Joan Gou ld credible w hen she test ifie d that the f igures

were under report ed a nd that theyrequir ed doubling to be accurat e. Based on thi s and “many weeks of

test imony, ” the co urt felt it could “reaso nab ly concl ude t hat thes e dol lar numb ers [we re] qu ite

con serva tive.” (R esent. T r. 583 .) generated funds in the minimum amou nt of $408,005.62. 1 (Resent. Tr. p. 579-582.)

Ac co rd in gl y, the district court applied the version of §2S1. 1 whichhad

been applicable at the time of defendant’s original sente ncing, and resentenced defendant to sixty -three months imprisonmentand two yea rs supervised release – a sentence identical to the one previously imposed. (Ame nded Judgment, Jul y 22 , 2002.) D efenda nt now app eals his resent encin g.
III. ANALYSIS

A. Standards of Review

A district court’s determination as to whether a r

emand is general or limited is reviewed de novo

. United S tates v. O’Dell, 320 F.3d 674, 679 (6th C ir. 2003) (citi ng United States v. Moore , 131 F. 3d 595, 598 (6th Cir. 1997)). A districtcourt’s findings of fact at sentencing are

reviewed for clear error, while a district court’s interpretation of the SentencingGuidelines are reviewed de novo

. Uni ted States

v. Canestraro , 282 F.3d 427, 431 ( 6th Cir

. 2002). A sentencingcourt’s “factual findings concerning the amount of lo ss for wh ich the defendant is to be held accountable as relevant conduct pursuant to Sentencing Guidel ine s ection 1B1.3(a)(1)”is revie

wed for clear error. United States v. Prince , 214 F.3d 740, 769 (6th Cir. 2000).No. 02-6107 United States v. Orlando 7

2 28 U.S.C. §2 106 states: “The Supreme Court or any othe r cour

t of app ellate juri sdict ion may affi rm, modify, vacate, set aside or reverse any judg men t, decree , or order of a court l awfu ll y brou ghtbefor e it for review, and may remand the case and direct t he entry of such app rop riate judg men t, decree, or or der, o r requ ire such further p roce eding s to be had

as ma y be ju st unde r the circ umsta nces.” B. On Remand t he District Court Was Correct i n Applying the Sentencing Guidelines in Effect at the Time of D efendant’s

Original Se ntencing

1. The Remand Was L imited to Dete rmining the Amount of Laundered Money for Which Defendant Was Accountable

Pursua nt to 28 U.S.C. §2106, appellate courts have the authority to gran t either g eneral

or limited

remands

. 2 Moore , 131 F.3d at 597. On a general remand, the district

court may resentence a defen

dant de novo

. Id . (cit ing Unite d States v. Hebeka , 89 F.3 d 279, 2 84 (6th Cir. 1996)). However, on a limitedremand a district cou rt’ s authori

ty is constra ined “to the issue or i ssu es remanded.” Moore , 121 F.3d at 598. To constitute a limited remand, the appe llate cou rt “must convey clearly [its] intent to limit the scope of t he district court’s review.” United Sta tes v. Cam pbell , 168 F.3d

263, 267 ( 6th Cir. 1 999). The limiting language def ining the scope of an appella te court’s mandate may

be foun d “anywhe

re in an opinion or order, including a designated parag

raph or section, or certain key

identifiable language.” Id . at 267.
Under the manda

te rule, “a dist

ric t court is bound to the scope of the remand i ssue d by the court of a ppeals.” Campbell, 168 F.3d at

265. This Courthas emphasized that “the trial cou

rt must imple

me nt both the lette

r and the spirit of the manda

te, takin g into ac count the ap pellate court’s opinion and the circumstances it embraces.” United States v. Moored , 38 F.3d 1419, 1421 (6th C ir. 1994) (citations omitted). Stated another

way, “the mandate rule instructs that the distr ict c ourt i s without a

uthor ity to exp a nd its inquiry 8 United States v. Orlando No. 02-6107

beyond the matters forming the basis of theappella te court’s remand.” Campbell, 168 F.3d at 265.

Inthe present case, thi s Court clearly convey ed in its Opinion of February

25, 2002 that

its remand for resentencing
was limi ted to determ inin g th e amount of laundered money for which defendant

Orl and o sh oul d be hel d ac cou nt abl e. In
our O pinion , this Court held that the district court had erred by failing to make “specific findings to justify holding Orlando a ccou ntable for $449,000 of laundered money .” Orlando , 281 F.3d at 601. We did not take i ss ue with the sentence in its entirety, nor q uest ion the application of §2S1.1, apart f

rom th e lack o f factu al fin dings suppo rting a three-point

enhancement under

§2S1.1. Rather, we explained that though “the evidence may justify holding Orlando
accoun tablefor $449,000 of laundere d mo ney, the district court’s failure

to explain

its factual determination requires us to remand the case for resentenc ing.” Id . at 601.

Inaddition, in this Court’s Order of June 12, 2002, we stated clearly tha

t our remand

was a limited one. This Court issued the Orde r in response to a Motion

for Clarification by the Government, in wh

ich the Governmen

t pointed o

ut th a t §2S1.1 had been amended since the time of defendant’s original sentencingand that the results under the new version would vary dra

matically. Rather t

han engaging in a discussion as to whether the amended version of § 2S1.1 should apply on remand, this Court summarily denied the Government’s Motion. By way of ex plana tion, we stated unequivo cally

that “the context of

the filed opinion ma

kes it obvious that the r

emand for resen

tencing is limited to determining the amount of l a undered funds pro

perly attributa ble to Orlando.” (Order of Sixth Circu i t, June 12, 2002.)
Under the man date rule, because this Court convey ed clearly that the remand for resenten c ing was limited to determining the amoun t of launde red funds for which Orlando
was accountable, the district court’s authority on re

mand wasNo. 02-6107 United States v. Orlando 9

limitedto resolving that issue alone

. Because the remand
was a limited one, the district court lack ed the au

thority to review defendant’s sentence de novo under t he amended versionof §2S1.1. Therefore, the distri ct court was cor rect in l imi ting its analysis to determining the a mount of laundered funds attributa

ble to Orl ando and

in apply ing the version of §2S1.1 which had been in effect at the time of defendant’s origin al sen tenci ng.
2. Section §1B1.11 of the Sentencing Guidelines
Defend ant arg ues that a court on r

emand sho

uld apply the versionof the Sentencing Gui deline s in effect at the time of
a defendant’s resentencing. F or this proposition , d efendant relies upon§1B1.11 of the Guidelines, a section which does notsupport defendant’s arg ument eit her on its face or by i ts
reason ing. Section 1B1.11 provides that as a genera l rul e a court must apply the version of the Guide lines in effect at the time a defendant is sentenced, unless this would viola

te the ex post fact o clause of the United States Constitution. Section 1B1.11 st ates: (a) The cour

t shall use

the Guide lines Man

ual in e ffect
onthe date that the defendant is sentenced. (b)( 1) If the court determines that use of the Guideline s Manual in effect on the date that the defendant is sentenced would violate the ex post f

acto cla use of the United States Constitution, the cour

t shall use

the Guide lines Manual ineffec t on th e d ate that the offense of conviction was committed.
The excep tion to the general rule arises only when ex pos t facto concerns are implicated at the time of sentenc ing, and in that cas e an earlier version of the Guidelines must be used. See United States v. Holmes , 975 F.2d 275, 278 (6th Cir. 1992) ( citin

g Unit ed States v. Nagi , 947 F.2d 211, 213 n.1 (6th Cir. 1991)). 10 United States v. Orlando No. 02-6107

Onits face, §1B1.11 say s nothing about the issue present ly befor e this Court. The relevant comparison at issue i n §1B1.11 is between the Guidelines in ef fect at the time of a defendant’s sentencing versus those in effect at the time of a d efendan t’s relevant offense, not between the version of the Guidelines in effect

at t he time of

resente ncing v ersus tho se ineffec t at the tim e of

a de fen dan t’s ori gin al s ent enc in g. In addition, the cases interpreting §1B1.11 cited by de fendant
are not persuasive. United States v. Cruz-Aceuedo , 106 F.3d 402 (6th Cir. 1996), is anunpublished opinion and therefore notbinding precedent, and United Sta te s v. Clemons , 999 F.2d 154 (6th Cir. 1993), upon which Cruz- Ac euedo relies, does n ot addre ss a resentencing issue. Furthermore , the ex post facto c oncern under lying the e xc eption to the general rule is not present

at the re sentenc ing stag e, in a case like the present one, w he re a def

endant se eks to hav e applie d to his case advantageous post-appe al changes to the Guidelines.

Anex post facto proble m o ccurs only where “ the Guide lines i n effect at the time of sentencing provide for a higher range than those in effect a t the time the crime was committed.” United States v. Green , 305 F.3d 422, 432 ( 6th Cir. 2002) (citation

omitted). Where the Guidelines in effect at the time of resentencing are less seve re than those applied to a defendant at

the time of his original sentencing (assuming his original sentenc ing did not viol ate the e x post facto clause), no ex post fa

cto probl em exists at

the rese nte ncing stage. In the absence of

an ex post fact o d anger, there is no justification to apply any

versionof the Guidelines other than the version a

pplied at th e time of a defendant’s original sente ncing. A contrary rule w oul d allow de fendant s to b enefit arbitrarily f

rom the windfall of recently amende d
more lenient Guidelines, burden district courts un ne ce ss ar il y, and undermine the goal of finality in the judicial process.

F inall y, the rec ent enac

tment of 18 U.S.C. §374 2(g), i n 2003, has clarified that the cor rect app roach for a district court to take on remand is to apply the Guidelines in effect at the time of a

defend ant’s origin al sen tenci ng. (ProsecutorialNo. 02-6107 United States v. Orlando 11

Remedies and Tools Against the Exploitation of Children Today Act of 2 003 (PR OTE CT Act ), P ub. L. No. 108-21, 117 Stat. 650 (2003 )). I

n releva nt part, § 3742(g) provide s that, where a case i s rema

nded fo r resentencing, as in the present case, “th e court s hall appl y th e guide lines [...] that were in effect on the date of the previous sentencing of the defendant prior to the appeal...” This statu te was ena

cted subs equent to the date o f defendant’s resentencing , and therefore does not apply to the present case. However, to the extent this statut

e clarifies what

was prior to its enactment an open question, we refer to it as additional support for the course taken by the district court in the present case.

C. The Factua

l Findings J

ustifying a Thr ee-P oint Enhancem ent

Under §2 S 1.1 Were

Not Clea rly Erroneous

D efendantargues: (1) the district court failed to make particularized

fi ndings as to the date defendant entere d the
co ns pi ra cy; (2) th e dist rict c ourt r endere d erron eous f indi ngs of fact regarding the

scop e of the conspiracy ; and (3) the evidence does not support the amount of money for which the district court held defendant accountable.

As stated a

bove, a d

istrict c ourt’ s fin dings of fact at sentencingare reviewed

for clear error. Canestraro , 282 F.3d at 431. Under the clear

error standar d, a revi ewing c ourt “wil l notreverse a

lower court’s finding

of fact simply because [it] ‘would have decided the case differ ent ly .’” Easley v. Cromartie , 532 U. S. 23 4, 242 (2001 ) (cit ing Anderso n v. Bessemer City , 470 U.S. 564, 57 3 (1985)) . Rather, to determine whether a district court has committed clear

error, a reviewing court must ask “whether on the entire e

vidence it is left with the definite and firm conviction that a mistake has been committed.” Easley , 532 U.S. 2 34 at 2 42 (2001 ) (citations omitted).
Defendant

does not concede that he entered the conspiracy before August of 1999. However, defendant admits he started 12 United States v. Orlando No. 02-6107

dating Daniels i

nt he beginning of 1996, (Sent. Tr. p. 437), and that he knew Dawn ’s was a massage parlor used asa front for pro stitution within a short period of time. (Sent. Tr. p. 470.) Orlando admits that he transported sealed envelopes fromDawn’s to Daniels approximately twe nty-five times during 1997 and 1998, (Sent. Tr. p . 448), an d that he made improveme

nts at Dawn’s between 1996 and 1997. (Sent. Tr. p. 4 55 .) In

addition, Orlando

admits he s igned a

business license for

Daniels i n an atte mpt to open

another spa. (Sen

t. Tr. p. 493). Orlando also admits his son provided security at Dawn’s for a period of time, and that his daughter-in-la w worked there a s a manager. (Sent. Tr. p. 507). The evide nce demonstrates that Orlando had knowl edge o f the busi ness, aided the business at times, and

personally bene fittedfrom the
success of the bus iness. B ased on th is e viden ce, the district court’s factual determinations regarding the da te Or lando entered the conspiracy

and the scope of Orlando’s involveme

nt are no t clearl

y e rroneou s.
Fi na ll y, pursuant to §1B1.3 of the Senten cing Guideline s, base offense

levels and specific offense chara cteristics are to be determined “ in t he case of jointly unde rtaken criminal activity ” on the ba sis of “a

ll reasonably

foreseeable acts and omissions of other s in furthe rance o f the joint

ly u ndertaken
ac ti vi ty, that occ

urred du ring the commission

of the of fense of conviction....” §1B1.3(a)(1)(B)

. Defendant argues that the evidence does not

support the amount of

funds for which the districtcourt held Orlando accountable. Defen dant’s ma in argument is th at as a result of his tumultuous on-again, offagain relation ship with Daniels, defendant did not particip ate
con tinuously

in the con spiracy

from 1996

until 1 999

. Defendant

contends that durin

g the fi fty -six months that his relation ship with Daniels went on, defendan t was actually only with Daniels for twenty-f

our months. (Resent. Tr. p. 572.) However, i n light of defendant’s knowledge of the
co ns pi ra cy, and the actions he took to aid the business, it was notclearly

errone ous for the district court to have found Orlando acc o untable for the amount of funds laundered atNo. 02-6107 United States v. Orlando 13

Dawn’s during the period of O rlando ’s involve ment with Dawn’s (between 1996 and 1999).

IV. CONCL USION

For the foregoing reasons, the judg ment of the district court is AFFIRMED.