*

The Honorable John Feikens, United States District Judge for the

Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0100P (6th Cir.)

File Name: 04a0100p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE ORLANDO, SR.,

Defendant-Appellant.

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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 

Before: MERRITT and SUTTON, Circuit Judges;

FEIKENS, District Judge.*

_________________

COUNSEL

ARGUED: Jerry Scott, SCOTT & KEA, Murfreesboro,

Tennessee, for Appellant. Jimmie Lynn Ramsaur,

2 United States v. Orlando No. 02-6107

ASSISTANT UNITED STATES ATTORNEY, Nashville,

Tennessee, for Appellee. ON BRIEF: Jerry Scott, SCOTT

& KEA, Murfreesboro, Tennessee, for Appellant. Jimmie

Lynn Ramsaur, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

FEIKENS, District Judge. 

I. INTRODUCTION

Defendant-Appellant, Lawrence Orlando, Sr., was

convicted by a jury for Conspiracy to Use Mail and Facilities

in Interstate Commerce in Aid of Racketeering, in violation

of 18 U.S.C. §371, and Conspiracy to Commit Money

Laundering, in violation of 18 U.S.C. §1956(h). After

sentencing, defendant appealed his sentence and conviction to

this Court. This Court remanded his case for resentencing to

determine the amount of laundered funds for which defendant

should be held accountable. United States v. Orlando, 281

F.3d 586 (6th Cir. 2002). On remand, the district court

resentenced defendant to sixty-three months imprisonment

and two years supervised release, the same as defendant’s

original sentence. 

Now defendant appeals the sentence imposed upon him on

remand. First, defendant argues that the district court erred in

applying on remand at defendant’s resentencing the version

of U.S.S.G. §2S1.1 which was in effect at the time of

defendant’s original sentencing. Defendant contends that the

district court on remand should have applied the version of

§2S1.1 in effect at the time of his resentencing. Second,

defendant argues that even if the district court was correct in

applying the version of §2S1.1 in effect at the time of his

original sentencing, the evidence and factual determinations
No. 02-6107 United States v. Orlando 3

of the district court do not support a three-point enhancement

pursuant to §2S1.1. 

We find that the district court on remand was correct in

applying the version of §2S1.1 in effect at the time of

defendant’s original sentencing, as opposed to the version in

effect at the time of defendant’s resentencing. We also find

that the district court’s factual findings were not clearly

erroneous. Accordingly, we AFFIRM defendant’s sentence.

II. FACTUAL BACKGROUND

A detailed account of the facts underlying defendant

Orlando’s conviction is set forth in Orlando, 281 F.3d 586

(6th Cir. 2002). Therefore, a full statement of the facts of the

case need not be repeated. The following additional facts are

relevant on appeal.

A. Procedural Background and SentencingGuidelines

Subsequent to defendant Orlando’s conviction, on

September 15, 2000, the district court sentenced defendant to

sixty-three months imprisonment and two years supervised

release. This sentence was based on the district court’s

application of §2S1.1 of the Sentencing Guidelines, pursuant

to which the district court calculated defendant’s offense level

as 26. The district court held defendant accountable for

laundered funds in the amount of $449,655.62, and therefore

enhanced defendant’s base offense level of 23 by three points

in order to arrive at the offense level of 26. Defendant

objected to the amount of laundered funds for which he was

held accountable, and appealed both his conviction and

sentence. 

On appeal, this Court held that the district court erred in

enhancing Orlando’s base offense level by three points

pursuant to §2S1.1 “without making specific factual findings

concerning the amount of laundered funds for which

[Orlando] was accountable.” Orlando, 281 F.3d at 601. For

4 United States v. Orlando No. 02-6107

example, the district court failed to make a specific

determination as to when Orlando entered the conspiracy and

failed to indicate the scope of criminal activity Orlando

agreed to undertake. Id. at 601. This Court explained that

“[a]lthough the evidence may justify holding Orlando

accountable for [approximately] $449,000 of laundered

money, 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 resentencing.

Between the date of defendant’s original sentencing

hearing, on September 15, 2000, and the date of defendant’s

resentencing hearing, on July 18, 2002, §2S1.1 of the

Sentencing Guidelines was amended, effective November 1,

2001. At the time of defendant’s sentencing, §2S1.1 provided

for a three-point enhancement of a defendant’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 offense level and whether an enhancement was

appropriate, and would have resulted in a “drastically

different” sentence for Orlando. (Govt.’s Mt. for

Clarification, June 4, 2002.) 

Therefore, on June 4, 2002, the Government filed a motion

with this Court seeking clarification as to which version of

§2S1.1 should apply on remand. The Government wanted to

determine “whether the entire sentence ha[d] been vacated by

[this Court] or whether the remand was for the limited

purpose of determining the amount of laundered funds.”

(Govt.’s Mt. for Clarification, June 4, 2002.) By Order dated

June 12, 2002, this Court denied the Government’s motion.

This Court explained that “the context of the filed opinion

makes it obvious that the remand for resentencing is limited

to determining the amount of laundered funds properly

attributable to Orlando.” (Order of Sixth Circuit, June 12,

2002.) 
No. 02-6107 United States v. Orlando 5

B. The District Court’s Findings On Remand

On remand, the district court addressed two issues:

(1) whether the amended version of §2S1.1 of the Guidelines

should apply on remand to defendant’s resentencing; and

(2) the amount of laundered funds for which to hold Orlando

accountable. (Resent. Tr. p. 534.) First, the district court

determined that the remand was “limited to determining the

amount of laundered funds properly attributable to Orlando,”

and that “the limited remand require[d] it to apply the

guidelines that were in effect at the time of the original

sentencing...on September 19th, 2000.” (Resent. Tr. p. 549-

50.) Second, the district court made particularized findings

regarding Orlando’s involvement in the conspiracy, and

determined that Orlando was accountable for at least

$408,005.62 in laundered funds. (Resent. Tr. p. 580.)

The district court made the following factual

determinations: (1) Orlando entered the money laundering

conspiracy in early 1996; (2) Orlando agreed to jointly

undertake participation in the operation of Dawn’s and the

conspiracy to launder money from early 1996 through

November of 1999; (3) Orlando knew from the beginning of

his relationship with Daniels that Dawn’s was a front for

prostitution; (4) Orlando made improvements to the business

in 1996 and in 1997, without receiving any monetary

payment; (5) Orlando picked up envelopes of money from

Dawn’s at least twenty-five times during 1997 and 1998;

(6) from August of 1999 to November of 1999 Orlando

handled the payment of expenses for Dawn’s during the

period that Daniels 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 off his

loans, [and] she paid for certain exotic trips”; and (8) during

the time Orlando was involved in the conspiracy, the business

6 United States v. Orlando No. 02-6107

1

This figure is based on the district court’s review of business tax

receipts from the relevant period of time. The court noted that it found

the testimony of Joan Gould credible when she testified that the figures

were under reported and that they required doubling to be accurate.

Based on this and “many weeks of testimony,” the court felt it could

“reasonably conclude that these dollar numbers [were] quite

conservative.” (Resent. Tr. 583.)

generated funds in the minimum amount of $408,005.62.1

(Resent. Tr. p. 579-582.)

Accordingly, the district court applied the version of §2S1.1

which had been applicable at the time of defendant’s original

sentencing, and resentenced defendant to sixty-three months

imprisonment and two years supervised release – a sentence

identical to the one previously imposed. (Amended

Judgment, July 22, 2002.) Defendant now appeals his

resentencing.

III. ANALYSIS

A. Standards of Review

A district court’s determination as to whether a remand is

general or limited is reviewed de novo. United States v.

O’Dell, 320 F.3d 674, 679 (6th Cir. 2003) (citing United

States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997)). A

district court’s findings of fact at sentencing are reviewed for

clear error, while a district court’s interpretation of the

Sentencing Guidelines are reviewed de novo. United States

v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002). A

sentencing court’s “factual findings concerning the amount of

loss for which the defendant is to be held accountable as

relevant conduct pursuant to Sentencing Guideline section

1B1.3(a)(1)” is reviewed 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. §2106 states: “The Supreme Court or any other court of

appellate jurisdiction may affirm, modify, vacate, set aside or reverse any

judgment, decree, or order of a court lawfully brought before it for

review, and may remand the case and direct the entry of such appropriate

judgment, decree, or order, or require such further proceedings to be had

as may be just under the circumstances.”

B. On Remand the District Court Was Correct in

Applying the Sentencing Guidelines in Effect at the

Time of Defendant’s Original Sentencing

1. The Remand Was Limited to Determining the

Amount of Laundered Money for Which

Defendant Was Accountable 

Pursuant to 28 U.S.C. §2106, appellate courts have the

authority to grant either general or limited remands.

2 Moore,

131 F.3d at 597. On a general remand, the district court may

resentence a defendant de novo. Id. (citing United States v.

Hebeka, 89 F.3d 279, 284 (6th Cir. 1996)). However, on a

limited remand a district court’s authority is constrained “to

the issue or issues remanded.” Moore, 121 F.3d at 598. To

constitute a limited remand, the appellate court “must convey

clearly [its] intent to limit the scope of the district court’s

review.” United States v. Campbell, 168 F.3d 263, 267 (6th

Cir. 1999). The limiting language defining the scope of an

appellate court’s mandate may be found “anywhere in an

opinion or order, including a designated paragraph or section,

or certain key identifiable language.” Id. at 267.

Under the mandate rule, “a district court is bound to the

scope of the remand issued by the court of appeals.”

Campbell, 168 F.3d at 265. This Court has emphasized that

“the trial court must implement both the letter and the spirit

of the mandate, taking into account the appellate court’s

opinion and the circumstances it embraces.” United States v.

Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (citations

omitted). Stated another way, “the mandate rule instructs that

the district court is without authority to expand its inquiry

8 United States v. Orlando No. 02-6107

beyond the matters forming the basis of the appellate court’s

remand.” Campbell, 168 F.3d at 265. 

In the present case, this Court clearly conveyed in its

Opinion of February 25, 2002 that its remand for resentencing

was limited to determining the amount of laundered money

for which defendant Orlando should be held accountable. In

our Opinion, this Court held that the district court had erred

by failing to make “specific findings to justify holding

Orlando accountable for $449,000 of laundered money.”

Orlando, 281 F.3d at 601. We did not take issue with the

sentence in its entirety, nor question the application of

§2S1.1, apart from the lack of factual findings supporting a

three-point enhancement under §2S1.1. Rather, we explained

that though “the evidence may justify holding Orlando

accountable for $449,000 of laundered money, the district

court’s failure to explain its factual determination requires us

to remand the case for resentencing.” Id. at 601. 

In addition, in this Court’s Order of June 12, 2002, we

stated clearly that our remand was a limited one. This Court

issued the Order in response to a Motion for Clarification by

the Government, in which the Government pointed out that

§2S1.1 had been amended since the time of defendant’s

original sentencing and that the results under the new version

would vary dramatically. Rather than 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 explanation, we stated

unequivocally that “the context of the filed opinion makes it

obvious that the remand for resentencing is limited to

determining the amount of laundered funds properly

attributable to Orlando.” (Order of Sixth Circuit, June 12,

2002.) 

Under the mandate rule, because this Court conveyed

clearly that the remand for resentencing was limited to

determining the amount oflaundered funds for which Orlando

was accountable, the district court’s authority on remand was
No. 02-6107 United States v. Orlando 9

limited to resolving that issue alone. Because the remand

was a limited one, the district court lacked the authority to

review defendant’s sentence de novo under the amended

version of §2S1.1. Therefore, the district court was correct in

limiting its analysis to determining the amount of laundered

funds attributable to Orlando and in applying the version of

§2S1.1 which had been in effect at the time of defendant’s

original sentencing.

2. Section §1B1.11 of the Sentencing Guidelines

Defendant argues that a court on remand should apply the

version of the Sentencing Guidelines in effect at the time of

a defendant’s resentencing. For this proposition, defendant

relies upon §1B1.11 of the Guidelines, a section which does

not support defendant’s argument either on its face or by its

reasoning. Section 1B1.11 provides that as a general rule a

court must apply the version of the Guidelines in effect at the

time a defendant is sentenced, unless this would violate the ex

post facto clause of the United States Constitution. Section

1B1.11 states:

(a) The court shall use the Guidelines Manual in effect

on the date that the defendant is sentenced. (b)(1) If the

court determines that use of the Guidelines Manual in

effect on the date that the defendant is sentenced would

violate the ex post facto clause of the United States

Constitution, the court shall use the Guidelines Manual

in effect on the date that the offense of conviction was

committed. 

The exception to the general rule arises only when ex post

facto concerns are implicated at the time of sentencing, and in

that case an earlier version of the Guidelines must be used.

See United States v. Holmes, 975 F.2d 275, 278 (6th Cir.

1992) (citing United States v. Nagi, 947 F.2d 211, 213 n.1

(6th Cir. 1991)). 

10 United States v. Orlando No. 02-6107

On its face, §1B1.11 says nothing about the issue presently

before this Court. The relevant comparison at issue in

§1B1.11 is between the Guidelines in effect at the time of a

defendant’s sentencing versus those in effect at the time of a

defendant’s relevant offense, not between the version of the

Guidelines in effect at the time of resentencing versus those

in effect at the time of a defendant’s original sentencing. In

addition, the cases interpreting §1B1.11 cited by defendant

are not persuasive. United States v. Cruz-Aceuedo, 106 F.3d

402 (6th Cir. 1996), is an unpublished opinion and therefore

not binding precedent, and United States v. Clemons, 999

F.2d 154 (6th Cir. 1993), upon which Cruz-Aceuedo relies,

does not address a resentencing issue. Furthermore, the ex

post facto concern underlying the exception to the general

rule is not present at the resentencing stage, in a case like the

present one, where a defendant seeks to have applied to his

case advantageous post-appeal changes to the Guidelines. 

An ex post facto problem occurs only where “the

Guidelines in effect at the time of sentencing provide for a

higher range than those in effect at 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 severe than those applied

to a defendant at the time of his original sentencing (assuming

his original sentencing did not violate the ex post facto

clause), no ex post facto problem exists at the resentencing

stage. In the absence of an ex post facto danger, there is no

justification to apply any version of the Guidelines other than

the version applied at the time of a defendant’s original

sentencing. A contrary rule would allow defendants to

benefit arbitrarily from the windfall of recently amended

more lenient Guidelines, burden district courts unnecessarily,

and undermine the goal of finality in the judicial process. 

Finally, the recent enactment of 18 U.S.C. §3742(g), in

2003, has clarified that the correct approach for a district

court to take on remand is to apply the Guidelines in effect at

the time of a defendant’s original sentencing. (Prosecutorial
No. 02-6107 United States v. Orlando 11

Remedies and Tools Against the Exploitation of Children

Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117

Stat. 650 (2003)). In relevant part, §3742(g) provides that,

where a case is remanded for resentencing, as in the present

case, “the court shall apply the guidelines [...] that were in

effect on the date of the previous sentencing of the defendant

prior to the appeal...” This statute was enacted subsequent to

the date of defendant’s resentencing, and therefore does not

apply to the present case. However, to the extent this statute

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 Factual Findings Justifying a Three-Point

Enhancement Under §2S1.1 Were Not Clearly

Erroneous

Defendant argues: (1) the district court failed to make

particularized findings as to the date defendant entered the

conspiracy; (2) the district court rendered erroneous findings

of fact regarding the scope of the conspiracy; and (3) the

evidence does not support the amount of money for which the

district court held defendant accountable. 

As stated above, a district court’s findings of fact at

sentencing are reviewed for clear error. Canestraro, 282 F.3d

at 431. Under the clear error standard, a reviewing court “will

not reverse a lower court’s finding of fact simply because [it]

‘would have decided the case differently.’” Easley v.

Cromartie, 532 U.S. 234, 242 (2001) (citing Anderson v.

Bessemer City, 470 U.S. 564, 573 (1985)). Rather, to

determine whether a district court has committed clear error,

a reviewing court must ask “whether on the entire evidence it

is left with the definite and firm conviction that a mistake has

been committed.” Easley, 532 U.S. 234 at 242 (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 in the beginning of 1996, (Sent. Tr. p. 437),

and that he knew Dawn’s was a massage parlor used as a front

for prostitution within a short period of time. (Sent. Tr. p.

470.) Orlando admits that he transported sealed envelopes

from Dawn’s to Daniels approximately twenty-five times

during 1997 and 1998, (Sent. Tr. p. 448), and that he made

improvements at Dawn’s between 1996 and 1997. (Sent. Tr.

p. 455.) In addition, Orlando admits he signed a business

license for Daniels in an attempt to open another spa. (Sent.

Tr. p. 493). Orlando also admits his son provided security at

Dawn’s for a period of time, and that his daughter-in-law

worked there as a manager. (Sent. Tr. p. 507). The evidence

demonstrates that Orlando had knowledge of the business,

aided the business at times, and personally benefitted from the

success of the business. Based on this evidence, the district

court’s factual determinations regarding the date Orlando

entered the conspiracy and the scope of Orlando’s

involvement are not clearly erroneous.

Finally, pursuant to §1B1.3 of the Sentencing Guidelines,

base offense levels and specific offense characteristics are to

be determined “in the case of jointly undertaken criminal

activity” on the basis of “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

activity, that occurred during the commission of the offense

of conviction....” §1B1.3(a)(1)(B). Defendant argues that the

evidence does not support the amount of funds for which the

district court held Orlando accountable. Defendant’s main

argument is that as a result of his tumultuous on-again, offagain relationship with Daniels, defendant did not participate

continuously in the conspiracy from 1996 until 1999.

Defendant contends that during the fifty-six months that his

relationship with Daniels went on, defendant was actually

only with Daniels for twenty-four months. (Resent. Tr. p.

572.) However, in light of defendant’s knowledge of the

conspiracy, and the actions he took to aid the business, it was

not clearly erroneous for the district court to have found

Orlando accountable for the amount of funds laundered at
No. 02-6107 United States v. Orlando 13

Dawn’s during the period of Orlando’s involvement with

Dawn’s (between 1996 and 1999). 

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.