U.S. v. Orlando, 02-6107.

• Decision Date: 08 April 2004
• Docket Number: No. 02-6107.,02-6107.
• Citation: 363 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence ORLANDO, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

363 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence ORLANDO, Sr., Defendant-Appellant.

No. 02-6107.

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2004.

Decided and Filed: April 8, 2004.

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Jimmie Lynn Ramsaur (argued and briefed), Assistant United States Attorney, Nashville, TN, for Plaintiff-Appellee.

John L. Kea, II, Jerry Scott (argued and briefed), Scott & Kea, Murfreesboro, TN, Lawrence Orlando, Sr., Federal Correctional Institute, Yazoo City, MS, for Defendant-Appellant.

Before: MERRITT and SUTTON, Circuit Judges; FEIKENS, District Judge.^*

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 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 Sentencing Guidelines

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 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.)

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 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).

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, 131 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." Ca...