United States v. Orlando

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 8, 2004
• Docket: 02-6107
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Orlando No. 02-6107 ELECTRONIC CITATION: 2004 FED App. 0100P (6th Cir.) File Name: 04a0100p.06 ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Jerry Scott, SCOTT & KEA, Murfreesboro, Tennessee, for Appellant. Jimmie UNITED STATES COURT OF APPEALS Lynn Ramsaur, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6107 FEIKENS, District Judge. v. - > I. INTRODUCTION , LAWRENCE ORLANDO, SR., - Defendant-Appellant, Lawrence Orlando, Sr., was Defendant-Appellant. - convicted by a jury for Conspiracy to Use Mail and Facilities N in Interstate Commerce in Aid of Racketeering, in violation Appeal from the United States District Court of 18 U.S.C. §371, and Conspiracy to Commit Money for the Middle District of Tennessee at Nashville. Laundering, in violation of 18 U.S.C. §1956(h). After No. 98-00160—Todd J. Campbell, District Judge. sentencing, defendant appealed his sentence and conviction to this Court. This Court remanded his case for resentencing to Argued: January 29, 2004 determine the amount of laundered funds for which defendant should be held accountable. United States v. Orlando, 281 Decided and Filed: April 8, 2004 F.3d 586 (6th Cir. 2002). On remand, the district court resentenced defendant to sixty-three months imprisonment Before: MERRITT and SUTTON, Circuit Judges; and two years supervised release, the same as defendant’s FEIKENS, District Judge.* original sentence.

_________________ Now defendant appeals the sentence imposed upon him on remand. First, defendant argues that the district court erred in COUNSEL applying on remand at defendant’s resentencing the version of U.S.S.G. §2S1.1 which was in effect at the time of ARGUED: Jerry Scott, SCOTT & KEA, Murfreesboro, defendant’s original sentencing. Defendant contends that the Tennessee, for Appellant. Jimmie Lynn Ramsaur, 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 * The Honorab le John Feikens, United States District Judge for the original sentencing, the evidence and factual determinations Eastern District of Michigan, sitting by designation.

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of the district court do not support a three-point enhancement example, the district court failed to make a specific pursuant to §2S1.1. determination as to when Orlando entered the conspiracy and failed to indicate the scope of criminal activity Orlando We find that the district court on remand was correct in agreed to undertake. Id. at 601. This Court explained that applying the version of §2S1.1 in effect at the time of “[a]lthough the evidence may justify holding Orlando defendant’s original sentencing, as opposed to the version in accountable for [approximately] $449,000 of laundered effect at the time of defendant’s resentencing. We also find money, the district court’s failure to explain its factual that the district court’s factual findings were not clearly determination requires us to remand the case for erroneous. Accordingly, we AFFIRM defendant’s sentence. resentencing.” Id. at 601. Therefore, we remanded the case for resentencing. II. FACTUAL BACKGROUND Between the date of defendant’s original sentencing A detailed account of the facts underlying defendant hearing, on September 15, 2000, and the date of defendant’s Orlando’s conviction is set forth in Orlando, 281 F.3d 586 resentencing hearing, on July 18, 2002, §2S1.1 of the (6th Cir. 2002). Therefore, a full statement of the facts of the Sentencing Guidelines was amended, effective November 1, case need not be repeated. The following additional facts are 2001. At the time of defendant’s sentencing, §2S1.1 provided relevant on appeal. for a three-point enhancement of a defendant’s base offense level if the value of the laundered funds exceeded $350,000. A. Procedural Background and Sentencing Guidelines §2S1.1(b)(2)(D). The amended version of §2S1.1 required an entirely different calculation to determine both a defendant’s Subsequent to defendant Orlando’s conviction, on base offense level and whether an enhancement was September 15, 2000, the district court sentenced defendant to appropriate, and would have resulted in a “drastically sixty-three months imprisonment and two years supervised different” sentence for Orlando. (Govt.’s Mt. for release. This sentence was based on the district court’s Clarification, June 4, 2002.) application of §2S1.1 of the Sentencing Guidelines, pursuant to which the district court calculated defendant’s offense level Therefore, on June 4, 2002, the Government filed a motion as 26. The district court held defendant accountable for with this Court seeking clarification as to which version of laundered funds in the amount of $449,655.62, and therefore §2S1.1 should apply on remand. The Government wanted to enhanced defendant’s base offense level of 23 by three points determine “whether the entire sentence ha[d] been vacated by in order to arrive at the offense level of 26. Defendant [this Court] or whether the remand was for the limited objected to the amount of laundered funds for which he was purpose of determining the amount of laundered funds.” held accountable, and appealed both his conviction and (Govt.’s Mt. for Clarification, June 4, 2002.) By Order dated sentence. June 12, 2002, this Court denied the Government’s motion. This Court explained that “the context of the filed opinion On appeal, this Court held that the district court erred in makes it obvious that the remand for resentencing is limited enhancing Orlando’s base offense level by three points to determining the amount of laundered funds properly pursuant to §2S1.1 “without making specific factual findings attributable to Orlando.” (Order of Sixth Circuit, June 12, concerning the amount of laundered funds for which 2002.) [Orlando] was accountable.” Orlando, 281 F.3d at 601. For No. 02-6107 United States v. Orlando 5 6 United States v. Orlando No. 02-6107

B. The District Court’s Findings On Remand generated funds in the minimum amount of $408,005.62.1 (Resent. Tr. p. 579-582.) On remand, the district court addressed two issues: (1) whether the amended version of §2S1.1 of the Guidelines Accordingly, the district court applied the version of §2S1.1 should apply on remand to defendant’s resentencing; and which had been applicable at the time of defendant’s original (2) the amount of laundered funds for which to hold Orlando sentencing, and resentenced defendant to sixty-three months accountable. (Resent. Tr. p. 534.) First, the district court imprisonment and two years supervised release – a sentence determined that the remand was “limited to determining the identical to the one previously imposed. (Amended amount of laundered funds properly attributable to Orlando,” Judgment, July 22, 2002.) Defendant now appeals his and that “the limited remand require[d] it to apply the resentencing. guidelines that were in effect at the time of the original sentencing...on September 19th, 2000.” (Resent. Tr. p. 549- III. ANALYSIS 50.) Second, the district court made particularized findings regarding Orlando’s involvement in the conspiracy, and A. Standards of Review determined that Orlando was accountable for at least $408,005.62 in laundered funds. (Resent. Tr. p. 580.) A district court’s determination as to whether a remand is general or limited is reviewed de novo. United States v. The district court made the following factual O’Dell, 320 F.3d 674, 679 (6th Cir. 2003) (citing United determinations: (1) Orlando entered the money laundering States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997)). A conspiracy in early 1996; (2) Orlando agreed to jointly district court’s findings of fact at sentencing are reviewed for undertake participation in the operation of Dawn’s and the clear error, while a district court’s interpretation of the conspiracy to launder money from early 1996 through Sentencing Guidelines are reviewed de novo. United States November of 1999; (3) Orlando knew from the beginning of v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002). A his relationship with Daniels that Dawn’s was a front for sentencing court’s “factual findings concerning the amount of prostitution; (4) Orlando made improvements to the business loss for which the defendant is to be held accountable as in 1996 and in 1997, without receiving any monetary relevant conduct pursuant to Sentencing Guideline section payment; (5) Orlando picked up envelopes of money from 1B1.3(a)(1)” is reviewed for clear error. United States v. Dawn’s at least twenty-five times during 1997 and 1998; Prince, 214 F.3d 740, 769 (6th Cir. 2000). (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 1 This figure is based on the district court’s review of business tax the time Orlando was involved in the conspiracy, the business receipts from the relevant period of time. The court noted that it found the testimony of Joan Gou ld 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 “reaso nably conclude that these dollar numb ers [were] quite conservative.” (Resent. T r. 583 .) No. 02-6107 United States v. Orlando 7 8 United States v. Orlando No. 02-6107

B. On Remand the District Court Was Correct in beyond the matters forming the basis of the appellate court’s Applying the Sentencing Guidelines in Effect at the remand.” Campbell, 168 F.3d at 265. Time of Defendant’s Original Sentencing In the present case, this Court clearly conveyed in its 1. The Remand Was Limited to Determining the Opinion of February 25, 2002 that its remand for resentencing Amount of Laundered Money for Which was limited to determining the amount of laundered money Defendant Was Accountable for which defendant Orlando should be held accountable. In our Opinion, this Court held that the district court had erred Pursuant to 28 U.S.C. §2106, appellate courts have the by failing to make “specific findings to justify holding authority to grant either general or limited remands.2 Moore, Orlando accountable for $449,000 of laundered money.” 131 F.3d at 597. On a general remand, the district court may Orlando, 281 F.3d at 601. We did not take issue with the resentence a defendant de novo. Id. (citing United States v. sentence in its entirety, nor question the application of Hebeka, 89 F.3d 279, 284 (6th Cir. 1996)). However, on a §2S1.1, apart from the lack of factual findings supporting a limited remand a district court’s authority is constrained “to three-point enhancement under §2S1.1. Rather, we explained the issue or issues remanded.” Moore, 121 F.3d at 598. To that though “the evidence may justify holding Orlando constitute a limited remand, the appellate court “must convey accountable for $449,000 of laundered money, the district clearly [its] intent to limit the scope of the district court’s court’s failure to explain its factual determination requires us review.” United States v. Campbell, 168 F.3d 263, 267 (6th to remand the case for resentencing.” Id. at 601. Cir. 1999). The limiting language defining the scope of an appellate court’s mandate may be found “anywhere in an In addition, in this Court’s Order of June 12, 2002, we opinion or order, including a designated paragraph or section, stated clearly that our remand was a limited one. This Court or certain key identifiable language.” Id. at 267. issued the Order in response to a Motion for Clarification by the Government, in which the Government pointed out that Under the mandate rule, “a district court is bound to the §2S1.1 had been amended since the time of defendant’s scope of the remand issued by the court of appeals.” original sentencing and that the results under the new version Campbell, 168 F.3d at 265. This Court has emphasized that would vary dramatically. Rather than engaging in a “the trial court must implement both the letter and the spirit discussion as to whether the amended version of §2S1.1 of the mandate, taking into account the appellate court’s should apply on remand, this Court summarily denied the opinion and the circumstances it embraces.” United States v. Government’s Motion. By way of explanation, we stated Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (citations unequivocally that “the context of the filed opinion makes it omitted). Stated another way, “the mandate rule instructs that obvious that the remand for resentencing is limited to the district court is without authority to expand its inquiry determining the amount of laundered funds properly attributable to Orlando.” (Order of Sixth Circuit, June 12, 2002.) 2 28 U.S.C. §2 106 states: “The Supreme Court or any other court of app ellate jurisdiction may affirm, modify, vacate, set aside or reverse any Under the mandate rule, because this Court conveyed judgment, decree, or order of a court lawfully brought before it for clearly that the remand for resentencing was limited to review, and may remand the case and direct the entry of such appropriate determining the amount of laundered funds for which Orlando judgment, decree, or order, o r requ ire such further proceedings to be had was accountable, the district court’s authority on remand was as may be just under the circumstances.” No. 02-6107 United States v. Orlando 9 10 United States v. Orlando No. 02-6107

limited to resolving that issue alone. Because the remand On its face, §1B1.11 says nothing about the issue presently was a limited one, the district court lacked the authority to before this Court. The relevant comparison at issue in review defendant’s sentence de novo under the amended §1B1.11 is between the Guidelines in effect at the time of a version of §2S1.1. Therefore, the district court was correct in defendant’s sentencing versus those in effect at the time of a limiting its analysis to determining the amount of laundered defendant’s relevant offense, not between the version of the funds attributable to Orlando and in applying the version of Guidelines in effect at the time of resentencing versus those §2S1.1 which had been in effect at the time of defendant’s in effect at the time of a defendant’s original sentencing. In original sentencing. addition, the cases interpreting §1B1.11 cited by defendant are not persuasive. United States v. Cruz-Aceuedo, 106 F.3d 2. Section §1B1.11 of the Sentencing Guidelines 402 (6th Cir. 1996), is an unpublished opinion and therefore not binding precedent, and United States v. Clemons, 999 Defendant argues that a court on remand should apply the F.2d 154 (6th Cir. 1993), upon which Cruz-Aceuedo relies, version of the Sentencing Guidelines in effect at the time of does not address a resentencing issue. Furthermore, the ex a defendant’s resentencing. For this proposition, defendant post facto concern underlying the exception to the general relies upon §1B1.11 of the Guidelines, a section which does rule is not present at the resentencing stage, in a case like the not support defendant’s argument either on its face or by its present one, where a defendant seeks to have applied to his reasoning. Section 1B1.11 provides that as a general rule a case advantageous post-appeal changes to the Guidelines. court must apply the version of the Guidelines in effect at the time a defendant is sentenced, unless this would violate the ex An ex post facto problem occurs only where “the post facto clause of the United States Constitution. Section Guidelines in effect at the time of sentencing provide for a 1B1.11 states: higher range than those in effect at the time the crime was committed.” United States v. Green, 305 F.3d 422, 432 (6th (a) The court shall use the Guidelines Manual in effect Cir. 2002) (citation omitted). Where the Guidelines in effect on the date that the defendant is sentenced. (b)(1) If the at the time of resentencing are less severe than those applied court determines that use of the Guidelines Manual in to a defendant at the time of his original sentencing (assuming effect on the date that the defendant is sentenced would his original sentencing did not violate the ex post facto violate the ex post facto clause of the United States clause), no ex post facto problem exists at the resentencing Constitution, the court shall use the Guidelines Manual stage. In the absence of an ex post facto danger, there is no in effect on the date that the offense of conviction was justification to apply any version of the Guidelines other than committed. the version applied at the time of a defendant’s original sentencing. A contrary rule would allow defendants to The exception to the general rule arises only when ex post benefit arbitrarily from the windfall of recently amended facto concerns are implicated at the time of sentencing, and in more lenient Guidelines, burden district courts unnecessarily, that case an earlier version of the Guidelines must be used. and undermine the goal of finality in the judicial process. 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 Finally, the recent enactment of 18 U.S.C. §3742(g), in (6th Cir. 1991)). 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 12 United States v. Orlando No. 02-6107

Remedies and Tools Against the Exploitation of Children dating Daniels in the beginning of 1996, (Sent. Tr. p. 437), Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 and that he knew Dawn’s was a massage parlor used as a front Stat. 650 (2003)). In relevant part, §3742(g) provides that, for prostitution within a short period of time. (Sent. Tr. p. where a case is remanded for resentencing, as in the present 470.) Orlando admits that he transported sealed envelopes case, “the court shall apply the guidelines [...] that were in from Dawn’s to Daniels approximately twenty-five times effect on the date of the previous sentencing of the defendant during 1997 and 1998, (Sent. Tr. p. 448), and that he made prior to the appeal...” This statute was enacted subsequent to improvements at Dawn’s between 1996 and 1997. (Sent. Tr. the date of defendant’s resentencing, and therefore does not p. 455.) In addition, Orlando admits he signed a business apply to the present case. However, to the extent this statute license for Daniels in an attempt to open another spa. (Sent. clarifies what was prior to its enactment an open question, we Tr. p. 493). Orlando also admits his son provided security at refer to it as additional support for the course taken by the Dawn’s for a period of time, and that his daughter-in-law district court in the present case. worked there as a manager. (Sent. Tr. p. 507). The evidence demonstrates that Orlando had knowledge of the business, C. The Factual Findings Justifying a Three-Point aided the business at times, and personally benefitted from the Enhancement Under §2S1.1 Were Not Clearly success of the business. Based on this evidence, the district Erroneous court’s factual determinations regarding the date Orlando entered the conspiracy and the scope of Orlando’s Defendant argues: (1) the district court failed to make involvement are not clearly erroneous. particularized findings as to the date defendant entered the conspiracy; (2) the district court rendered erroneous findings Finally, pursuant to §1B1.3 of the Sentencing Guidelines, of fact regarding the scope of the conspiracy; and (3) the base offense levels and specific offense characteristics are to evidence does not support the amount of money for which the be determined “in the case of jointly undertaken criminal district court held defendant accountable. activity” on the basis of “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken As stated above, a district court’s findings of fact at activity, that occurred during the commission of the offense sentencing are reviewed for clear error. Canestraro, 282 F.3d of conviction....” §1B1.3(a)(1)(B). Defendant argues that the at 431. Under the clear error standard, a reviewing court “will evidence does not support the amount of funds for which the not reverse a lower court’s finding of fact simply because [it] district court held Orlando accountable. Defendant’s main ‘would have decided the case differently.’” Easley v. argument is that as a result of his tumultuous on-again, off- Cromartie, 532 U.S. 234, 242 (2001) (citing Anderson v. again relationship with Daniels, defendant did not participate Bessemer City, 470 U.S. 564, 573 (1985)). Rather, to continuously in the conspiracy from 1996 until 1999. determine whether a district court has committed clear error, Defendant contends that during the fifty-six months that his a reviewing court must ask “whether on the entire evidence it relationship with Daniels went on, defendant was actually is left with the definite and firm conviction that a mistake has only with Daniels for twenty-four months. (Resent. Tr. p. been committed.” Easley, 532 U.S. 234 at 242 (2001) 572.) However, in light of defendant’s knowledge of the (citations omitted). conspiracy, and the actions he took to aid the business, it was not clearly erroneous for the district court to have found Defendant does not concede that he entered the conspiracy Orlando accountable for the amount of funds laundered at before August of 1999. However, defendant admits he started 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.