United States of America v. Lawrence Orlando, Sr.

*The Honorab le 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

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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 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
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.)

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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
1This 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
“reaso nably conclude that these dollar numb ers [were] quite
conservative.” (Resent. T r. 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).

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No. 02-6107 United States v. Orlando 7
228 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
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, o r 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 of laundered funds for which Orlando
was accountable, the district court’s authority on remand was

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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

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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, off-
again 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

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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.

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