                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0311n.06

                                            No. 13-5409
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                           Apr 24, 2014
                                FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )      ON APPEAL FROM THE
                                                           )      UNITED STATES DISTRICT
BOBBY AMBROSE,                                             )      COURT FOR THE EASTERN
                                                           )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                                )
                                                           )
                                                           )



BEFORE: NORRIS, COLE, and GIBBONS, Circuit Judges.

       GIBBONS, Circuit Judge. A jury convicted Bobby Ambrose of four drug offenses,

possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession

of a firearm. The district court judge sentenced him to 168 months’ imprisonment. On appeal,

we remanded for additional fact-finding and resentencing. On remand, the district court entered

an amended judgment sentencing Ambrose to 228 months’ imprisonment. Ambrose appeals

again, arguing that the district court failed to make the necessary factual findings and that it erred

in concluding that the panel’s resentencing order was a limited remand. For the following

reasons, we affirm.
No. 13-5409, United States v. Ambrose


                                                I.

       The facts surrounding Ambrose’s convictions are fully discussed in our prior opinion.

United States v. Beals, 698 F.3d 248, 261–63 (6th Cir. 2012). This appeal concerns the scope of,

and the district court’s compliance with, the original panel’s remand.

       Ambrose was charged with four drug offenses, possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c), and being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). Beals, 698 F.3d at 261. He moved to suppress

evidence seized from his home, which the district court denied. Id. Following a five-day trial,

the jury convicted Ambrose as charged.        Id.     The district court sentenced Ambrose to an

aggregate term of 168 months’ imprisonment. Id. at 271. As relevant to this appeal, the district

court imposed a concurrent mandatory minimum sentence of five years for Ambrose’s § 924(c)

conviction. Id.

       Ambrose’s first appeal concerned the denial of his suppression motion. He argued,

among other things, that all seized evidence should have been suppressed because the officers

searched in places not authorized by a warrant. Id. at 263. We remanded “for the limited

purpose of the district court making further findings” on three unresolved factual issues. Id. at

268. The factual issues were:

       First, officers testified that when they knocked on Ambrose’s apartment door in
       their attempt to secure consent to search the garage, R.176 at 186–87, Mrs.
       Ambrose opened it and freely let them in. R.176 at 43 (“[W]e asked if we could
       come in, she invited us in.”), 65 (“I told her who we were, identified ourselves,
       told her why we were there. She invited us in, told us to come in[.]”). The
       officers then walked through the apartment and into the hallway that leads to the
       garage. Id. at 43–44. According to Mrs. Ambrose, the officers entered her
       apartment without asking. Id. at 105. In fact, she asked to get dressed before they
       came in, but the officers said “no,” pushed open the door, and came in anyway.
       Id. at 105–06. She said she never invited them in or otherwise gave consent for
       them to enter. Id. at 109–10. The district court did not address this entry, so it
       never determined which version of the facts to believe.

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No. 13-5409, United States v. Ambrose



       Second, Major Hensley and Ronnie Adkins, Chief Investigator for the Unicoi
       County Sheriff’s Department, both testified that they searched Ambrose’s
       apartment at his wife’s request. Id. at 46–47, 51, 69–70. According to both
       officers, when they explained to Mrs. Ambrose the basis for their search of the
       garage, she became concerned for her own and her young child’s safety and asked
       the officers to “look around” her apartment for toxic items related to
       methamphetamine. They did so and found nothing of concern. Id. Mrs.
       Ambrose flatly denies asking officers to search her apartment. Id. at 109, 113–14.
       This dueling testimony was never resolved by the district court, so there is no
       finding whether or not Mrs. Ambrose consented to the search of the apartment.

       Finally, Ambrose’s mother and sister testified that they watched officers search
       Ambrose’s apartment after Mrs. Ambrose left to take her son to the hospital. Id.
       at 117–18, 124–25, 131. His mother saw officers take the mattress off the bed
       and rummage through dresser drawers. Id. at 118. Mrs. Ambrose corroborated
       this testimony, stating that it appeared her apartment had been thoroughly
       searched—her mattress was out of place, clothes were on the floor, and dresser
       drawers were left open. Id. at 110. The officers, however, testified to the
       contrary. Id. at 71 (“Q. Okay. You did not search that apartment where the young
       lady was? A. Only the area that she requested.”). This second alleged search of
       the apartment also was not addressed below.

Id. at 267–68 (footnote omitted).

       The Government cross-appealed the concurrent sentence imposed for the § 924(c)

conviction because the precedent upon which the sentence was based, United States v. Almany,

598 F.3d 238 (6th Cir. 2010), was overruled by Abbott v. United States, 131 S. Ct. 18 (2010),

while Ambrose’s appeal was pending. We held: “Because the district court declined to impose a

consecutive minimum sentence of five years for the conviction, Ambrose’s sentence is now

unlawful, and he must be resentenced.” Id. at 272. We explained that Ambrose “must be

resentenced consistent with Abbott (assuming, of course, that his § 924(c) conviction survives

the district court’s further factfinding regarding the search).” Id. at 273. We concluded: “For

these reasons, we . . . VACATE Ambrose’s sentence, and REMAND Ambrose’s case to the

district court for proceedings consistent with this opinion.” Id.




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No. 13-5409, United States v. Ambrose

       On remand, the district court referred the case to the magistrate judge, who issued a

Supplemental Report and Recommendation addressing the three factual issues we identified.

The magistrate judge again recommended that the district court deny Ambrose’s motion to

suppress. The magistrate judge discussed the conflicting testimony and specifically found the

following:

       In order to comply with the Sixth Circuit’s decision, and the referral of the
       District Judge for this supplemental report and recommendation, the Court has
       reviewed in its entirety the transcript from the February 4, 2009 hearing [Doc.
       176], and the notes taken by the undersigned at that hearing. From all of this, and
       the Court’s recollections regarding credibility of the various witnesses, the Court
       is prepared to address the issues raised by the Court of Appeals without the
       necessity for additional testimony. As pointed out by the Sixth Circuit, there was
       testimony at the hearing put forth by both the government and the defendant on
       each of the issues involved in the remand. The Court simply did not resolve those
       factual disputes in the previous report and recommendation.

       With respect to first issue, the initial entry of the officers into the apartment . . . .
       The testimony of these officers did not equivocate on the issue of whether Mrs.
       Ambrose invited them in, or whether they entered the apartment without her
       consent. The Court believed at the time, and believes today, that the officers told
       the truth, and that they did not enter the apartment until invited inside by Mrs.
       Ambrose after she chose to open the door. Their testimony is credible and
       consistent. In fact, one of their priorities was to “make contact with the
       Ambroses, even before we utilized the search warrant, to try to obtain a consent to
       search (the garage).” [Doc. 176 at 186–87].

       The factual dispute regarding the second issue is whether the search conducted in
       the apartment was at Mrs. Ambrose’s request or illegally carried out by the
       officers on their own initiative. . . . The officers again were clear on their
       testimony in this regard. The Court observed their demeanor as they described
       Mrs. Ambrose’s understandable concern for the safety and well being of her
       infant son when she, by her own account, learned that methamphetamine was
       being “cooked” in the garage scant feet away from where they lived. Their
       testimony was believed: the Court finds that defendant’s wife requested and
       directed the search of the apartment for substances which could prove harmful to
       her and her son.

       The third factual dispute regards the conflicting testimony of defendant’s mother,
       sister and wife with that of the officers as to whether a further search took place in
       her apartment after she left the apartment with her son. . . . Once again, the Court
       believes the officers told the truth, and that they only searched the areas she

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No. 13-5409, United States v. Ambrose

       requested while they were looking for substances that might harm her and her
       child. The Court finds that no search was done outside the presence of
       defendant’s wife.

       In summation, the Court finds that the officer’s [sic] were truthful regarding their
       actions regarding all three areas of inquiry set out in the Court of Appeals’
       decision. Accordingly, it is not necessary to address the issue of whether a
       blanket suppression of the incriminating evidence found in the garage is
       appropriate. Accordingly, it is RESPECTFULLY RECOMMENDED, once
       again, that the defendant’s Motion to Suppress [Doc. 127] be DENIED.

       The district court adopted “the findings of fact and conclusions of law contained in the

supplemental [report and recommendation],” stating:

       Even though no objection has been filed, the undersigned has nonetheless
       thoroughly reviewed the original R&R, the supplemental R&R, the defendant’s
       motion, the parties’ original briefing, the Sixth Circuit’s partial remand opinion,
       the transcript of the original motion hearing, and all other relevant contents of the
       docket. Having done so, the court finds itself in agreement with the magistrate
       judge that the testifying officers “were truthful regarding their actions regarding
       all three areas of inquiry set out in the Court of Appeals’ decision. Accordingly,
       it is not necessary to address the issue of whether a blanket suppression of the
       incriminating evidence found in the garage is appropriate.”

       Having concluded that Ambrose’s § 924(c) conviction survived his motion to suppress,

the district court turned to sentencing. The district court found that the remand was “a limited

one.” It interpreted the remand as an instruction “to do one thing only— impose the 60-month §

924(c) sentence consecutively in light of the change in the law.” The district court therefore held

that a resentencing hearing was neither necessary nor authorized. The district court entered an

amended judgment, sentencing Ambrose to 228 months’ imprisonment, including a 60 month

term for the § 924(c) conviction “to be served consecutively pursuant to the Supreme Court’s

decision in Abbott and the Sixth Circuit’s remand directive in Beal.”

                                                II.

       When reviewing a motion to suppress, we review de novo the district court’s legal

conclusions and review any factual findings for clear error. United States v. Kinison, 710 F.3d

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No. 13-5409, United States v. Ambrose

678, 681 (6th Cir. 2013). We “view the evidence in the light most favorable to the district

court’s factual findings.” United States v. McCraney, 674 F.3d 614, 616–17 (6th Cir. 2012).

“Factual findings or credibility determinations by the district court are clearly erroneous only if

‘the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.’” United States v. Simmons, 174 F. App’x 913, 916 (6th Cir. 2006)

(quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)).

       Ambrose challenges the district court’s opinion on the basis that it is “conclusory.” But a

district court is not required to rewrite the magistrate judge’s credibility determinations and

factual findings; it “may accept . . . in whole or in part, the findings or recommendations made

by the magistrate judge.” 28 U.S.C. § 636(b)(1). Here, even though Ambrose did not object to

the magistrate judge’s supplemental report and recommendation, the district court “thoroughly

reviewed the original R&R, the supplemental R&R, the defendant’s motion, the parties’ original

briefing, the Sixth Circuit’s partial remand opinion, the transcript of the original motion hearing,

and all other relevant contents of the docket.” The district court then properly adopted the

magistrate judge’s findings of fact, which discussed each of the three conflicting areas of

testimony, made credibility determinations regarding the conflicting testimony, and made factual

findings on the basis of those credibility determinations.

       Ambrose also suggests that the magistrate judge’s supplemental findings of fact were

deficient. He bases this argument on the fact that although the magistrate judge found the

officers credible, the judge did not expressly find the defense witnesses incredible.          This

argument is unmeritorious. The court does not, as Ambrose contends, need to explicitly state

that the defense witnesses were incredible. This finding is implicit in the court’s unambiguous

decision to credit the police officers’ testimony over the testimony of the other witnesses. And



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No. 13-5409, United States v. Ambrose

“[w]here there are two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

                                                  III.

        Ambrose contends that the original panel issued a general remand in its October 16, 2012

opinion and that the district court misinterpreted the remand when it limited itself to the issue of

consecutive sentencing under Abbott. We review that question de novo. United States v. Parks,

700 F.3d 775, 777 (6th Cir. 2012).

        “Under 28 U.S.C. § 2106, courts of appeals may issue either general or limited remands.

A general remand permits the district court to redo the entire sentencing process, including

considering new evidence and issues.” United States v. McFalls, 675 F.3d 599, 604 (6th Cir.

2012) (internal citations omitted).      A limited remand, however, does not permit de novo

resentencing; it “constrains the district court’s authority to the issue or issues adjudicated.” Id.

“Unless otherwise specified, a remand order is presumed to be general.” Id. “A limited remand

must explicitly outline the issues to be addressed by the district court and create a narrow

framework within which the district court must operate.” Id. “It must convey clearly the intent

to limit the scope of the district court’s review. . . . by outlining the procedure the district court is

to follow, articulating the chain of intended events with particularity, and leaving no doubt as to

the scope of the remand.” Id. (internal citation omitted). The difference between a limited and

general remand, therefore, “is the presence of limiting language.” United States v. Lopez, 453 F.

App’x 602, 604 (6th Cir. 2011). “When a court simply vacates a sentence and remands for

‘resentencing,’ or ‘resentencing consistent with this opinion,’ that will typically be a general

remand.” United States v. Hunter, 646 F.3d 372, 374 (6th Cir. 2011).




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No. 13-5409, United States v. Ambrose

       Ambrose makes two arguments in support of his position that the remand in this case was

general. First, he focuses on the fact that the original panel used the phrase “consistent with this

opinion” in ordering the remand.        This argument is unconvincing.         The single-sentence

conclusion followed an entire section considering whether Ambrose must be resentenced in light

of the Supreme Court’s intervening decision in Abbott. We held: “Because the district court

declined to impose a consecutive minimum sentence of five years for the conviction, Ambrose’s

sentence is now unlawful, and he must be resentenced.” Beals, 698 F.3d at 272. We then

determined that Ambrose “must be resentenced consistent with Abbott (assuming, of course, that

his § 924(c) conviction survives the district court’s further factfinding regarding the search).” Id.

at 273. It was “[f]or th[is] reason” that Ambrose’s sentence was vacated and the case remanded.

Id. These are all examples of limiting language. By instructing the district court to resentence

Ambrose in light of Abbott, the opinion outlined the single issue to be addressed and created a

narrow framework within which the district court was required to operate. See McFalls, 675

F.3d at 604.

       Ambrose’s second argument is broader. He contends that because treatment of an 18

U.S.C. § 924(c) conviction is “interdependent” and part of the “sentencing package,” de novo

sentencing is required. We have explained that “[t]he presumption in favor of a general remand

is necessarily strong in the context of a resentencing because the calculation of a sentence under

the Guidelines ‘requires a balancing of many related variables,’ and ‘[t]hese variables do not

always become fixed independently of one another.’”           McFalls, 675 F.3d at 605 (second

alteration in original) (quoting United States v. Campbell, 168 F.3d 263, 268 (6th Cir. 1999)).

Permitting de novo sentencing where sentences are interdependent allows “the district judge




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No. 13-5409, United States v. Ambrose

discretion to consider and balance all of the competing elements of the sentencing calculus.”

Campbell, 168 F.3d at 266.

       Ambrose relies primarily on United States v. Clements, 86 F.3d 599 (6th Cir. 1996).

There, Clements appealed his convictions and sentence for conspiracy and attempt to possess

with intent to distribute methamphetamine and using a firearm in relation to a drug tracking

crime. Id. at 600. After the government conceded that Clements’s § 924(c) firearm conviction

was no longer valid in light of an intervening Supreme Court decision, the question was whether

the panel had statutory authority to vacate Clements’s sentence for the drug convictions. Id. The

panel held that in a case on direct appeal from a multiple count criminal conviction, a court of

appeals may vacate and remand an entire sentencing package despite the fact that it includes an

unchallenged sentence “where the several sentences are interdependent.” Id. at 601–02. In

Clements’s case, the existence of the firearm conviction foreclosed the imposition of an

additional sentencing enhancement for the drug convictions. Id. at 601. For that reason, we

concluded that Clements’s sentences were interdependent and remanded the case for de novo

resentencing. Id.

       Ambrose argues that his sentence is likewise “interdependent” because the district court

may have considered a lower sentence to meet the 18 U.S.C. § 3553(a) factors had it known that

Ambrose’s § 924(c) mandatory sentence was consecutive.            Initially, Clements is of little

assistance because Clements concerned an appellate court’s power under § 2106 to vacate all

sentences where only one is reversed on appeal. Clements, 86 F.3d at 601. The issue in this

appeal is the proper interpretation of the remand. On that question, while McFalls and Campbell

certainly stand for the proposition that the presumption in favor of general remands is stronger in

cases implicating Guidelines sentences, neither supports the proposition that all cases implicating



                                                -9-
No. 13-5409, United States v. Ambrose

§ 3553(a) are subject to general remands. Even in such cases, the ordinary rules of construction

apply—clear limiting language denotes a limited remand. See McFalls, 675 F.3d at 604. As

there was clear limiting language in our prior opinion, the presumption in favor of general

remands is overcome.

       Regardless, Ambrose’s sentence is not so interdependent to require a general remand.

While Ambrose challenges the total 228-month term of imprisonment, his argument ignores the

fact that his amended sentence was composed of numerous discrete, independent sentences, each

of which was adequately supported. Ambrose was sentenced to a term of imprisonment of 168

months on each of counts 1, 2, 9, and 11 (the § 924(c) count), to run concurrently. The district

court concluded that the sentences would afford adequate deterrence and provide just

punishment. Ambrose’s amended sentence consisted of “168 months as to Counts 1, 2, and 9 . . .

with each of those terms to be served concurrently, and a term of 60 months as to [the § 924(c)

count], to be served consecutively.” The appeal and resentencing did not disturb the 168-month

sentences for counts 1, 2, and 9, but concerned only the propriety of the sentence as to the §

924(c) count. Accordingly, there was no need for the district court to reconsider the propriety of

the sentences for counts 1, 2, and 9 in light of § 3553(a) as each sentence was independent of the

§ 924(c) sentence and each was found to be adequately supported. Ambrose even concedes that

“[t]here was nothing between the appeal and resentencing which would have cast doubt on these

findings.”

                                               IV.

       For these reasons, we affirm Ambrose’s convictions and sentence.




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