           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 05a1014n.06
                      Filed: December 29, 2005

                    United States Court of Appeals
                              FOR THE SIXTH CIRCUIT
                                   ___________

                                   No. 03-6414
                                   ___________

United States of America,               *
                                        *
      Plaintiff - Appellee,             *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Kentucky.
George T. Rorrer,                       *
                                        *
      Defendant - Appellant.            *
                                   ___________

                                   ___________

Before SUHRHEINRICH, BATCHELDER, and JOHN R. GIBSON,1 Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

      George Rorrer appeals from the sentence imposed upon him at resentencing
after we reversed in part his original sentence for conspiracy to commit money
laundering, 18 U.S.C. § 1956(h). Because Rorrer was resentenced before the Supreme




      1
       The Honorable John R. Gibson, United States Circuit Judge for the Eighth
Circuit Court of Appeals, sitting by designation.
Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), it is necessary to
remand to the district court2 for resentencing in accordance with Booker.
       Rorrer was convicted of conspiracy to commit money laundering based on his
role in arranging a loan from John Caporale, a drug dealer who wanted to conceal the
source of his profits, to a legitimate business. The facts of his case are set out at
length in our earlier opinion. United States v. Robertson, No. 00-6752, 67 Fed. Appx.
257, 262-64 (6th Cir. 2003). He was sentenced to 37 months' imprisonment. Rorrer
appealed his conviction and sentence; the government cross-appealed the sentence.
We affirmed the conviction. Id. at 268-69. Rorrer argued that he had not been
accorded his right to allocution. The record contained some indication that the district
court had invited Rorrer to speak before sentencing, but it was not clear that the court's
invitation had been extended to Rorrer himself, rather than his lawyer. The
government's counsel had attempted to clarify on the record that Rorrer had been
invited to speak, but even the exchange between Rorrer and the prosecutor was
ambiguous and failed to establish definitively that Rorrer had been given a chance for
allocution. On appeal, we stated that, although it appeared that Rorrer had been
accorded the opportunity for allocution, the record was not so clear that we could say
with certainty that the right had been observed. Id. at 271. In considering the
government's cross-appeal, we held the district court had erred in granting Rorrer a
two-level reduction for playing a minor role in the offense and in failing to enhance
his sentence for using a special skill in his offense. Id. at 271-73. Since these two
errors required vacatur of the sentence and remand, the allocution question was
mooted, but in our remand, we "suggest[ed] that the district court ensure that the
record of the resentencing procedures reflect the explicit offer to Rorrer of the
opportunity to allocute." Id. at 274.




      2
        The Honorable John G. Heyburn, II, Chief Judge, United States District Court
for the Western District of Kentucky.

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       On remand for resentencing, Rorrer was twice accorded the opportunity for
allocution. His counsel made legal arguments that Rorrer had not previously raised,
and Rorrer himself made such arguments in his allocution. Specifically, Rorrer
argued that he should have received a downward adjustment under U.S.S.G. §
2X1.1(b)(2), which provides a three-level downward adjustment when the offense was
conspiracy and the object of the conspiracy was not accomplished. The district court
denied the § 2X1.1(b)(2) adjustment because Rorrer and his co-conspirators had
completed all the acts necessary on their part for money laundering, and the only
remaining step, repayment of the loan, was up to a third party who was beyond the
conspirators' control. Rorrer also argued that he should receive a downward departure
because his offense was not within the heartland of money laundering and because
conditions in the prison where he had been confined were harsh. The court declined
to exercise its discretion to depart downward on the ground that Rorrer's offense was
outside the heartland of money laundering; in fact, the court stated that Rorrer acted
to conceal the origin of the money, which is the gist of concealment money laundering
under § 1956(h). The court stated that the sentencing proceeding was not the
appropriate place to make complaints about prison conditions. The court resentenced
Rorrer without the minor role reduction we had held to be inapplicable and with the
special skills enhancement; the result was an increase in the sentence to 57 months'
imprisonment with two years of supervised release.

       Rorrer took this appeal on November 4, 2003. On January 12, 2005, the
Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005), which held
that the United States Sentencing Guidelines are henceforth to be considered advisory,
rather than mandatory. Booker stated that its holding was to be applied to all cases
pending on direct review. Id. at 769. Rorrer was, of course, sentenced pursuant to the
Guidelines, which the district court considered mandatory, and his case is now
pending on direct review. In accordance with our precedent, the error of sentencing
Rorrer as if the Guidelines were mandatory is plain and prejudice is presumed. United
States v. Barnett, 398 F.3d 516, 525-29 (6th Cir.), cert. dismissed, 126 S. Ct. 33

                                         -3-
(2005). The government has not rebutted the presumption of prejudice. Sentencing
under the pre-Booker rules seriously affects the fairness, integrity and public
reputation of judicial proceedings. Id. at 529-30. Accordingly, we must remand for
resentencing in accord with Booker.

         Despite the fact that we must remand, in the interests of judicial economy, we
will address the questions Rorrer raises under the Guidelines, since the district court
is still obliged to consider the recommended Guidelines sentence. See United States
v. McDaniel, 398 F.3d 540, 551 (6th Cir. 2005). Rorrer contends that the district
court erred in resentencing him according to the version of the Guidelines in effect at
the time of his original sentencing; in failing to grant him a three-level decrease under
U.S.S.G. § 2X1.1(b)(2) (2000); and in refusing to depart downward.

       First, Rorrer argues in a pro se brief that the relevant Guidelines sentence
should be determined by the version of the Sentencing Guidelines in effect at the time
of resentencing, rather than the 2000 version of the Sentencing Guidelines used at his
original sentencing on January 11, 2001, and that the district court erred in
resentencing him in accordance with the earlier version. Determining the version of
the guidelines to apply is a question of law that we review de novo. United States v.
Lacefield, No. 03-6481, 2005 WL 1869668, at *5 (6th Cir. Aug. 4, 2005)
(unpublished); see also United States v. Campbell, 309 F.3d 928, 930 (6th Cir. 2002)
(questions regarding application of Guidelines reviewed de novo). Rorrer was
originally sentenced under U.S.S.G. § 2S1.1 (2000). As of November 1, 2001, the
money-laundering guidelines were restructured, and § 2S1.1 was replaced by a new
version, which substituted a new scheme for determining offense level. U.S.S.G.
Manual, app. C, vol. II, amendment 634. Rorrer's argument that he should be
sentenced under Amendment 634 is contrary to the law of the case, for in our first
decision we rejected Rorrer's argument that Amendment 634 should be applied to his
case. We held: "We decline to apply this amendment, and, for purposes of judicial
economy, the district court should not consider the amendment on remand."

                                          -4-
Robertson, 67 Fed. Appx. at 273. The district court applied the 2000 version of the
Guidelines in accordance with our mandate. Moreover, even if this issue had not been
specifically addressed in our mandate, the rule in this circuit is that upon remand for
resentencing, the court should apply the version of the guidelines that properly
governed the original sentencing. United States v. Orlando, 363 F.3d 596, 603 (6th
Cir. 2004) (citing 18 U.S.C.A. § 3742(g), as amended by the PROTECT Act, Pub. L.
No. 108-21, 117 Stat. 650, 671 (2003)).

       Second, Rorrer argues that he should have been given a three-level decrease in
accordance with U.S.S.G. § 2X1.1(b)(2) (2000), which governs the computation of
offense level for conspiracy offenses. The Guideline instructs that the offense level
for solicitation, attempt or conspiracy is to be that for the substantive offense, with
specified adjustments. In particular, for conspiracy offenses, the base offense level
should be decreased by three levels

      unless the defendant or a co-conspirator completed all the acts the
      conspirators believed necessary on their part for the successful
      completion of the substantive offense or the circumstances demonstrate
      that the conspirators were about to complete all such acts but for
      apprehension or interruption by some similar event beyond their control.

U.S.S.G. § 2X1.1(b)(2). The underlying substantive offense in Rorrer's case was
concealment money laundering, 18 U.S.C. § 1956(a)(1)(B)(i), which has three
elements: (1) use of funds that are proceeds of unlawful activity; (2) knowledge that
the funds are proceeds of unlawful activity; and (3) a financial transaction that was
conducted or attempted with knowledge that the transaction had been designed, in
whole or in part, to conceal or disguise the nature, location, source, ownership, or
control of the funds. Robertson, 67 Fed. Appx. at 269; United States v. Moss, 9 F.3d
543, 551 (6th Cir. 1993). Rorrer was convicted of arranging a loan in order to make
it look as if the funds to be repaid were payment for remodeling work instead of the
return of loaned funds. The conspirators knew that the money lent was drug money


                                         -5-
and that the purpose of the loan was to disguise the source of the money. The fact that
the loan was not repaid does not negate the transaction. Furthermore, as the district
court pointed out, the borrower's failure to repay the loan was outside the control of
the conspirators and therefore does not entitle Rorrer to the § 2X1.1(b)(2) reduction.



        Finally, Rorrer argues that the district court erred in refusing to depart from the
Guidelines range. We review for abuse of discretion the district court's determination
of whether it had authority to depart. United States v. Coleman, 188 F.3d 354, 357
(6th Cir. 1999). The district court's decision not to depart is unreviewable unless the
record reflects that the district judge was unaware of or did not understand his or her
discretion to depart. United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002);
United States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005) ("[W]e hold that the
standard from Stewart has survived Booker."). A district judge has no obligation to
state that he or she understands the existence and extent of discretion to depart. Id. at
330. There is a strong presumption that a judge's refusal to depart was based on an
exercise of discretion. See United States v. Solorio, 337 F.3d 580, 603 (6th Cir.), cert.
denied, 540 U.S. 1063 (2003).

       The district court considered Rorrer's argument that his case was comparable
to United States v. Reed, 264 F.3d 640 (6th Cir. 2001), but found it unconvincing. In
Reed, we affirmed a downward departure on the ground that the defendant's conduct
was incidental to the drug-trafficking conspiracy it was supposed to promote. 264
F.3d at 650-52. Whereas Reed involved a charge of money laundering to promote
criminal activity, id. at 650, Rorrer was convicted of concealment money laundering.
The district court found that this distinguished Rorrer's case from Reed and concluded
that Rorrer's crime did not warrant a departure from the Guidelines range. The district
court's decision on this proposed ground for departure was thus an unreviewable
exercise of discretion.



                                           -6-
       The district court also considered the argument about the conditions of
confinement–principally the lack of educational opportunities–and declined to depart.
The court stated, "[N]umber one, a complaint about the circumstances of your
incarceration, as you are well aware, this is not the appropriate legal venue to make
that." Rorrer argues that this amounts to refusal to consider the proposed ground for
departure. From our review of the record, it appears far more likely that the district
court concluded that Rorrer's evidence of post-conviction conditions was not extreme
enough to warrant a departure and therefore exercised its discretion not to depart. Cf.
United States v. Carty, 264 F.3d 191, 193, 196-97 (2d Cir. 2001) (per curiam)
(remanding for consideration of departure for harsh conditions of pre-sentence
confinement where defendant held in four-by eight-foot cell with three or four other
inmates and subjected to other barbaric conditions). Rorrer has failed to establish that
the district court believed it lacked discretion to depart. However, it is futile for us to
belabor this point, since the case must be remanded for resentencing in any event, and
the district court can resolve any possible ambiguity upon resentencing.

       We remand for resentencing in accordance with United States v. Booker, 125
S. Ct. 738 (2005).




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