USA v. Jesmina Ramirez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13216
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESMINA RAMIREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20154-JLK-1
____________________
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 1 of 13

-- 1 of 13 --

2 Opinion of the Court 22-13216
Before BRASHER, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Jesmina Ramirez appeals her 63-month sentence for conspir-
acy to commit money laundering and money laundering. First, she
argues that the district court erred by imposing a four-level en-
hancement under U.S.S.G. § 2S1.1(b)(2)(C) when it concluded she
was in the business of laundering money and in doing so relied on
the commentary to the guideline. Second, she argues that the
court clearly erred by declining to apply a two-level reduction un-
der U.S.S.G. § 3B1.2(b) when it concluded that she did not play a
minor role in the offense. Third, she argues that the court plainly
erred when it failed to personally address her before imposing its
sentence. Finally, she argues that, as a first-time offender, her
63-month, within-guidelines sentence is substantively unreasona-
ble.
I.
Ordinarily, “[w]e review the interpretation of the Sentenc-
ing Guidelines de novo and any underlying factual findings for clear
error.” United States v. Gayden, 977 F.3d 1146, 1153 (11th Cir. 2020)
(quotation marks omitted). However, arguments not raised below
are reviewed for plain error. United States v. Sanchez, 940 F.3d 526,
537 (11th Cir. 2019). Under plain error review, we will reverse a
district court’s decision only if “there is: (1) error, (2) that is plain,
and (3) that affects substantial rights, and if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 2 of 13

-- 2 of 13 --

22-13216 Opinion of the Court 3
proceedings.” United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir.
2017) (quotation marks omitted). “[W]here the explicit language
of a statute or rule does not specifically resolve an issue, there can
be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Chau, 426
F.3d 1318, 1322 (11th Cir. 2005) (quotation marks omitted).
To preserve an issue for appeal, a defendant “must raise an
objection that is sufficient to apprise the trial court and the oppos-
ing party of the particular grounds upon which appellate relief will
later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th
Cir. 2007) (quotation marks omitted). However, “once a party has
preserved an issue, it ‘may make any argument in support of that
claim; parties are not limited to the precise arguments they made
below.’” United States v. Brown, 934 F.3d 1278, 1306-07 (11th Cir.
2019) (quoting Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).
The Sentencing Guideline for an 18 U.S.C. § 1956(h) viola-
tion is found in U.S.S.G. § 2S1.1. Section 2S1.1(a) contains two pro-
visions to calculate a defendant’s base offense level. In relevant
part, § 2S1.1(a)(2) calculates a defendant’s total base offense level
by assigning a base offense level of eight and then adding the num-
ber of offense levels “corresponding to the value of the laundered
funds” from the table in § 2B1.1. After calculating a defendant’s
base offense level under § 2S1.1(a), courts turn to “Specific Offense
Characteristics” under § 2S1.1(b). In relevant part, a four-level in-
crease applies “[i]f (i) subsection (a)(2) applies; and (ii) the
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 3 of 13

-- 3 of 13 --

4 Opinion of the Court 22-13216
defendant was in the business of laundering funds.” U.S.S.G.
§ 2S1.1(b)(2)(C).
To determine whether a defendant “was in the business of
laundering funds,” the Commentary to § 2S1.1(b)(2)(C) instructs
courts to examine the “totality of the circumstances” and consider
a “non-exhaustive list” of factors, including whether: (i) the defend-
ant regularly engaged in laundering funds; (ii) the defendant en-
gaged in laundering funds for an extended period of time; (iii) the
defendant engaged in laundering funds from multiple sources;
(iv) the defendant generated a substantial amount of revenue in re-
turn for laundering funds; (v) the defendant had one or more pre-
vious convictions for money laundering-related offenses; and
(vi) during the course of an undercover investigation, the defend-
ant made statements that she engaged in any of the conduct indi-
cating that she was in the business of laundering money. U.S.S.G.
§ 2S1.1, comment. (n.4).
Although we have not addressed what it means to be “in the
business” of laundering funds, we have, in addressing a similar
guideline issue, determined that “in the business” requires “more
than isolated, casual, or sporadic activity.” United States v. Saunders,
318 F.3d 1257, 1265 (11th Cir. 2003) (determining the meaning of
“in the business” of receiving and selling stolen property); see also
Amend. 634, U.S.S.G. Supp. to App’x C, Reason for Amendment
(explaining the reason for the four-level “in the business of launder-
ing funds” enhancement and comparing defendants who “rou-
tinely engage in laundering funds on behalf of others” to a
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 4 of 13

-- 4 of 13 --

22-13216 Opinion of the Court 5
professional “fence,” as both “warrant substantial additional pun-
ishment because they encourage the commission of additional
criminal conduct”).
A sentencing court may consider the Sentencing Commis-
sion’s interpretation of a Guideline as contained in the Commen-
tary to the extent that a Guideline is “genuinely ambiguous.”
United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).
Here, even assuming that this issue of whether the district
court erred in relying on the Guidelines Commentary is preserved,
because the term, “in the business,” can bear multiple meanings, it
is genuinely ambiguous, so the district court did not err when it
considered the Commentary’s list of non-exhaustive factors.
The district court did not clearly err in imposing a four-level
enhancement to Ramirez’s sentence when it concluded that she
was in the business of laundering funds. First, considering the non-
exhaustive factors in the Commentary to § 2S1.1(b)(2)(C),
Ramirez’s conduct was not isolated, casual, or sporadic. Saunders,
318 F.3d at 1265. She cashed 134 checks. Second, she cashed those
134 checks over a period of more than 2 years, up to several a week.
Third, throughout those two years, although she only received
checks from Chang and Gonzalez, the checks were drawn on the
bank accounts of multiple sham durable medical equipment
(“DME”) companies. Fourth, from those multiple sham DME
companies, she generated $34,302.00, which is a substantial
amount, especially when compared to her legal revenue. Although
she had no criminal history and did not make any statements about
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 5 of 13

-- 5 of 13 --

6 Opinion of the Court 22-13216
her conduct during a government investigation (the fifth and sixth
factors), given the other factors, and based on the totality of the
circumstances, the district court did not err in finding that Ramirez
was “in the business of laundering funds,” such that a four-level in-
crease applied. See U.S.S.G. § 2S1.1 comment. n.4(B)(i) (vi). Ac-
cordingly, we affirm as to this issue.
II.
We review the district court’s determination of a defend-
ant’s role for clear error. United States v. De Varon, 175 F.3d 930, 934
(11th Cir. 1999) (en banc). The sentencing court’s factual findings
“may be based on evidence heard during trial . . . undisputed state-
ments in the presentence report, or evidence presented at the sen-
tencing hearing.” Saunders, 318 F.3d at 1271 n.22 (quotation marks
omitted). “The district court’s choice between two permissible
views of the evidence as to the defendant’s role in the offense will
rarely constitute clear error [s]o long as the basis of the trial court’s
decision is supported by the record and does not involve a misap-
plication of a rule of law.” United States v. Cruickshank, 837 F.3d
1182, 1192 (11th Cir. 2016) (quotation marks omitted, alteration in
original). “The defendant bears the burden of establishing his mi-
nor role in the offense by a preponderance of the evidence.” Id.
We, however, may affirm for any reason supported by the record,
even if not relied upon by the district court. United States v. Chit-
wood, 676 F.3d 971, 975 (11th Cir. 2012).
The Sentencing Guidelines provide for a two-level reduction
if a defendant was a minor participant in the criminal activity, a
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 6 of 13

-- 6 of 13 --

22-13216 Opinion of the Court 7
four-level reduction if the defendant was a minimal participant, and
a three-level reduction for cases falling between those two roles.
U.S.S.G. § 3B1.2. The reductions apply to the defendants whose
role in committing an offense makes them “substantially less cul-
pable than the average participant in the criminal activity.” Id.,
comment. (n.3(A)).
A minimal participant “plays a minimal role in the criminal
activity” and is “plainly among the least culpable of those involved
in the conduct of a group.” Id., comment. (n.4). “[T]he defendant’s
lack of knowledge or understanding of the scope and structure of
the enterprise and of the activities of others is indicative of a role as
minimal participant.” Id. A minor participant is one “who is less
culpable than most other participants in the criminal activity, but
whose role could not be described as minimal.” Id., comment.
(n.5). The determination of whether to apply a mitigating-role ad-
justment “is heavily dependent upon the facts of the particular
case.” Id., comment. (n.3(C)).
The Commentary to the Sentencing Guidelines provide the
following list of “non-exhaustive” factors for a court to consider in
determining whether to apply a role reduction:
(i) the degree to which the defendant understood the
scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 7 of 13

-- 7 of 13 --

8 Opinion of the Court 22-13216
(iii) the degree to which the defendant exercised deci-
sion-making authority or influenced the exercise of
decision-making authority;
(iv) the nature and extent of the defendant’s partici-
pation in the commission of the criminal activity, in-
cluding the acts the defendant performed and the re-
sponsibility and discretion the defendant had in per-
forming those acts;
(v) the degree to which the defendant stood to benefit
from the criminal activity.
Id.
Two principles should guide a district court’s consideration
of a defendant’s role: (1) the defendant’s role in the relevant con-
duct for which she has been held accountable at sentencing, and
(2) her role as compared to that of other participants in her relevant
conduct. De Varon, 175 F.3d at 940.
As to the first principle, “the district court must assess
whether the defendant is a minor or minimal participant in relation
to the relevant conduct attributed to the defendant in calculating [her]
base offense level.” Id. at 941 (emphasis added). Thus, a defendant
is not entitled to a mitigating role adjustment when she can point
to a broader criminal scheme that she was a minor participant in
but was not held accountable for. Id. “[S]uch an adjustment only
makes sense analytically if the defendant can establish that [her]
role was minor as compared to the relevant conduct attributed to
her.” Id. (emphasis omitted).
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 8 of 13

-- 8 of 13 --

22-13216 Opinion of the Court 9
As to the second principle, the district court may also meas-
ure the defendant’s role against the other discernable participants
in the relevant conduct. Id. at 944-45. The district court need not
compare a defendant’s conduct with that of her codefendants be-
cause, in many cases, measuring the defendant’s role against the
relevant conduct for which she was held accountable at sentencing
will be dispositive. United States v. Bernal-Benitez, 594 F.3d 1303,
1321 n.25 (11th Cir. 2010). “The district court should look to other
participants only to the extent that they are identifiable or discern-
ible from the evidence.” De Varon, 175 F.3d at 944. It is also only
participants who engaged in the relevant conduct attributed to the
defendant who are relevant to any comparisons. United States v.
Martin, 803 F.3d 581, 591 (11th Cir. 2015). Additionally, “[e]ven if
a defendant played a lesser role than the other participants, that fact
does not entitle [her] to a role reduction since it is possible that
none are minor or minimal participants.” Id. (quotation marks
omitted).
Here, the district court did not clearly err in denying
Ramirez’s request for a minor role reduction. De Varon’s first prin-
ciple asks whether a defendant “played a relatively minor role in
the conduct for which she has already been held accountable—not
a minor role in any larger criminal conspiracy.” De Varon, 175 F.3d
at 944. The record reflects that Ramirez understood the scope of
the scheme, was important to the scheme, and was held accounta-
ble for that conduct alone. See U.S.S.G. § 3B1.2, comment. n.3(C).
When she cashed checks, she knew that the proceeds were from a
broader scheme to defraud Medicare, Medicaid, and other private
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 9 of 13

-- 9 of 13 --

10 Opinion of the Court 22-13216
health insurance companies. See U.S.S.G. § 3B1.2, comment.
n.3(c)(i). Her use of burner phones, coded language, and cashing
of checks for services that she did not perform bolsters this infer-
ence. Despite knowing that her actions were aiding the health care
fraud, Ramirez laundered $786,992.52 over the course of more
than two years and sought to increase her participation. She ben-
efitted from the criminal activity, generating $34,302 for herself.
See U.S.S.G. § 3B1.2, comment. n.3(C)(v).
Her role was also not minor when compared to other par-
ticipants in the conduct for which she was held accountable. She
argues that she was less culpable than Garces, Chang, and Gonza-
lez, larger players in the health care fraud conspiracy. However,
the relevant inquiry is whether Ramirez played a minor role in
laundering the $786,992.52 for which she was held accountable. See
De Varon, 175 F.3d at 940. Although Chang and Gonzalez gave
Ramirez direction, the record reflects that her actions as a check
casher were important to the laundering. Even though Garces,
Chang, and Gonzalez also participated in laundering the
$786,992.52, it does not follow that Ramirez played a minor role,
because it is possible that none of the players were minor or mini-
mal participants. See Martin, 803 F.3d at 591. We reject Ramirez’s
argument that the district court focused exclusively on whether her
conduct was essential to the success. For example, the district court
emphasized: “134 transactions that she was involved in over two
years is extremely—is an extreme involvement.” Dist. Ct. Doc. 176
at 13. Based on the record before the district court, the court did
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 10 of 13

-- 10 of 13 --

22-13216 Opinion of the Court 11
not clearly err in denying Ramirez a minor role reduction. Accord-
ingly, we affirm as to this issue.
III.
Where a defendant does not object at sentencing to the dis-
trict court’s denial of her right to allocution, we review for plain
error. Doyle, 857 F.3d at 1118. Concessions of law are not binding
on this Court. United States v. Colston, 4 F.4th 1179, 1187 (11th Cir.
2021).
Federal Rule of Criminal Procedure 32 requires that a court,
before imposing a sentence, address the defendant personally to
permit her to speak or present any information to mitigate the sen-
tence. Fed. R. Crim. P. 32(i)(4)(A)(ii). A court’s failure to address
the defendant about whether she wished to make a statement is an
error that is plain. United States v. George, 872 F.3d 1197, 1207 (11th
Cir. 2017). Generally, we presume that a court’s failure to allow a
defendant to allocute affects her substantial rights if the defendant’s
sentence could somehow be reduced, unlike, for example, a de-
fendant who received a mandatory minimum sentence. Id. This is
because a defendant’s allocution could persuade the court to vary
downward, even if her sentence is at the bottom of the Guidelines
range. Doyle, 857 F.3d at 1120-21. We have noted that, even the
most persuasive counsel may not “speak for a defendant as the de-
fendant might, with halting eloquence, speak for [herself].” George,
872 F.3d at 1208 (quotation marks omitted). A district court’s de-
nial of a defendant’s right to allocute affects the fairness, integrity,
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 11 of 13

-- 11 of 13 --

12 Opinion of the Court 22-13216
and public reputation of judicial proceedings. United States v. Perez,
661 F.3d 568, 586 (11th Cir. 2011).
Accordingly, when a district court fails to give a defendant a
chance to allocute before imposing a sentence, we generally vacate
the sentence and remand so the district court can give the defend-
ant a chance to speak. George, 872 F.3d at 1209. A defendant, how-
ever, is not entitled to a new sentencing hearing on remand. Id.
Instead, she is put in “the position [s]he was in on the day of h[er]
original sentence hearing” and is given the opportunity to allocute
that she was originally denied. Id. (quotation marks omitted). She
may not reassert or reargue any of her objections to the presen-
tence investigation report, file new objections, or file a new sen-
tencing memorandum. Doyle, 857 F.3d at 1121. The defendant
may, however, argue for a particular sentence in light of the 18
U.S.C. § 3553(a) factors, the record, and any allocution. See id. She
may also present evidence of her post-sentencing rehabilitation,
and such evidence may, in the district court’s discretion, support a
variance from her advisory Guidelines range. Id.
Additionally, upon a remand to the district court for resen-
tencing, the district court shall apply the Sentencing Guidelines
that were in effect on the date of the defendants’ pre-appeal sen-
tencing, along with any guideline amendments in effect on such
date. 18 U.S.C. § 3742(g); see also U.S.S.G.§ 1B1.11(a), (b)(2).
As the government concedes, the district court erred in not
personally addressing Ramirez, and remand is needed to allow her
an opportunity to allocute. Further, because the district court will
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 12 of 13

-- 12 of 13 --

22-13216 Opinion of the Court 13
have an opportunity to reconsider the 18 U.S.C. § 3553(a) factors
after allowing Ramirez an opportunity to be heard, we do not
reach Ramirez’s remaining argument regarding the substantive
reasonableness of her sentence. Accordingly, we vacate as to this
issue and remand for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
USCA11 Case: 22-13216 Document: 36-1 Date Filed: 03/13/2024 Page: 13 of 13

-- 13 of 13 --