[DO NOT PUBLISH]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

____________________

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2 Opinion of the Court 22-13216

Before BRASHER, ABUDU, and ANDERSON, Circuit Judges.

PER CURIAM:

Jesmina Ramirez appeals her 63-month sentence for conspiracy to commit money laundering and money laundering. First, she 

argues that the district court erred by imposing a four-level enhancement 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 under 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 unreasonable. 

I.

Ordinarily, “[w]e review the interpretation of the Sentencing 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 

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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 opposing 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) violation is found in U.S.S.G. § 2S1.1. Section 2S1.1(a) contains two provisions 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 number 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 increase applies “[i]f (i) subsection (a)(2) applies; and (ii) the 

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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 defendant regularly engaged in laundering funds; (ii) the defendant engaged 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 return for laundering funds; (v) the defendant had one or more previous convictions for money laundering-related offenses; and 

(vi) during the course of an undercover investigation, the defendant made statements that she engaged in any of the conduct indicating 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 laundering funds” enhancement and comparing defendants who “routinely engage in laundering funds on behalf of others” to a 

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professional “fence,” as both “warrant substantial additional punishment because they encourage the commission of additional 

criminal conduct”).

A sentencing court may consider the Sentencing Commission’s interpretation of a Guideline as contained in the Commentary 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 nonexhaustive 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 

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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 increase applied. See U.S.S.G. § 2S1.1 comment. n.4(B)(i) (vi). Accordingly, we affirm as to this issue.

II.

We review the district court’s determination of a defendant’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 statements in the presentence report, or evidence presented at the sentencing 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 misapplication 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 minor 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. Chitwood, 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 

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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 culpable 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 adjustment “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;

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(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of 

decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing 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 conduct 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). 

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As to the second principle, the district court may also measure 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 because, 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 discernible 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 principle 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 accountable 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 

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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 inference. 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 benefitted 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 participants in the conduct for which she was held accountable. She 

argues that she was less culpable than Garces, Chang, and Gonzalez, 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 minimal 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 

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not clearly err in denying Ramirez a minor role reduction. Accordingly, we affirm as to this issue.

III.

Where a defendant does not object at sentencing to the district 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 sentence. 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 defendant 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 defendant might, with halting eloquence, speak for [herself].” George, 

872 F.3d at 1208 (quotation marks omitted). A district court’s denial of a defendant’s right to allocute affects the fairness, integrity, 

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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 defendant a chance to speak. George, 872 F.3d at 1209. A defendant, however, 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 presentence investigation report, file new objections, or file a new sentencing 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 resentencing, the district court shall apply the Sentencing Guidelines 

that were in effect on the date of the defendants’ pre-appeal sentencing, 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 

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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.

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