USCA11 Case: 21-10166 Date Filed: 11/12/2021 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10166
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELKYS TABARES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20036-JEM-1
____________________
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2 Opinion of the Court 21-10166
Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Nelkys Tabares appeals her 24-month
sentence for conspiracy to commit money laundering, in violation
of
18 U.S.C. § 1956(h). On appeal, Tabares argues that the district
court erred in (1) denying her request for a minor-role reduction
under U.S.S.G. § 3B1.2; and (2) applying the “business of launder-
ing funds” enhancement under U.S.S.G. § 2S1.1(b)(2)(C). After re-
view, we affirm.
I. BACKGROUND
A. Offense Conduct
Beginning in 2011, Mildrey De La Caridad Gonzalez and
Milka Yarlin Alfaro organized a conspiracy to defraud Medicare
through the submission of false claims from two home health agen-
cies, Golden Home Health Care, Inc. (“Golden”) and Homestead
Health Care LLC (“Homestead”). Gonzalez and Alfaro recruited
Juana Mirta Quintero. In turn, Quintero recruited Tabares, the de-
fendant here, to launder proceeds obtained through the false
claims.
In October 2013, the defendant Tabares joined the conspir-
acy when Quintero started to bring Tabares checks, issued by
Golden and Homestead, for Tabares to cash. Tabares cashed the
checks, kept ten percent of the money, and returned the remainder
to Quintero. Tabares knew that the checks represented the
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21-10166 Opinion of the Court 3
proceeds from health care fraud that was carried out by her co-con-
spirators. Tabares believed that cashing the checks allowed her co-
conspirators to evade taxes.
After Tabares cashed the first ten checks through her per-
sonal bank account, Quintero advised Tabares to open a shell com-
pany “to prevent problems with the Internal Revenue Service
(IRS).” Quintero told Tabares that the shell company “had to be
open less than a year to avoid paying taxes.” 1 Tabares met with
Quintero’s contact, who provided incorporation paperwork for a
corporation named Standing 24/7 Inc. (the “shell company”). On
April 30, 2014, Tabares filed the incorporation documents, listing
herself as the incorporator and registered agent.
With the help of a bank employee who Quintero recom-
mended, Tabares opened a bank account for the shell company.
After opening the account, Tabares cashed checks, issued by
Golden and Homestead, through the shell company’s bank ac-
count.
Some of the checks that Tabares cashed were intentionally
disguised to represent payments for services rendered. But the
shell company never provided “any legitimate services to Golden
or Homestead,” and it did not pay any state sales and use taxes.
1Tabares was later served with a tax levy and, through a payment plan, paid
$22,027 to the IRS for the total deposits.
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4 Opinion of the Court 21-10166
The underlying health care fraud scheme lasted from 2011
to 2016, totaling nearly $23 million. Over the course of Tabares’s
participation from October 2013 to January 2015, Tabares cashed
checks totaling $169,462. She kept approximately $16,946 for her-
self and returned the remainder to Quintero.
After being charged in a multi-count indictment, Tabares
pled guilty in May 2020 to one count of conspiracy to commit
money laundering, in violation of
18 U.S.C. § 1956(h).
B. Presentence Investigation Report
A presentence investigation report (“PSI”) calculated a total
offense level of 19, using: (1) a base offense level of 8 under U.S.S.G.
§ 2S1.1(a)(2) for conspiracy to commit money laundering; (2) a ten-
level increase under § 2B1.1(b)(1)(F) because the value of laun-
dered funds was between $150,000 and $250,000; (3) a four-level
increase under § 2S1.1(b)(2)(C) because Tabares was “in the busi-
ness of laundering funds”; and (4) a three-level decrease under
§ 3E1.1(a)–(b) for acceptance of responsibility. The PSI assigned
Tabares a criminal history category of I, yielding an advisory guide-
lines range of 30 to 37 months.
Tabares objected to the PSI. First, she objected to the Pro-
bation Officer’s failure to recommend that she receive a two-level
minor-role reduction pursuant to § 3B1.2(b). Tabares argued that
she “was a miniscule pawn in this elaborate conspiracy” and only
acted at the direction of others.
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21-10166 Opinion of the Court 5
In response, the Probation Officer explained that the minor-
role reduction was not warranted because: (1) Tabares told law en-
forcement that Quintero gave her the checks to cash so Quintero
and other co-conspirators could evade taxes; (2) the shell company
was created with the specific intention “to prevent problems with
the [IRS]”; (3) the shell company’s bank account operated “to dis-
guise the fraud”; and (4) Tabares was “only being held accountable
for the loss amount related to her conduct.”
Tabares also objected to the application of the four-level in-
crease for being “in the business of laundering funds” under
§ 2S1.1(b)(2)(C). Tabares claimed that she lost over $5,000 as a re-
sult of her participation in the conspiracy due to a tax levy imposed
by the IRS, and she was employed as a housekeeper and sales asso-
ciate over the course of the conspiracy.
In response, the Probation Officer emphasized that Applica-
tion Note 4 to § 2S1.1 guides courts in applying the “business of
laundering funds” increase. Tabares’s conduct satisfied three of the
relevant factors because she (1) regularly engaged in laundering
funds; (2) engaged in laundering funds during an extended period
of time; and (3) generated a substantial amount of revenue in re-
turn for laundering funds. The Probation Officer did not consider
the IRS tax levy to be relevant to the “substantial amount of reve-
nue” analysis.
The government filed a response contending Tabares was
not entitled to a minor-role reduction and the court should apply
the “in the business of laundering funds” increase. The
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6 Opinion of the Court 21-10166
government also filed an objection and requested that the district
court apply an additional two-level increase for “sophisticated laun-
dering” under § 2S1.1(b)(3).
C. Sentencing Hearing
At the sentencing hearing, the district court overruled
Tabares’s objections and did not grant the government’s request
for yet another two-level increase for “sophisticated laundering.”
The district court adopted the PSI’s advisory guidelines range of 30
to 37 months of imprisonment, but sentenced Tabares to 24
months of imprisonment. The district court explained that it var-
ied downward “based on the relative guilt of the various” co-con-
spirators.
II. MINOR-ROLE REDUCTION
A. Minor-Role Reduction Guideline and Case Law
Section 3B1.2(b) provides that a defendant is entitled to a
two-level offense-level decrease if she was a “minor participant in
any criminal activity.” U.S.S.G. § 3B1.2(b). 2 A defendant is a “mi-
nor participant” if she was “less culpable than most other partici-
pants in the criminal activity,” but her role “could not be described
2 “‘We review a district court’s denial of a role reduction for clear error.’”
United States v. Cabezas-Montano,
949 F.3d 567, 605 n.38 (11th Cir. 2020)
(quoting United States v. Valois,
915 F.3d 717, 730 n.8 (11th Cir. 2019)). “This
Court will not disturb a district court’s findings regarding the denial of a role
reduction unless we are left with a definite and firm conviction that a mistake
has been made.”
Id. (quotation marks omitted).
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21-10166 Opinion of the Court 7
as minimal.”
Id. § 3B1.2, cmt. n.5. In determining whether a de-
fendant is entitled to a minor-role reduction, the district court must
consider the totality of the circumstances of the particular case. Id.
§ 3B1.2, cmt. n.3(C). The defendant bears the burden of establish-
ing, by a preponderance of the evidence, her minor role in the of-
fense. United States v. Cabezas-Montano,
949 F.3d 567, 605 n.38
(11th Cir. 2020).
In United States v. De Varon, this Court established two
principles to guide the determination of whether a defendant
played a minor role in the criminal scheme: (1) “the defendant’s
role in the relevant conduct for which she has been held accounta-
ble at sentencing,” and (2) “her role as compared to that of other
participants in her relevant conduct.” United States v. De Varon,
175 F.3d 930, 940 (11th Cir. 1999) (en banc). “In making the ulti-
mate finding as to role in the offense, the district court should look
to each of these principles and measure the discernable facts against
them.”
Id. at 945.
The commentary to § 3B1.2 provides a non-exhaustive list
of factors “[s]imilar to the fact-intensive, multi-faceted approach
this Court established in De Varon.” United States v. Presendieu,
880 F.3d 1228, 1249 (11th Cir. 2018). These factors include: (1) “the
degree to which the defendant understood the scope and structure
of the criminal activity”; (2) “the degree to which the defendant
participated in planning or organizing the criminal activity”;
(3) “the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority”;
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8 Opinion of the Court 21-10166
(4) “the nature and extent of the defendant’s participation in the
commission of the criminal activity”; and (5) “the degree to which
the defendant stood to benefit from the criminal activity.” U.S.S.G.
§ 3B1.2, cmt. n.3(C)(i)–(v).
“The court must consider all of [the § 3B1.2] factors to the
extent applicable, and it commits legal error in making a minor role
decision based solely on one factor.” United States v. Valois,
915
F.3d 717, 732 (11th Cir. 2019) (quotation marks omitted).
B. Analysis of Tabares’s Role
Here, based on the totality of the circumstances, the district
court did not clearly err in denying Tabares’s request for a minor-
role reduction. De Varon’s first principle asks whether the defend-
ant “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
shows that Tabares understood the scope of the scheme, was im-
portant to the scheme, and was held accountable for that conduct
alone. See U.S.S.G. § 3B1.2, cmt. n.3(C).
When Tabares cashed the checks, some of which were in-
tentionally disguised as representing payments for services ren-
dered, she knew that the proceeds were from a broader scheme to
defraud Medicare. See id. § 3B1.2, cmt. n.3(C)(i). Further, she be-
lieved that the checks helped her co-conspirators evade taxes.
Tabares participated in various aspects of the laundering by creat-
ing the shell company, Standing 24/7, and an accompanying bank
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21-10166 Opinion of the Court 9
account to cash the checks. See id. § 3B1.2, cmt. n.3(C)(iv). Despite
knowing that her actions were aiding the health care fraud, Tabares
laundered $169,462 over the course of 15 months. She benefitted
from the criminal activity because she kept ten percent of every
cashed check, generating $16,946 for herself. See id. § 3B1.2, cmt.
n.3(C)(v).
Second, Tabares’s role in the laundering was not minor
when compared to other participants in the conduct for which she
was held accountable. Tabares principally argues that she was less
culpable than Quintero or the organizers of the Medicare fraud
conspiracy. However, the relevant inquiry is whether Tabares
played a minor role in laundering the $169,462 for which she was
held accountable. See De Varon,
175 F.3d at 940. While Quintero
gave Tabares direction, the record makes clear that Tabares’s ac-
tions were important to the laundering. Tabares filed the incorpo-
ration documents for the shell company, set up the bank account,
and cashed the checks. Thus, even though Quintero also partici-
pated in laundering the $169,462, it does not follow that Tabares
played a minor role. See United States v. Martin,
803 F.3d 581, 591
(11th Cir. 2015) (“Even 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.”
(quotation marks omitted)).
Based on the totality of the circumstances, the district court
did not clearly err in denying Tabares a minor-role reduction.
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10 Opinion of the Court 21-10166
III. LAUNDERING OF FUNDS
A. Text and Application Note to § 2S1.1(b)(2)(C) Guideline
The sentencing guidelines for a violation of
18 U.S.C.
§ 1956(h) are found in U.S.S.G. § 2S1.1, titled: “Laundering of Mon-
etary Instruments; Engaging in Monetary Transactions in Property
Derived from Unlawful Activity.” Section 2S1.1(a) contains two
separate provisions to calculate a defendant’s base offense level.
Section 2S1.1(a)(1) applies if (1) “the defendant committed the un-
derlying offense,” or would be held accountable for it as relevant
conduct; and (2) “the offense level for that offense can be deter-
mined.” Here, Tabares did not commit the underlying offense of
health care fraud and was not held accountable for it as relevant
conduct.
Rather, the second and applicable provision is § 2S1.1(a)(2).
Section 2S1.1(a)(2) calculates a defendant’s total base offense level
by assigning a base offense level of 8 and then adding the number
of offense levels “corresponding to the value of the laundered
funds” from the table in § 2B1.1. As explained earlier, Tabares’s
base offense level of 8 was increased ten levels under the table in
§ 2B1.1(b)(1)(F) because of the value of her laundered funds.
After calculating that base offense level under § 2S1.1(a),
courts turn to “Specific Offense Characteristics” under § 2S1.1(b). 3
3 Section 2S1.1(b)(1) applies a six-level increase if (1)
“subsection (a)(2) applies”;
and (2) “the defendant knew or believed that any of the laundered funds were
the proceeds of, or were intended to promote (i) an offense involving the
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21-10166 Opinion of the Court 11
Section 2S1.1(b)(2) contains three different offense-level increases,
and courts are instructed to apply the greatest of those three. The
three potential increases are: (1) a one-level increase “[i]f the de-
fendant was convicted under
18 U.S.C. § 1957”; (2) a two-level in-
crease “[i]f the defendant was convicted under
18 U.S.C. § 1956”;
and (3) a four-level increase, “[i]f (i) subsection (a)(2) applies; and
(ii) the defendant was in the business of laundering funds.”
U.S.S.G. § 2S1.1(b)(2)(A)–(C). Tabares was convicted under
18
U.S.C. § 1956(h), and the two-level increase would apply but for
the command to apply the greatest of the three offense-level in-
creases. See
id. § 2S1.1(b)(2). In Tabares’s case, as outlined above,
the district court applied the four-level increase because
§ 2S1.1(a)(2) applies, and Tabares was “in the business of launder-
ing funds.” See id. § 2S1.1(b)(2)(C). On appeal, Tabares challenges
the district court's determination that she was in the business of
laundering funds.
To determine whether a defendant “was in the business of
laundering funds,” courts are instructed by Application Note 4 to
§ 2S1.1(b)(2)(C) to examine the totality of the circumstances.
U.S.S.G. § 2S1.1 cmt. n.4(A). 4 The commentary also contains a
manufacture, importation, or distribution of a controlled substance or a listed
chemical; (ii) a crime of violence; (iii) an offense involving firearms, explo-
sives, national security, or the sexual exploitation of a minor.” Section
2S1.1(b)(1) is inapplicable to Tabares because the laundered funds were not
proceeds from, nor intended to promote, any of the requisite categories.
4 “We review the interpretation and application of the Sentencing Guidelines
de novo, and we review underlying findings of fact for clear error.” United
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12 Opinion of the Court 21-10166
non-exhaustive list of factors “that may indicate the defendant was
in the business of laundering funds for purposes of subsection
(b)(2)(C).” Id. § 2S1.1 cmt. n.4(B). The commentary lists the fol-
lowing: whether the defendant (1) regularly engaged in laundering
funds; (2) laundered funds for an extended period of time; (3) en-
gaged in laundering funds from multiple sources; (4) generated a
substantial amount of revenue in return for laundering funds;
(5) had a prior conviction for certain money laundering related of-
fenses; and (6) made statements during the course of an under-
cover government investigation that the defendant had engaged in
any of the conduct listed in factors (1), (2), (3), or (4). Id. § 2S1.1
cmt. n.4(B)(i)–(vi).
B. Four Factors Apply to Tabares
The first factor examines whether Tabares “regularly en-
gaged in laundering funds.” We have defined regularly as “more
than isolated, casual, or sporadic activity.” See United States v.
Saunders,
318 F.3d 1257, 1265 (11th Cir. 2003) (applying the en-
hancement for being “in the business of receiving and selling stolen
property” under § 2B6.1(b)(2)) (quotation marks omitted). Here,
Tabares’s conduct was not isolated, casual, or sporadic. Tabares
cashed approximately two dozen checks, through both her
States v. Jackson,
997 F.3d 1138, 1140 (11th Cir. 2021). The government bears
the burden of proving, by a preponderance of the evidence, the applicability
of guidelines that enhance a defendant’s offense level. United States v. Plas-
encia,
886 F.3d 1336, 1346 (11th Cir. 2018).
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21-10166 Opinion of the Court 13
personal bank account and the shell company’s bank account. See
U.S.S.G. § 2S1.1 cmt. n.4(B)(i). The first factor supports the four-
level increase.
The second, third, and fourth factors are also satisfied. As to
the second factor, Tabares laundered funds for an extended period
of time—15 months—from October 2013 to January 2015. See
§ 2S1.1 cmt. n.4(B)(ii); see also United States v. Mitchell,
613 F.3d
862, 869 (8th Cir. 2010) (finding that 16 to 18 months was long
enough to be considered an “extended period of time”). As to the
third factor, although Tabares argues that the checks came only
from Quintero and one health care fraud scheme, the checks were
actually issued by and belonged to multiple companies (Golden
and Homestead). Therefore, the funds came from multiple
sources. See U.S.S.G. § 2S1.1 cmt. n.4(B)(iii). As to the fourth fac-
tor, Tabares generated a substantial amount of revenue through
laundering, almost $17,000. Id. § 2S1.1 cmt. n.4(B)(iv).
We recognize that the fifth and sixth factors do not apply to
Tabares. As to the fifth factor, Tabares has no criminal history, let
alone a prior conviction involving money laundering or conspiracy
to commit money laundering. See id. § 2S1.1 cmt. n.4(B)(v). As to
the sixth factor, Tabares did not make any statements about her
conduct during an undercover government investigation. See id.
§ 2S1.1 cmt. n.4(B)(vi).
Nonetheless, four factors weigh in favor of the increase and
based on the totality of the circumstances in this particular case, we
cannot say the district court erred in finding that Tabares was “in
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14 Opinion of the Court 21-10166
the business of laundering funds,” such that the four-level increase
applied. See id. § 2S1.1 cmt. n.4(B)(i)–(vi).
IV. CONCLUSION
For all of these reasons, we affirm Tabares’s 24-month sen-
tence.
AFFIRMED.
