                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               June 30, 2006
                              No. 05-15353                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 02-00205-CR-CAP-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus


ROSALIND JOHNSON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (June 30, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Rosalind Johnson appeals her conviction and 48-month sentence for 20
counts of making fraudulent and false statements on a tax return, in violation of 26

U.S.C. § 7206(2).

      On appeal, Johnson first argues that the district court erred by overruling her

objections to the admission of Federal Rule of Evidence 404(b) evidence. The

objections concerned evidence about uncharged conduct and allegedly false or

altered documents that Johnson presented at the audits of the fraudulent returns.

She also argues that the district court should have granted her second motion for

mistrial when the government’s case agent testified to a matter that the government

had conceded was inadmissible.

      We review the district court’s rulings on the admission of evidence for an

abuse of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.

2005), cert. denied, 126 S. Ct. 1331, 164 L. Ed. 2d 47 (2006). Rule 404 “is a rule

of inclusion, and . . . accordingly [Rule] 404(b) evidence, like other relevant

evidence, should not be excluded when it is central to the prosecution’s case.”

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (internal citations

and quotations omitted).

      In order to be admissible: (1) Rule 404(b) evidence must be relevant to an

issue other than the defendant’s character; (2) the prior act must be proved

sufficiently to permit a jury determination that the defendant committed the act;



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and (3) the evidence’s probative value cannot be substantially outweighed by its

undue prejudice, and it must satisfy Rule 403. Id.

      The parties’ main dispute concerns the third prong. We have stated that,

“the probative value of the evidence must not be substantially outweighed by

unfair prejudice. . . . [T]his determination lies within the sound discretion of the

district judge and calls for a common sense assessment of all the circumstances

surrounding the extrinsic offense, including prosecutorial need, overall similarity

between the extrinsic act and the charged offense, as well as temporal remoteness.”

Id. at 1282 (internal citations and quotations omitted) (emphasis in original). The

district court can also give a limiting instruction to reduce the risk of undue

prejudice. United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (per

curiam).

      First, the district court did not abuse its discretion by admitting evidence

related to uncharged tax returns, an undercover investigation, and Johnson’s

submission of altered documents in the course of the Internal Revenue Service

(“IRS”) audit because the evidence was relevant to show intent, knowledge, and

absence of mistake, and potential undue prejudice did not substantially outweigh

the evidence’s probative value.

      Additionally, the district court’s denial of Johnson’s motion for mistrial was



                                           3
not an abuse of discretion. The government agreed not to put in evidence the

results of the audit of the 1300 tax returns, including tax deficiency of $2.6 million.

Therefore, the case agent’s testimony that “there were 1300 people, all with the

same allegation,” did not violate that agreement, and the jury never heard any

evidence regarding the IRS’s findings in that audit.

      Next, Johnson argues that the evidence did not support the district court’s

deliberate ignorance instruction. We review a challenge to the substance of jury

instructions de novo. United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). “A

deliberate ignorance instruction is appropriate only when there is evidence in the

record showing the defendant purposely contrived to avoid learning the truth.” Id.

(citation omitted). Such an instruction is not appropriate where the evidence only

points to either the defendant’s actual knowledge or lack thereof. Id.

      The district court’s decision to give an instruction regarding deliberate

ignorance is subject to harmless-error analysis. See id. Thus, because juries are

presumed to follow the judge’s instructions, the error is harmless as a matter of law

where (1) “the jury was clearly instructed that a precondition to its application of

the deliberate ignorance instruction was proof beyond a reasonable doubt that [the

defendant] deliberately kept himself ignorant,” and (2) the evidence was sufficient

to support a conviction based on actual knowledge, but not necessarily



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overwhelming. Id. at 937-39.

       We do not need to decide whether the evidence supported a deliberate

indifference instruction because even if such an instruction was erroneous, the

error was harmless. The jury was instructed that it had to find deliberate ignorance

beyond a reasonable doubt. Furthermore, the district court instructed the jury on

actual knowledge, and the evidence supported a conviction based on actual

knowledge.

       Finally, Johnson argues that the district court erred, pursuant to United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), in

sentencing her under a mandatory guidelines system. Johnson did not raise a

constitutional objection to the district court’s application of the guidelines, and

therefore we review this issue only for plain error. See United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866

(2005).1 Under plain-error review, an appellant must show that there was (1) an


       1
         In order to raise a constitutional objection, a defendant must either refer to the Sixth
Amendment, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) or
other related cases, or the right to have the jury decide the disputed fact, or must challenge the judge
acting as fact-finder with regard to sentencing. United States v. Dowling, 403 F.3d 1242, 1245
(11th Cir.), cert. denied, 126 S. Ct. 462, 163 L. Ed. 2d 351 (2005). An objection to the sufficiency
of the evidence does not preserve a constitutional error. Id.
        Johnson did not adequately preserve her Booker claim. First, she stipulated to the amount
of loss and never argued that a jury was required to make that finding or that the government was
required to prove the amount beyond a reasonable doubt. Further, she moved for a downward
departure based on her argument that the court should reduce the “enormous” upward departure
because there was substantial doubt as to the loss amount. In her motion, she mentioned the fact that

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error, (2) that is plain, (3) that affects the appellant’s substantial rights, and (4) that

affects the fairness, integrity, or public reputation of the judicial proceedings. Id.

“[I]n applying the third prong, we ask whether there is a reasonable probability of a

different result if the guidelines had been applied in an advisory instead of binding

fashion by the sentencing judge . . . .” Id. at 1301. The defendant bears the burden

of persuasion with respect to establishing prejudice under the third prong. Id. at

1299.

        Johnson cannot meet her burden to show prejudice under the third prong of

plain-error analysis because nothing in the record indicates that the district court

might have imposed a different sentence under an advisory scheme. In fact, the

district court found that the sentence fulfilled the goals of punishment and

deterrence.

        Upon careful review of the record, and upon consideration of the parties’

briefs, we find no reversible error. Accordingly, we affirm Johnson’s conviction

and sentence.

        AFFIRMED.




the loss amount used to calculate her offense level was not proven at trial, but only in support of her
argument that the amount of loss for the uncharged conduct was uncertain and exponentially
increased her offense level, which she argued warranted a departure. These steps do not satisfy the
Dowling standard.

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