                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 05-14974                NOVEMBER 23, 2007
                          ________________________           THOMAS K. KAHN
                                                                 CLERK
                     D. C. Docket No. 04-00224-CR-TWT-1

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                     versus

CHALANA C. MCFARLAND,

                                                       Defendant-Appellant.


                          ________________________

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

                              (November 23, 2007)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Chalana C. McFarland appeals her conviction and sentence on 170 counts of

money laundering, bank fraud, wire fraud and conspiracy to commit such acts as
well as obstruction of justice and perjury. McFarland asserts that the district court

committed reversible error with regard to the admission of opinion testimony by

certain government witnesses and of evidence that she possessed a false Florida

driver’s license. She also asserts that the 360-month sentence imposed was

procedurally unreasonable either because the district court treated the Sentencing

Guidelines as mandatory, or because the court gave undue weight to the Guidelines

range and to certain factors listed in 18 U.S.C. § 3553(a) without sufficient

consideration of some of the other factors. We affirm McFarland’s conviction and

sentence.

                                 I. BACKGROUND

      McFarland was charged with conspiracy to commit various types of fraud

and money laundering, all in violation of 18 U.S.C. § 371; bank fraud, in violation

of 18 U.S.C. §§ 1344 and 2; wire fraud, in violation of 18 U.S.C. §§ 1343 and 2;

money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i), and 2;

obstruction of justice, in violation of 18 U.S.C. §§ 1503 and 2; and perjury, in

violation of 18 U.S.C. § 1623. The charges arose from the allegation that

McFarland and numerous co-conspirators defrauded mortgage lenders and insured

depository financial institutions by inflating the fair market values of properties

which were then used to secure fraudulent loans for straw buyers. McFarland, who



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was the closing attorney for various lenders and a title insurance agent, wrote title

insurance and closed mortgage loans on these properties, allegedly knowing that

the proceeds would be divided among the co-conspirators rather than disbursed as

had been as disclosed to the lenders. As a result of this conspiracy, lenders lost in

excess of $10 million on more than 100 properties.

      At trial, among other extensive evidence, the government presented the

testimony of Robbie Taylor, who had been Executive Vice President of Attorneys’

Title Fund at the time the fraud took place. Attorneys’ Title Fund had provided

closing protection letters and allowed McFarland to issue title policies for a

number of her closings during the relevant period. Near the end of Taylor’s

testimony, after a series of questions about the procedures and safeguards for real

estate closings Attorneys’ Title Fund emphasizes to its authorized closers, the

following interchange took place:

               Government: Have you become familiar with the problems on the files
      closed by Chalana McFarland in this case through the subsequent claims and so
      forth?
               Taylor: Somewhat.
               Government: Okay. Were the problems here created by fraud or created
      by inexperience?
               McFarland’s Attorney: Objection your honor; calls for a conclusion. It,
      I think, ventures into the realm of the jury.
               Court: What do you say, Miss McKenzie [government attorney]?
               Government: Your honor, she’s familiar with the transactions, has gone
      behind the transactions, and I believe . . .
               Court: You’re going to have to lay a whole lot more foundation than that
      for that question.
               Government: Let me rephrase the question. Maybe she can answer it


                                              3
      specifically. You’re aware that your firm requested specific files of Chalana
      McFarland?
              Taylor: Yes.
              Government: And have you determined through subsequent investigation
      that some of those files you requested at the time were, indeed, flip transactions?
              Taylor: Yes.

R5 at 431-32. McFarland’s attorney made no objection to the rephrasing of the

question or any reference to his previous objection on this point. He asked a few

questions in re-crossexamination and the witness was excused.

      Later, the government called Brenda Brown to testify. Brown had been a

paralegal for McFarland during the relevant period. She had worked on most of

the transactions at issue and, at the time of trial, had already pled guilty to

participation in the mortgage fraud scheme. In the course of questions concerning

an attempted audit of McFarland’s closings by Attorneys’ Title Fund, the

following interchange took place:

              Government: Was the condition of the checks and the non-availability of
      the closing files due to ignorance on your – on the law firm’s part?
              McFarland’s Attorney: Objection, your honor, calls for speculation by
      this particular witness. It enters into the province of the jury.
              Court: Overruled.
              Government: Or was it due to deliberate acts?
              Brown: Deliberate acts.

R9 at 1025-26.

      At another point in the trial, during the testimony of Lisa Bellamy, another

of McFarland’s paralegals during the relevant period, the government began asking

questions about false identification documents obtained by firm employees for use

                                               4
in flip transactions. Before the trial, however, McFarland had filed a motion in

limine seeking to exclude evidence of McFarland’s possession of a false Florida

driver’s license on the ground that, unless direct relevance to the case were clearly

shown, it might constitute impermissible character evidence in violation of Federal

Rule of Evidence 404(b). For this reason, McFarland’s attorney objected to the

question: “Do you know of any identification documents connected with the

defendant in this case?” R8 at 928. The court overruled the objection. However,

as soon as Bellamy brought up the Florida license, and the questions began to turn

to how Bellamy found out about the license, the court reversed its ruling, sustained

the previously made objection, and immediately admonished the jury to disregard

the discussion regarding the Florida license. See id. at 929.

      McFarland’s attorney asked to discuss the issue at the next break in the trial.

During the break, McFarland’s attorney moved for a mistrial on the ground that

evidence of the Florida license, which was not clearly relevant to the case at hand,

had been presented to the jury in violation of Federal Rule of Evidence 404(b).

The district judge stated that he “believe[d] the curative instructions were

adequate” and denied the motion for a mistrial. Id. at 935. McFarland’s attorney

did not ask for any further curative instruction or otherwise argue that the curative

instruction had been inadequate. See id.



                                           5
         At the conclusion of McFarland’s trial, the jury found her guilty of all 170

counts of the indictment against her.

         At sentencing, the district court first calculated the applicable Guidelines

range, to which calculation McFarland admitted no objection. McFarland then

argued the sentence imposed ought to be below the Guidelines range (360 months

to life in prison after the downward departure for cooperation) because each of her

co-defendants had been sentenced to terms ranging from 5 to 87 months and, thus,

for that and other reasons a 360-month sentence did not meet the requirements of

18 U.S.C. § 3553(a). The government argued for a sentence within the Guidelines

range.

         The court distinguished McFarland from her codefendants on the ground

that each of them had accepted responsibility for their actions while she had

“shown no remorse, . . . done nothing but tell one lie after another[, and] . . . done

everything possible to try to obstruct the investigation in this case[.]” R16 at 135.

The district judge then explained his duty to consider all factors listed in 18 U.S. C.

§ 3553(a), painstakingly explained his consideration of several of them and

imposed a sentence at the low end of the Guidelines range. R16 at 172-74, 178.




                                             6
                                  II. DISCUSSION

A. Evidentiary Issues

      McFarland asserts that the court committed prejudicial error by allowing

opinion testimony as to McFarland’s intent by two government witnesses and by

allowing evidence regarding her possession of a false Florida driver’s license. She

also argues that either separately or cumulatively these evidentiary issues constitute

reversible error.

      We review properly preserved challenges to a district court’s evidentiary

rulings for a clear abuse of discretion. United States v. Tinoco, 304 F.3d 1088,

1119 (11th Cir. 2002). In cases of abuse of discretion, we will reverse only if any

error “affected the defendant’s substantial rights.” Id. (citation omitted).

Challenges to evidentiary rulings that are not specifically made at trial are not

preserved and so we review them under the plain error standard. United States v.

Williford, 764 F.2d 1493, 1502 (11th Cir. 1985).

      Fed. R. Evid. 701 permits a lay witness to testify “in the form of opinions or

inferences . . . which are (a) rationally based on the perception of the witness, (b)

helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed. R. Evid. 704 permits lay opinion



                                            7
testimony that is otherwise admissible even if “it embraces an ultimate issue to be

decided by the trier of fact.” We have also recognized that the 2000 addition of

part (c) to Rule 701 was not intended to prohibit lay witness testimony by business

owners and employees “based upon their particularized knowledge garnered from

years of experience within [a given] field,” when that testimony is helpful to the

trier of fact and relevant to the issues presented in the case. Tampa Bay

Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir.

2003).

               1. Taylor’s Testimony

         McFarland’s objection to Taylor’s testimony was sustained by the district

court and so no impermissible testimony was admitted. McFarland now argues

that the testimony elicited by the rephrased question constitutes impermissible

opinion testimony, but her attorney made no such objection at trial. Accordingly,

we review that admission of testimony for plain error.

         A review of the transcript reveals that Taylor functioned as a fact witness,

not as an expert witness. The overwhelming majority of questions preceding the

question at issue here follow a narrative of her personal business dealings with

McFarland and other members of McFarland’s firm. Those questions that do not

ask only for clarification of business terms or personal business practices based on



                                             8
her particularized experience in the title insurance field. The government’s

rephrasing of its question to Taylor and her response draw solely upon her personal

observations regarding her direct experiences in dealing with McFarland’s closing

files. This is further supported by the goverment’s response to McFarland’s

objection: that the testimony should be allowed because Taylor was “familiar with

the transactions, ha[d] gone behind the transactions.” R5 at 431. Accordingly, we

find that the testimony falls squarely within that permitted by Rules 701 and 704.

There was no error, plain or otherwise.

      2. Brown’s Testimony

      Brown’s testimony was allowed over McFarland’s objection and thus is

reviewed for abuse of discretion. We first observe that Brown was also questioned

as a fact witness rather than as an expert. Her testimony drew from her first-hand

observations and experiences of the events and transactions at issue – in this case,

particularly with regard to her own intent, and that of other members of her firm, to

evade an audit by Attorneys’ Title Fund. Second, with respect to her own

participation, her answer to the question cannot be considered an opinion. Third,

to the extent that she answered the question as to others at McFarland’s firm, her

answer was based on her own first-hand impression of the situation. Thus, her

testimony fits squarely within that permitted by Rules 701 and 704. There was no



                                          9
abuse of discretion in the court’s overruling the objection. There is no error.

        3. Driver’s License Evidence

        We review a refusal to grant a mistrial for abuse of discretion. United States

v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (per curiam). If a district court

gives a curative instruction, we will reverse only if the evidence is so highly

prejudicial as to be incurable by the trial court's admonition. United States v.

Delgado, 321 F.3d 1338, 1347 (11th Cir. 2003) (quotations omitted).

        McFarland’s objection with respect to admission of testimony regarding the

false Florida driver’s license was ultimately sustained. The court denied

McFarland’s motion for mistrial on the ground that it had given a sufficient

curative instruction to the jury. McFarland did not then 1 and does not now argue

how the instruction was insufficient to cure any harm caused by the evidence. We

find that a passing mention that McFarland possessed a false Florida driver's

license in the context of all the other testimony and evidence in this case as to her

specific conduct in connection with the fraud is not so highly prejudicial as to be

incurable by the trial court's admonition. We find no abuse of discretion.

        The cumulative effect of multiple errors may require reversal of an


        1
         McFarland asserts that her lawyer argued the curative instruction was insufficient at
trial, Appellant’s Brief at 46-47, but the portion of the trial transcript she cites for that assertion
does not reflect any such argument, nor does any other portion as far as we can see. See R8 at
935.

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appellant’s conviction where, in combination, those errors prejudice a defendant’s

right to a fair trial. Ramirez, 426 F.3d at 1353. Of the three issues McFarland

raises, however, only one actually resulted in evidence wrongly admitted: the

driver’s license testimony. Accordingly, there can be no cumulative error, and, as

previously discussed, any harm from the driver’s license testimony was cured by

the judge’s instruction to the jury.

B. The Sentence

      McFarland argues that the district judge effectively treated the Guidelines as

mandatory. In particular, she points to the judge’s statement that he felt it was his

“duty” to impose a Guidelines sentence. R16 at 172. She also argues that her

sentence is unreasonable because even if the court did not treat the Guidelines as

mandatory, the judge gave undue weight to the Guidelines, the concept of

deterrence, and her failure to acknowledge her guilt, and failed properly to consider

other § 3553(a) factors.

      First, we have recognized that application of the Guidelines as mandatory, as

opposed to advisory, is statutory error under United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005). United States v. Shelton, 400 F. 3d 1325, 1330-31

(11th Cir. 2005). At sentencing, the judge did say he would “impose a Guidelines

sentence in this case . . . because [he thought that it was his] duty in this case.”



                                            11
R16 at 172. However, the judge immediately clarified any ambiguity in that

statement by explaining that”[i]n terms of deciding whether or not to impose a

Guidelines sentence, I’m required to consider the factors in Section 3553(a) of

Title 18.” Id. The broader context of the judge’s remarks, his explicit reference to

an obligation also to consider § 3553(a) factors, and his detailed explanation of the

reasoning behind the sentence imposed make it clear that he did not believe he was

required to impose a Guidelines sentence. The court felt duty bound - not legally

bound - to sentence within the Guidelines range. We see no statutory error under

Booker.2

       Second, we review sentences imposed under the post-Booker advisory

Guideline scheme for reasonableness. United States v. Winingear, 422 F.3d 1241,

1244 (11th Cir. 2005) (per curiam). We have held that in sentencing, the district

court must first correctly calculate a defendant’s Guidelines range. United States

v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Then, in consideration of the



        2
         Because McFarland failed to raise any objection to her sentence based on perceived
mandatory application of the Guidelines before the district court, we review this issue under the
plain error standard. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied
545 U.S. 1127, 125 S. Ct. 2935 (2005). Under the plain error standard, McFarland must show
that (1) there was error; (2) that the error was plain; and (3) that the plain error affected her
substantial rights. Id. A defendant’s substantial rights are affected when there is a reasonable
probability that the district court would have imposed a different sentence if it had not believed
the Guidelines to be mandatory. Id. at 1299. Finally, the court may notice such an error only if
it seriously affected the fairness, integrity or public reputation of the judicial proceedings. Id. at
1298. Because we find no error, we proceed no further with this analysis.

                                                  12
sentencing factors listed in 18 U.S.C. § 3553(a), the court “may impose a more

severe or more lenient sentence as long as [it] is reasonable.” Id.

      Our review for reasonableness is deferential. United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) (per curiam). “We must evaluate whether the

sentence imposed by the district court fails to achieve the purposes of sentencing as

stated in section 3553(a),” and “we recognize that there is a range of reasonable

sentences from which the district court may choose.” Id. We have also noted that

“ordinarily we would expect a sentence within the Guidelines range to be

reasonable.” Id. The Supreme Court has approved even the more formal adoption

of a presumption of reasonableness for sentences imposed within the Guidelines

range. Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2462-65 (2007). The

Court explained that such a presumption is equal to an appeals court’s recognition

“that when the [sentencing] judge’s discretionary decision accords with the

[Sentencing] Commission’s view of the appropriate application of § 3553(a) in the

mine run of cases, it is probable that the sentence is reasonable.” Id. at ___, 127 S.

Ct. at 2465 (citing Talley as an example). We have further held that “nothing in

Booker or elsewhere requires the district court to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the §

3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). A



                                           13
district court’s statement that it has considered the § 3553 (a) factors alone is

sufficient. Id. at 1330.

      At the sentencing hearing, the district court first correctly calculated the

Guidelines sentence. McFarland does not challenge that calculation. The court

then explicitly recognized a duty to consider the factors listed in 18 U.S.C. §

3553(a). The court also considered McFarland’s argument as to why a sentence

below the Guidelines range might be appropriate. In rejecting her arguments, the

court explained that, due to specific factors listed in §3553(a), he believed a

Guidelines sentence to be appropriate. We agree. Accordingly, we find the

sentence to be reasonable.

                                 III. CONCLUSION

      McFarland appeals her conviction and sentence on 170 counts of various

types of fraud and money-laundering. Because we find that any evidentiary error

was cured by the court’s admonition and because we find the sentence imposed to

have been both procedurally and substantively reasonable, we AFFIRM

McFarland’s conviction and sentence.




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