The Eleventh Circuit Affirms a 30 Year Sentence for a White Collar Offense

 

In a case that illustrates both the severity of punishment for white collar offenses, as well as the need to develop a sound sentencing strategy early in the process, the Eleventh Circuit affirmed the conviction and 30 year sentence of Chalana McFarland.

 

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; wire fraud, in violation of 18 U.S.C. §§ 1343; money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i),; obstruction of justice, in violation of 18 U.S.C. §§ 1503; 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 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. McFarland was convicted on all counts.

 

At her sentencing hearing, McFarland did not object to the perceived mandatory application of the guidelines. The Court determined the proper guideline range based on a number of factors including the amount of money which changed hands, obstruction of justice, perjury and other factors. After applying all the factors the Court determined the guideline range was 360 months to life in prison. The Court sentenced McFarland to 360 months, the lowest possible guideline sentence.

 

Ms. McFarland appealed, arguing the 30 year sentence 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.

 

In rejecting her appeal the Eleventh Circuit noted the application of the Guidelines as mandatory, as opposed to advisory, is statutory error under United States v. Booker, 543 U.S. 220 (2005) and United States v. Shelton, 400 F. 3d 1325, 1330-31 (11th Cir. 2005). However in this case the Court determined the District Court judge considered the guidelines as advisory even though the judge said he felt a “duty” to impose a guideline sentence.

 

After determining the Judge did not apply the guidelines in a mandatory nature the Court turned to the issue of whether the sentence was reasonable, applying United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005) (per curiam). The Court acknowledged that in the Eleventh Circuit the first issue of reasonableness is determining whether the guideline range is calculated properly. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Then, a Judge must consider the sentencing factors listed in 18 U.S.C. § 3553(a). After considering all the factors the court “may impose a more severe or more lenient sentence as long as [it] is reasonable.” Id.

 

A sentence is rarely overturned because it is unreasonable. In determining reasonableness the Eleventh Circuit is deferential to the district court. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). The court evaluates “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. The Court further notes that a sentence in the guideline range is presumptively reasonable. Id. In addition the Eleventh Circuit, the United States 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).

 

McFarland is an excellent example of the need to formulate a sentencing strategy from the beginning of the case. Many co-defendant’s in McFarland cooperated and received between 5 months and 60 months. McFarland put up a daring fight, but in the end lost, and will be paying for the decision for the next 30 years.

 

At Wooldridge and Jezek, LLP we form a sound sentencing strategy from day one. We do so not to discourage going to trial, but rather to make sure our clients understand all their options. A defendant facing 30 years in prison must wage a much different battle than a defendant facing 5 months to 5 years. In today’s landscape of severe prison sentences, your trial strategy must be a reflection of your Sentencing strategy.

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