United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 28, 2004
Charles R. Fulbruge III
Clerk
04-60113
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG ALLEN PRUITT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:02-CR-136-ALL)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Craig Allen Pruitt, a paid tax preparer, appeals his
conviction and sentence. He was convicted for 17 counts of aiding
or assisting in the filing of fraudulent federal tax returns in
violation of 26 U.S.C. § 7206(2). A jury found Pruitt filed tax
returns asserting false or fraudulent deductions for business and
bad-debt losses, and the district court, employing the United
States Sentencing Guidelines, imposed a 63-month sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Pruitt contends: the district court abused its discretion by
admitting evidence of a 1987 conviction for filing fraudulent
federal tax returns; the evidence presented at trial was
insufficient to support a conviction; and, his sentence was
calculated incorrectly and based improperly on false returns for
which he was not charged.
We review evidentiary rulings for abuse of discretion. See
FED. R. EVID. 103; e.g., United States v. Peters, 283 F.3d 300, 307
(5th Cir.), cert. denied sub nom Edmonson v. United States, 535
U.S. 1071 (2002). The district court did not abuse its discretion
by admitting evidence of Pruitt’s 1987 conviction. This crime was
essentially identical to the charged offense, and evidence of
Pruitt’s prior crime was relevant to, and probative of, his
knowledge and intent to commit the present offense. FED. R. EVID.
404(b). The probative value of the 1987 conviction was not
outweighed by the danger of undue prejudice. See FED. R. EVID. 403;
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc), cert. denied, 440 U.S. 920 (1979).
When reviewing an insufficient evidence claim, we determine
“whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”. United
States v. Pena, 949 F.2d 751, 755 (5th Cir. 1991). Based on the
evidence before it, a rational jury could have found the essential
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elements of the charged tax crimes beyond a reasonable doubt.
Testimony by Internal Revenue Service (IRS) employees and taxpayers
for whom Pruitt prepared the fraudulent returns provided the
evidentiary basis for a rational jury to determine that Pruitt
willfully aided in the preparation and presentation of documents
that were materially fraudulent or false. See United States v.
Clark, 139 F.3d 485, 489 (5th Cir.), cert. denied, 525 U.S. 899
(1998). Pruitt’s claim that the Confrontation Clause requires the
Government to call every signatory from every fraudulently filed
tax return is misplaced, and the Government was not obligated to
call additional witnesses to disprove every possible theory of
defense. E.g., United States v. Williams, 264 F.3d 561, 576 (5th
Cir. 2001).
We review for clear error a district court’s factual
determinations and imposition of a sentence and de novo its legal
conclusions for applying the Sentencing Guidelines. E.g., United
States v. Hooten, 942 F.2d 878, 880 (5th Cir. 1991). The district
court properly based Pruitt’s sentence on all relevant conduct
pursuant to the Sentencing Guidelines § 1B1.3. An IRS agent’s
detailed testimony established Pruitt’s preparation of many other
false returns. Despite Pruitt’s contention, the claimed tax loss
did not need to be calculated at 28% of the disallowed deductions
because it was based on the IRS’ “more accurate determination” of
actual loss as shown by disallowed refunds. See U.S.S.G.
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§ 2T1.1(c)(1) (comment. n.(B)) (Nov. 1998). The loss amount was
not clearly erroneous. See Clark, 139 F.3d at 490.
Pruitt also asserts the Sentencing Guidelines are
unconstitutional under Blakely v. Washington, 124 S. Ct. 2531
(2004). As he concedes, however, this court has held otherwise.
United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004),
petition for cert. filed, (U.S. 14 July 2004) (No. 04-5263).
Pruitt raises the issue only to preserve it for possible Supreme
Court review.
AFFIRMED
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