United States Court of Appeals
Fifth Circuit
F I L E D
July 27, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 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)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed Craig Allen Pruitt’s conviction for aiding
or assisting in the filing of fraudulent federal tax returns, in
violation of 26 U.S.C. § 7206(2), and his 63-month sentence.
United States v. Pruitt, 04-60113, 2004 WL 2988568 (5th Cir. 28
December 2004). The Supreme Court granted Pruitt’s petition for
writ of certiorari and for leave to proceed in forma pauperis
*
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this opinion should not be published and is not precedent except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.
(IFP); vacated our previous judgment; and remanded the case for
further consideration in the light of United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005). Pruitt v. United States, 125 S.
Ct. 1668 (2005). We requested, and received, supplemental briefs
addressing the impact of Booker. Having reconsidered our decision
pursuant to the Supreme Court’s instructions, we reinstate our
judgment affirming the conviction, but vacate the sentence and
remand to the district court for re-sentencing in accordance with
Booker.
Pruitt contends he preserved Booker-error in district court
when he objected to the Presentence Investigation Report (PSR) used
to calculate his sentence and contended his sentence was based
improperly on false returns for which he was not charged and to
which he did not plead guilty. Therefore, Pruitt asserts his
sentence should be vacated and remanded to the district court for
further consideration. See United States v. Akpan, 407 F.3d 360,
376-77 (5th Cir. 2005). The Government concedes Pruitt preserved
Booker-error in district court, but urges our court to review for
harmless error. Although Pruitt never explicitly mentioned the
Sixth Amendment or Blakely v. Washington, 124 S. Ct. 2531 (2004),
until his appellate brief (he was sentenced several months before
Blakely was rendered), we are satisfied that his objections in
district court adequately appraised the court that he was raising
a Sixth Amendment objection to the basis for the sentence
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calculation because the court considered fraudulent returns
attributable to Pruitt but neither pleaded to nor proved to a jury
beyond a reasonable doubt (he claimed such use was “fundamentally
unfair”). See Akpan, 407 F.3d at 376.
“[I]f either the Sixth Amendment issue presented in Booker or
the issue presented in Fanfan is preserved in the district court by
an objection, we will ordinarily vacate the sentence and remand,
unless we can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.” United States v. Mares, 402
F.3d 511, 520 n. 9 (5th Cir. 2005); see also United States v.
Olano, 507 U.S. 725, 734 (1993) (noting that harmless error applies
when a defendant makes a timely objection to an error). Rule 52(a)
states: “Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded”. FED. R. CRIM.
P. 52(a). “An error affects substantial rights (i.e., is
prejudicial) if it affects the outcome of the district court
proceedings. Consequently, an error is deemed harmless if it did
not affect the outcome of the district court proceedings.” United
States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (internal
citations omitted).
The Government bears the burden of showing that the error was
harmless. Olano, 507 U.S. at 734. To meet this burden, the
Government must demonstrate, beyond a reasonable doubt, that the
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error did not affect the defendant’s sentence. Akpan, 407 F.3d at
377.
The district court committed Booker error by basing Pruitt’s
sentence, under a mandatory guidelines regime, on a greater number
of fraudulent returns than the jury found him responsible. See
Booker, 125 S. Ct. at 756. Accordingly, we must decide whether the
Government has met its “arduous burden” of showing beyond a
reasonable doubt that the district court would have imposed the
same sentence absent the error. Pineiro, 410 F.3d at 287.
The Government contends the record establishes harmless error
beyond a reasonable doubt. The Government maintains the district
court found that the evidence, adduced at trial and submitted in
the PSR, sustained the sentence imposed. The Government also
asserts: the 63-month sentence imposed is less than the statutory
maximum possible for two of the counts for which Pruitt was
convicted; nothing in the sentencing transcript indicates the
district court would have imposed a lesser sentence had the
Guidelines not been mandatory; the district court found there was
no reason to depart from the Guidelines; and the sentence is
reasonable because it falls within the Guidelines range. (Pruitt
does not address harmless error, instead contending, under Akpan,
that his sentence should be vacated and remanded.)
The Government does not meet its “arduous burden”. It points
to no record evidence that proves, beyond a reasonable doubt, that
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the district court would not have sentenced Pruitt differently
under an advisory regime.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED
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