United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2006
Charles R. Fulbruge III
Clerk
No. 05-61074
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG ALLEN PRUITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:02-CR-139-ALL
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Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
Craig Allen Pruitt was sentenced to a 63-month term of
imprisonment, a one-year term of supervised release, and a $6000
fine for seventeen counts of aiding or assisting in the filing of
fraudulent federal tax returns in violation of 26 U.S.C. § 7206(2).
After we affirmed his convictions and sentence in December 2004,
United States v. Pruitt, 119 F. App’x 629 (5th Cir. 2004), the
Supreme Court granted certiorari and remanded the case for
reconsideration in light of United States v. Booker, 543 U.S. 220
*
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this opinion should not be published and is not precedent except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.
No. 05-61074
-2-
(2005). Pruitt v. United States, 544 U.S. 916 (2005). We
subsequently vacated Pruitt’s sentence and remanded the matter for
resentencing. See United States v. Pruitt, 145 F. App’x 851 (5th
Cir. 2005).
On remand for resentencing, the district court sentenced
Pruitt to a 72-month term of imprisonment, a one-year term of
supervised release, and a $6000 fine. Pruitt again appeals,
arguing that the district court’s factual findings at sentencing
cause his sentence to violate principles of due process and his
rights under the Sixth Amendment and that the sentence imposed by
the district court is vindictive.
When a defendant is resentenced post-Booker under an advisory
sentencing regime, the sentencing judge may continue to find by a
preponderance of the evidence all facts relevant to sentencing,
regardless whether the court imposes a sentence under the
Guidelines or a non-guidelines sentence. United States v. Johnson,
445 F.3d 793, 797-98 (5th Cir.), cert. denied, 126 S. Ct. 2884
(2006). We review the district court’s factual findings at
sentencing for clear error and review the interpretation and
application of the Sentencing Guidelines de novo. United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). We find no error in
the district court’s sentencing determinations. United States v.
Smith, 440 F.3d 704, 710 (5th Cir. 2006).
As Pruitt did not raise the issue of a vindictive sentence in
the district court, we review his argument for plain error. United
No. 05-61074
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States v. Vontsteen, 950 F.2d 1086, 1088-89 & n.2 (5th Cir. 1992)
(en banc). In this case, noting that the Sentencing Guidelines are
now advisory rather than mandatory, the district court deviated
from the properly calculated guidelines range and imposed a higher
sentence because it determined that the Sentencing Guidelines did
not properly reflect the seriousness of Pruitt’s offenses, the need
for deterrence, and the need to protect the public. See United
States v. Smith, 440 F.3d 704, 707-10 (5th Cir. 2006); 18 U.S.C.
§ 3553(a)(2). No presumption of vindictiveness attaches when a
district court exercises its post-Booker discretion to impose a
sentence beyond the guideline range. United States v. Reinhart,
442 F.3d 857, 860-61 (5th Cir. 2006). Accordingly, we affirm
Pruitt’s sentence. See Smith, 440 F.3d at 710.
AFFIRMED.