United States v. Pruitt , 119 F. App'x 629 ( 2004 )


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  •                                                                   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    this opinion should not be published and is not precedent except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
    2
    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.
    3
    § 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
    4