* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-61074

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

USDC No. 1:02-CR-139-ALL

--------------------

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
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

-3-

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.